cestat ruling - tiol

CESTAT RULING

2011-TIOL-666-CESTAT -MUM

SGS India Pvt Ltd Vs CST, Mumbai (Dated: February 10, 2011)

Foreign parties requisitioning the services of the appellant to inspect/test/analyse samples of the goods in India and provide certificates guaranteeing import-worthiness – consideration for such services paid in convertible foreign exchange not liable to Service Tax – CBEC has held export of services as tax-free notwithstanding the notifications – Appeal allowed: CESTAT

Also see analysis of the case

2011-TIOL-665-CESTAT -DEL

M/s Manglam Yarn Agencies Vs CCE, Jaipur (Dated: January 17, 2011)

Service Tax - Stay / Dispensation of pre -deposit - Business Auxiliary Service - Export of Service - Payment received in Indian Currency - Assessee provided services to client located in Nepal and received payment in Indian Currency. Conditions laid down in Export of Service Rules not satisfied. Prima facie case for waiver of pre -deposit not made out. Pre -deposit ordered. (Para 5)

2011-TIOL-661-CESTAT -BANG

M/s Sri Chaitanya Educational, Committee Vs CC, CE&ST, Hyderabad(Dated: April 18, 2011)

Service Tax - Commercial Coaching - Stay - Criteria for Pre-Deposit : the law which has evolved regarding the granting of interim stay to the assessee in tax matters can be basically put into in the category of whether the said pre-deposit would create undue hardship, and safeguarding the interest of the Revenue.

A t least four judgments in favour of assessee - during the relevant period, there were at least four judgments and orders of this Tribunal which indicated that the institutions which were of not commercial nature or were of charitable nature, were not covered under the definition of "Commercial training or co aching centre". It is also to be noted that in the case in hand before, it is not the case of the Revenue that the appellant was not a charitable institution. The question, whether a charitable institution even if it provides the services of commercial tra ining and coaching would be covered under the definition was brought into the statute by a retrospective amendment which would indicate that the view taken by the Bench as regards the institutes which are charitable in nature were not covered under the definition, was a possible view. It is seen that this view could be entertained by the appellant before due to factual matrix as well as the decided case laws on the issue.

Attached property valued at Rs. 27 Crores secures Revenue interest - Further deposit waived : the property which has been attached by the lower authorities can be

considered as enough security to safeguard the interest of the Revenue. Since it had come to a conclusion that during the relevant period, the appellant could have entertained a view that he is not liable to discharge service tax on 'commercial or coaching centre' being a charitable institution, and also keeping in mind the direction of the Hon'ble High Court and the fact that the lower authorities have attached property worth Rs.27 crores and the said attachment has been extended till 03/09/2011, the interest of the Revenue is secured.


2011-TIOL-660-CESTAT -MAD

Indian National Trust For Art And Cultural Heritage Vs CCE, Puducherry (Dated: January 10, 2011)

Service Tax - Stay/Dispensation of pre-deposit – Applicant is a society registered under the Societies Registration Act, 1860 and cannot be treated as commercial concern – Prima facie case made out for waiver of pre-deposit.


Samarth Sevabhavi Trust Vs CCE, Aurangabad (Dated: April 8, 2011)

Appellant undertaking the job of cutting and transportation of sugar cane grown by SSK Ltd. by arranging for tools and labourers – provisions of agreement have to carefully examined – No case made out against demand of Service Tax under the head ‘Manpower Supply' – Pre -deposit ordered



CST, New Delhi Vs M/s Kuoni Travel (India) Ltd (Dated: January 13, 2011)

Service Tax - Waiver of Penalty - Section 80 - The Commissioner has rightly exercised the discretion of not imposing penalty under Section 78. There are sufficient reasons for failure on the part of the assessee to pay tax, to get relief under Section 80 of the Finance Act, 1994.(Para 6 & 9)


CCE, Madurai Vs M/s Stangl Pickles & Preserves (Dated: February 3, 2011)

Service Tax – CENVAT – GTA – Input Service – Outward Freight – Credit of Service tax paid on GTA service for the transportation of finished goods meant for export on FOB basis from the factory gate to the Port is eligible as input service. (Para 5.2)


Shri T V Ramesh Vs CCE, Madurai (Dated: January 31, 2011)

Service Tax – Revision – Section 84 of the Finance Act, 1994 - Appeal to Commissioner (Appeals) – The order-in-original is challenged before Commissioner (Appeals) - Revision proceeding on the same order-in-original by Commissioner is not permissible. (Para 6)

2011-TIOL-644-CESTAT -AHM

M/s Voltas Ltd Vs CST, Ahmedabad (Dated: March 1, 2011)

Service Tax - Maintenance and repair - Commissioning & installation - Business auxiliary service - Demand - Stay / Dispensation of pre-deposit - The assessee did not pay service tax on the gross value charged to the customers but paid only on labour charges - Commissioner has categorically held that assessee not aware of the value of the goods. However, invoices show value of goods supplied. Assessee directed to deposit Rs. 20 Lakhs. (Para 4)


CCE, Rohtak Vs SBI (Dated: January 14, 2011)

Service Tax - Stay / Dispensation of pre -deposit Banking Service - Valuation - Expenses on postal charges - COD clearance - Whether the amounts recovered by the Bank from their customers showing the charges as expenses incurred on postal services for rendering banking services to the customers liable to service tax? Bank is in the business of providing banking service and not postal service. The expenses incurred are incidental. Stay granted till a decision in taken in the matter by the Committee on Disputes. (Para 4 & 5)


M/s Birla Textile Mills Vs CCE, Chandigarh (Dated: January 28, 2011)

Service Tax - Service from Foreign Service Provider - Recipient of service from foreign based firms liable to pay service tax only from 18.04.2006, the date from which Section 66A came into force. (Para 6 & 7)


M/s GMK Concrete Mixing Pvt Ltd Vs CST, Delhi (Dated: August 28, 2010)

Service Tax - Commercial or Industrial Construction Service - Supply of RMC - Stay / Dispensation of pre-deposit - Assessee besides supplying ready mix concrete also providing service such as transporting, pumping, laying, placing & fixing of RMC at the site of construction. The primary activity of supply of ready mix concrete without satisfying elements of Industrial and commercial construction services to be examined in the course of regular hearing. Requirement of pre-deposit dispensed with. (Para 5)


M/s Reliance Industries Ltd Vs CCE, Vadodara (Dated: May 4, 2011)

Service Tax - Deploying man power, not service under - Consulting Engineer - the deputation of manpower to HPL by the appellant cannot qualify as the service provided by 'Consulting Engineer'. Similarly, the activities undertaken by the appellant as per the agreement dt. 28.10.98, cannot be considered as 'advice', 'consultancy' and 'technical assistance' in nature.

No deliberate suppression - no extended period of limitation: Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability for the extended period of limitation.



CCE & CC, Nashik Vs Mahindra & Mahindra Ltd (Dated: February 15, 2011)

Respondent received technical know-how and assistance from foreign collaborator for manufacturing ‘Scorpio' vehicles – nature of transaction indicates that it involves IPR services which is not taxable prior to 10.09.2004 – said transactions are not chargeable to service tax under head ‘Consulting Engineering Service' – decision in Navinon [2004-TIOL-710-CESTAT -Mum] and Bajaj Auto [2004-TIOL-970-CESTAT -Mum ] can be followed as precedent in absence of stay of operation of those orders – Revenue appeal rejected.


Jitendra Wheels (N) Pvt Ltd Vs CCE, Nasik (Dated: April 8, 2011)

Determination of applicability of Notfn 13/03-ST dated 20.06.2003 has a direct impact on the rate of service tax payable by the appellant – therefore as per the provisions of section 35D(3)(a), the matter has to go before the Division Bench – Mistake apparent on record – Order recalled and appeal restored for consideration and disposal by Division Bench



M/s BSNL Vs CCE, Trichy (Dated: February 4, 2011)

Service Tax – Stay / Dispensation of pre-deposit - CENVAT – Capital goods transferred from one circle to another circle of the appellant - Authorised document – COD Clearance – Appeal for restoration - The clearance from Committee on Disputes is obtained and placed on record. Application for restoration of appeal allowed. Capital goods procured by the Madurai Circle of BSNL was transferred to Kumbakonam Circle of BSNL and the documents based on which credit was taken is not authorized document. There is no dispute about the duty paid nature of the capital goods and receipt of the same and use for the intended purpose by the applicant. Therefore, prima facie, a case for waiver of the dues as per the impugned order is made out. Pre -deposit waived. Stay granted. (Para 3 & 5)


Kundan Castings Vs CCE, Kanpur (Dated: February 11, 2011)

Service Tax - Commission received by sub-broker - Demand - Stay / Dispensation of pre -deposit - The main contractor has discharged service tax liability on the commission received from mutual fund companies and then passed on some of his share of commission re ceived to the sub-broker. Assessee claims that service tax is not liable to be paid by the sub-broker as Finance Act does not provide for double taxation of the services. Prima facie case made out. Stay granted along with waiver of pre -deposit of demand and penalties. (Para 5 & 6)


CST, Ahmedabad Vs M/s Dishman Pharma & Chemical Ltd (Dated: April 5, 2011)

Service Tax - Banking and financial services received from abroad - not taxable prior to 18.04.2006 : Inasmuch as the issue is covered by Hon'ble Mumbai High Court and confirmed by Hon'ble Supreme Court [2009-TIOL-129-SC-ST ] , the High Court found no infirmity in the order of Commissioner(Appeals).



Chemplast Sanmar Ltd Vs CCE & ST, Chennai (Dated: January 5, 2011)

Service Tax – CENVAT – Evidence for availing service - Since the assessees are in a position to provide all the details regarding the nature and the place of usage of the service, the claim for credit is required to be verified afresh. Matter remanded. (Para 4)


CST, New Delhi Vs M/s Independent News Services Pvt Ltd (Dated: March 22, 2011)

Service tax - Section 73(3) of Finance Act, 1994 - After making provision in law, the Revenue should respect the provision made rather than feel aggrieved that the provision is too lenient



M/s International Travel House Ltd Vs CST, Chennai (Dated: February 7, 2011)

Service Tax – Taxability of service – Tour Operator - Stay / Dispensation of pre -deposit service - Service provided by the appellants is planning, scheduling, organizing or arranging tours including arrangements for accommodation, sight-seeing or other similar services for outbound tourism and they are being paid for the said purpose in India. Prima-facie no case made out by the assessee. Pre-deposit ordered. (Para 5)


M/s Maize Products Vs CCE, Ahmedabad (Dated: March 11, 2011)

Service Tax - CENVAT - Refund - Examination of documents - On appeal by the Revenue before the Commissioner (Appeals) against the refund sanctioned, Commissioner (Appeals) allowed the appeal on the ground that necessary documentary evidence has not been produced by the assessee before the

Commissioner (Appeals).

HELD - It is basically for the Revenue to submit documents in support of their contention that some of the documents verified and examined by the original adjudicating authority were not correct cenvatable documents. Matte r remanded to the original authority for verification of the documents. (Para 4)


Indoworth (India) Ltd Vs CCE, Nagpur (Dated: April 1, 2011)

In respect of Service Tax appeal, the Bench has no discretion to refuse to admit an appeal - reason being there is no provision similar to section 35B(1) of CEA, 1944 in section 86 of the Finance Act, 1994.



M/s Shilpkar Interiors Designers Consultant Pvt Ltd Vs CST, New Delhi (Dated: April 1, 2011)

Service Tax – Commercial or Industrial construction service – Denial of exemption under Notification No 15/2004 ST dated 10.9.2004 on the ground that the service undertaken were only finishing services - Appellant plead that the services are taxable only with effect from 1.6.2007 under works contract – Matter remanded to examine the pleadings in the light of decision of Tribunal in Alstom Projects Ltd. vs. CCE, Delhi (2011-TIOL-459-CESTAT-DEL)


M/s Satish Kumar Contractor Ltd Vs CCE, Panchkula (Dated: February 23, 2011)

Service Tax - Construction Service - Demand - Stay / Dispensation of pre -deposit - The demand of service tax for construction of residential flats is stayed. However, on the question of jurisdiction that the Commissioner with whom they are registered does not have jurisdiction at the place of construction is not acceptable. Assessee directed to deposit 50% of tax liability under dispute on account of jurisdiction and 100% of the tax liability already accepted. (Para 3 & 5)


M/s VPR Mining Infrastructure Pvt Ltd Vs CCE, Hyderabad (Dated: March 29, 2011)

Service Tax – Value of diesel and explosives supplied free of cost to service provider includible in taxable value for payment of service tax – 'Gross amount' referred to in Notification 1/2006-ST has to be the same as referred to in section 67 of Finance Act since a notification cannot grant exemption from tax on a value higher than the taxable value on which tax is otherwise due – Benefit of Notification No. 12/2003-ST also not available as there is no ingredient of sale of goods by service provider to service recipient – Pre-deposit of Rs. 10 crores ordered



M/s Instrumenatation Ltd Vs CCE, Jaipur (Dated: March 14, 2011)

Service Tax - Consulting Engineer - The preparation of basic engineering drawings & detailed engineering drawings, on the basis of which erection and installation work is done and training of the clients' personnel in operation & maintenance of the equipments installed is clearly technical assistance provided to the clients and hence the same is covered by the definition of Consulting Engineer's services.


CCE, Tirunelveli Vs DCW Ltd (Dated: January 7, 2011)

Service Tax – CENVAT – Input service - Credit is admissible in respect of service tax paid on passenger air fare; service tax paid on servicing charges and insurance charges of company vehicle; and service tax paid on residential telephone lines of the staff of the assessee. (Para 3)


M/s Anil Kumar Yadav Vs CCE, Pondicherry (Dated: January 20, 2011)

Service Tax – Penalty – Once the lower adjudicating authority extended the benefit of Section 80 in respect of penalties under Section 76 and 77, he should have waived penalty under Section 78 also – Section 80 does not authorize the adjudicating authority to waive the penalties under some of the listed sections and to impose penalty under some of them – Penalty under Section 78 cannot be sustained.


Petron Civil Engineering Pvt Ltd Vs CCE, Salem (Dated: January 24, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Inclusion of free supply materials such as cement and steel in the assessable value of the commercial and industrial construction service – Prima facie case has been made out for waiver of pre -deposit in view of the Tribunal's stay order in case of Gulf oil Corporation Ltd.


M/s Deccan Chromates Ltd Vs CCE, Hyderabad (Dated: January 31, 2011)

Service Tax – GTA – Once the GTO discharges the tax liability, the recipient is not required to discharge the same liability; It was argued for the appellants that once the GTA had paid the tax, the recipient was not required to discharge the same liability. It is submitted that the above position has been settled by the decisions of the Tribunal in the case of Sakthimasala Pvt. Ltd. Vs. CCE, Salem and in the case of Navyug Alloys Pvt. Ltd. Vs. CCE& C, Vadodara -II 2008-TIOL-2156-CESTAT -AHM . The Commissioner has not examined this argument in proper perspective.

75 percent abatement – certificate of non availing CENVAT Credit need not be for each invoice; DCL has now furnished a certificate in terms of the Notification No.32/04-ST from the transporter as envisaged in the said notification to the effect that it had not availed benefit of the Cenvat Scheme. Citing a catena of case laws it was argued that the assessee was entitled to the benefit of the notification on the strength of the certificate. There was no condition in the notification that such certificate should be there on each consignment note. This certificate was not produced before the adjudicating authority. There is merit in the claim of the assessee based on case laws. This aspect of the dispute needs a second look.

Credit on tax paid on poutward freight – matter pending in High Court – all issues remanded: The cenvat credit disallowed and demanded also relates to credit taken on photocopies of duty paying documents as well as service tax paid on freight incurred for outward transportation. This dispute is at present pending before the Hon'ble High Court of Karnataka in the ABB case.


M/s GEO-TECH Construction Co Pvt Ltd Vs CCE, Cochin (Dated: March 8, 2011)

Service Tax – Works Contract not taxable prior to 1.6.2007 – Waiver of Pre -deposit and stay granted: the assessee has made a strong prima facie case against the demand based on several judicial authorities, for instance, the Turbotech and Cemex Engineers. Works Contract could not be taxed under another head prior to 01.06.2007. The Larger Bench decision in the case of CCE, Raipur Vs. BSBK Pvt. Ltd. ( 2010-TIOL-646-CESTAT -DEL-LB ) cited by the JCDR had dealt with severability of a composite contract. It was held that the ratio to the contrary laid down in Daelim Industrial Co. Ltd.- ( 2003-TIOL-110-CESTAT-DEL ) was wrong. This Larger Bench decision was not on the point of exigibility of Works Contract prior to 01.06.2007.


Sunil Hi-Tech Engineers Ltd Vs CCE, Nagpur (Dated: March 23, 2011)

Service Tax – If main contractor pays Service Tax, should sub-contractor pay – Matter remanded - "oppressive" circular should be given only prospective effect: The learned Commissioner, without considering those circulars laid his hands on the circular dated 23.8.2007, which clarified that the sub-contractor was also liable to pay service tax irrespective of any payment of such tax by the main contractor. It appears, the learned Commissioner considered the circular dated 23.8.2007 to be of retrospective operation to cover the period of dispute in this case. One of the contentions which apparently escaped the attention of the learned Commissioner was that an "oppressive" circular should be given only prospective effect and that the benefit of a previous beneficial circular must be given to the assessee.



M/s Indian Oil Corporation Ltd Vs CST, Chennai (Dated: January 27, 2011)

Service Tax – Lease rental – Penalty – Extended period – Suppression of facts - In view of the fact that the assessees had disclosed about the existence of two separate agreements, one for leasing of storage tanks located in their premises and the other for various other services rendered such as de-loading etc. although to the Assistant Commissioner (Central Excise), Chennai-I Commissionerate and not to the Chennai-II Commissionerate, the charge and finding of suppression with intention to evade tax is not sustainable. Accordingly, the penalties are set aside.


CST, Chennai Vs M/s E-Care India Pvt Ltd (Dated: January 7, 2011)

Service Tax – Refund – Unutilised credit - Registration – No registration is required with the Service Tax authorities for claiming refund of unutilised credit.


M/s Ogilvy & Mather Pvt Ltd Vs CCE, Thane (Dated: April 15, 2011)

Production of documentary evidence for exclusion of reimbursable expenses from gross taxable value – appellant failing to convince whether the same was produced before the assessing and adjudicating authority – no remand can be ordered instantly without ascertaining the facts - Pre-deposit ordered of Rs.10 lakhs: CESTAT



M/s Small Industries & Development Bank Of India Vs CCE, Chandigarh (Dated: January 20, 2011)

Service Tax - Banking and other financial services - The activity of foreclosure of loan cannot be treated as "banking and financial services." - Demand of service tax on such amount received towards foreclosure is not sustainable.


CCE, Jaipur Vs M/s Galaxy Data Processing Centre (Dated: January 18, 2011)

Service Tax – Business Auxiliary Service – Work of data processing using custom made software deserves to be considered as Information Technology Services. - During the period prior to 1.5.2006, the definition clearly exclude the Information Technology Services from the ambit of "Business auxiliary services" the activities undertaken by the assessees are not taxable under the category of "Business auxiliary services".


M/s Ahluwalia Contracts (India) Ltd Vs CST, New Delhi (Dated: January 18, 2011)

Notification 1/2006-ST - Availment of an abatement of 67% of the value of the taxable services, without including the value of the freely issued goods would defeat the very purpose of the notification – issues involved in the present appeal are contentious and arguable - Pre -deposit ordered of Rs.5 Crores.


M/s Norasia Container Lines Vs CCE, New Delhi (Dated: March 24, 2011)

Service Tax – Exemption under Notification No 4/2004 ST denied on the ground that the services were not “consumed within SEZ” - The notification No.4/2004 uses expression "for consumption of services" within such "Special Economic Zone", but at the same time also uses the expression "taxable services provided to a unit of the SEZ". Both the expressions are required to be read harmoniously – Rule 31 of the SEZ Rules also states that exemption from service tax is available to services rendered to a unit in the SEZ for the a uthorised operations – Exemption is allowed.


M/s B Rama Rao & Company Vs CC, CCE & ST, Hyderabad (Dated: March 29, 2011)

Service Tax – Construction falling under Works Contract Service Taxable prior to 1.6.2007 – Prima facie case in favour of Revenue – Pre -deposit ordered: There is nothing in any provision of the Finance Act, 1994 from which it can be inferred that the taxable services, as defined in various clauses of Section 65 (105), have to be pure services not involving the use or supply of any goods or that such services would not be taxable if the same involve use or supply of any goods or materials. In fact, from various exemption notifications issued under Section 93(1) of the Finance Act, 1994 in respect of 'erection, installation or commissioning service', 'commercial or industrial construction service' or 'construction of complex service' which provide exemption by way of abatement from the gross amounts charged for the service which includes the value of the goods used/supplied in the course of providing the service, it is clear that the intention of the Legislature was always to treat the gross amount charged for these services including the value of the goods used as the measure of the tax. Prima facie there is merit in the department's contention that the services provided by the appellant were taxable even during the period prior to 1.6.2007 on which admittedly, no Service Tax has been paid as such. The appellant therefore cannot be said to have established a prima facie case in their favour and therefore, this is not a case for total waiver.



M/s Desert Inn Ltd Vs CCE, Jaipur (Dated: March 29, 2011)

Service Tax – Valuation – Parking charges collected separately in relation to Mandap Keeper service are includable in taxable value - The car parking charges were collected from the client who hired the Mandap and not from the persons who were parking their cars in that car parking - Hence these services of car parking was in relation to use of the Mandap Keeper and demand of service tax is sustainable.

Suppression – Plea that the amount was shown in the balance sheets and hence extended period cannot be invoked - In this case it was not coming out from the balance sheet whether these car parking charges are collected by the appellants from the same client using Mandap facility or not – Demand under extended period upheld.

Penalty both under Section 76 and 78 cannot be imposed simultaneously – Penalty under Section 78 is upheld and under Section 76 is set aside.


M/s ITC Ltd Vs CCE, Guntur (Dated: March 29, 2011)

Service Tax - Recipient of GTA service who is not engaged in providing any taxable output service or manufacture of dutiable final product not entitled to utilize CENVAT Credit A/c for discharging service tax on GTA services - Legal fiction created under explanation to Rule 2(p) is applicable only to persons who do not provide any output service or manufacture any dutiable final products and not to persons who provide some taxable service / services and /or manufacture some dutiable final products . - Such persons are liable to pay service tax only through cash and not entitled to utilize CENVAT Credit A/c for which another legal fiction is required to be provided which is not available in CENVAT Credit Rules, 2004 ñ Since statutory returns were filed providing details of CENVAT Credit availed and utilized, penalty not leviable under section 78 - Demand with interest upheld and penalty set aside



M/s Daurala Sugar Works Vs CCE, Meerut (Dated: February 4, 2011)

Service Tax – Packaging and bottling of liquor is covered by the definition of manufacture as defined under Section 2(f) of Central Excise Act, 1944 and will not attract any service tax liability.


M/s Intas Pharmaceuticals Ltd Vs CST, Ahmedabad (Dated: March 4, 2011)

Refund of service tax paid on courier service, banking service and GTA service used for export has been rejected on the ground that there is no proper linkage between the documents produced for claiming credit and actual export that has taken place - No purpose will be served in requiring the claimants of refunds to produce multiple copies of same documents in respect of each and every individual claim of service tax credit – claim would become bulky.

If the exporter produces one copy of the shipping bills and ARE-1 and there are several services utilised in connection with the shipping bill and ARE-1 in respect of each service, it would be sufficient if the invoice is produced since it is possible to link the export goods and the service availed with the help of invoice - view taken by the Revenue that invoice is not sufficient to link the export goods with the export cannot be sustained – matter remanded for examining the claim once again.


M/s Instrumentation Ltd Vs CCE, Jaipur (Dated: February 21, 2011)

Applicants are having a common account and they have utilized the entire credit against the output services and have not utilised the credit for clearing manufactured products – in Cenvat Credit Rules, no where it is specified that if an assessee is

engaged in both activities i.e. manufacturing and providing services, the assessee has to maintain separate cenvat credit account of input/output service - Prima facie, the availing of credit or its utilization cannot be denied - Applicants have made out a strong case in their favour – Pre-deposit waived and stay granted.


M/s Symrise Pvt Ltd Vs CCE, Chennai (Dated: January 28, 2011)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit taken on Outdoor Catering Services – Pre-deposit waived in the light of judgement of Bombay High Court in Ultratech Cement Ltd and Ahmedabad High Court in Ferromatik Milacron India Ltd.


M/s Inox India Ltd Vs CCE, Vadodara (Dated: March 18, 2011)

Service tax paid in respect of GTA services for inward transportation of containers and detention charges, prima-facie admissible as credit - appellant has a strong prima facie case in their favour – Pre -deposit waived and stay granted.


Bharat Sanchar Nigam Ltd Vs CCE, Aurangabad (Dated: March 18, 2011)

Although the appellant, a PSU, does not have malafides to avail excess credit but since they have contravened the provisions of law by taking the excess credit, penalty is imposable: CESTAT



CCE, Madurai Vs M/s Ayya Communications (Dated: January 14, 2011)

Service Tax – Penalty – Appeal by revenue against waiver of penalties under Section 80 – Since the assessee is not a new assessee and they were under service tax from 1.7.2003 and were also registered with the department, provisions of Section 80 cannot be extended – Department's appeal is allowed by restoring the penalty under Section 76.


M/s Invincible Security Vs CCE, Noida (Dated: March 17, 2011)

Service Tax - TDS? Tax paid by the service recipient instead of provider - Demand and penalty quashed: in this case the service tax liability and interest have has been discharged, though not by the service provider but by the person who received the service. So there are technical violations of the relevant laws. However considering that these difficulties were caused due to the improper stand of a Government Company, inclined to take a lenient view in the matter. Since all duties have been remitted into the treasury as per submission of the Appellant the related demands made in the impugned order waived. Further invoking the provisions of section 80 of the Finance Act, 1994 all penalties imposed in the impugned order dropped.



M/s Hanuman Coal Co Vs CCE, Kanpur (Dated: January 18, 2011)

Service Tax – Clearing and Forwarding Agent service – Appellants arranged transportation of coal by paying freight and arranged issuance of railway receipts etc – Such type of service would not be covered by clearing and forwarding agent services.


M/s Selvel Media Service Pvt Ltd Vs CST, Delhi (Dated: March 17, 2011)

Service Tax - Advertising - Claim that main contractor paid the Service Tax - Matter remanded to verify whether the main contractor paid the tax : this matter needs examination at the end of the original authority to verify whether the main contractor has discharged the service tax liability or not. The appellant shall provide the copies of invoice to the adjudicating authority to verify whether the main contractor has discharged the service tax liability or not. With these directions, after setting aside the impugned order, the matter remanded to the original authority to verify whether the main contractor has discharged their service tax liability and to pass appropriate order after giving a reasonable opportunity to the appellants to present their case.



CST, Chennai Vs Newton Plastic Inc (Dated: December 21, 2010)

Service tax – Clearing and Forwarding Agent service – Del Credere agent is not liable to service tax as Clearing and Forwarding agent.

2011-TIOL-538-CESTAT -MAD-LB

Western Agencies Pvt Ltd Vs CCE, Chennai (Dated: March 29, 2011)

Service Tax – Port Services – No provisions of Major Port Trusts Act, 1963 other than clause (q) of Section (2) or no provisions other than clause (4) of Section (3) of the Indian Ports Act, 1908 are applicable to interpretation of "port service" defined under Section 65(82) of the Finance Act, 1994 – Authorisation under Section 42 of the Major Port Trust Act, 1963 is not essential to attract levy of service tax under port service.



M/s Uttam Toyota Vs CCE, Ghaziabad (Dated: January 21, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Prima facie, the sale of parts and components during rendering services during warranty period cannot be treated as part of the services – In respect of demand relating to other services, demand arising out of credit on various services, the same are contentious and the submissions in respect of each of them have to be gone into in detail at the time of final hearing – Pre -deposit of Rs 40 Lakhs ordered.


M/s RNS Infrastructure Ltd Vs CCE, Belgaum (Dated: December 9, 2010)

Service Tax – Liability to pay service tax on construction of raw water pond in Thermal Power plant – Plea of assessee that activity undertaken is works contract raised for the first time before Tribunal and not raised before lower authorities earlier – Matter remanded to adjudicating authority without expressing any opinion on merits

Eligibility of abatement under Notification No. 1/2006-ST – CENVAT Credit availed on common inputs reversed and plea of applicability of provisions of Rule 6(3) of CENVAT Credit Rules, 2004 to be appreciated in detail with evidences on record – In absence of any findings of lower authority on this plea, matter remanded to adjudicating authority without expressing any opinion on merits

Demand of service tax for non-depositing of amounts with Government – Entire service tax paid with interest subsequently but before issue of SCN – Penalty under section 76 upheld and penalty under section 78 set aside


CCE, Meerut Vs Hindustan Coco Cola Beverages (P) Ltd (Dated: January 3, 2011)

Service tax paid as deemed service provider - Cenvat credit availed on TR-6 challans prior to 16.06.2005 before they were prescribed as valid documents under rule 9 of CCR, 2004 is permissible in view of Tribunal decisions in Gaurav Krishna Ispat (I) Ltd. vs. CCE, Raipur ( 2008-TIOL-1979-CESTAT-DEL ) Hira Steels Ltd. Vs. CCE, Raipur reported in 2009-TIOL-2153-CESTAT-DEL – Revenue appeal rejected


M/s Maruti Suzuki India Ltd Vs CST, Delhi (Dated: January 21, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Maruti True Value Outlets – Prima facie, the applicant has granted the licence to use its proprietary system and collecting the management fee from the dealers fixed at 25% of the profit earned in resale of pre -owned cars. Prima facie, the applicants are rendering the franchise services – Pre -deposit ordered.


CCE, Ludhiana Vs M/s Global Money (Dated: January 17, 2011)

Service Tax – Appeal – Condonation of delay in filing the appeal against the order of Commissioner (Appeals) - Initially the Committee of Commissioners had accepted the order, later decided to file appeal in view of non-acceptance of the Tribunal order by the department in a similar case – If delay is condoned, it may lead to reopening of many cases where the department has chosen not to file appeal – No sufficient cause to condone the delay – Appeal dismissed as barred by limitation.


M/s Semac Ltd Vs CST, Bangalore (Dated: November 15, 2010)

Service Tax – Consulting Engineer Service – Tribunal remanded matter to adjudicating authority only for limited issue of ascertaining as to whether main consultant already discharged service tax – Order of lower authorities travelled beyond scope of remand order, liable to be set aside


CCE, Hyderabad Vs M/s Vijay Leasing Company (Dated: December 9, 2010)

Service Tax – Activity of extraction of iron ore and related activities such as excavation, processing i.e. grading, sorting etc are mining services, not liable to pay tax prior to June 1, 2007 – Findings of Appellate Commissioner in impugned order for allowing refund claim of tax paid during prior period correct and legal and does not require any interference


CST, Bangalore Vs M/s Juniper Networks India Pvt Ltd (Dated: October 8, 2010)

Service Tax – Refund of accumulated credit availed on various input services – Findings of appellate commissioner that impugned services qualified to yield credit, prima facie requires no interference – Stay application of Revenue rejected


CCE, Tirunelveli Vs M/s Ganapathy Mills Co Ltd (Dated: December 31, 2010)

Service Tax – Demand of service tax set aside by the lower authority on the ground of limitation without going into the merits of the case – Since there is an allegation in the show cause notice about suppression, the demand cannot be held to be time barred as the first return has been filed after a long delay – Matter remanded for passing fresh orders on merits.


M/s Andhra Ferro Alloys Ltd Vs CCE, Visakhapatnam (Dated: January 3, 2011)

Service Tax – Delay of three days in filing refund claim under Notification 40/2007-ST – Authorities cannot condone delay in filing refund claim, that too a time limit envisaged in a Notification – Impugned order rejecting refund claim legal and proper


M/s Titan Industries Ltd Vs CCE, Bangalore (Dated: December 1, 2010)

Service Tax – CENVAT Credit - 'Rent-a-cab' service utilized for transportation of food articles from centralized canteen to current factory premises – Pre -deposit of Rs.

8000/- ordered and balance amounts waived


M/s Affiliated Computer Services Of India Private Limited Vs CST, Bangalore (Dated: December 22, 2010)

Service Tax – Condonation of delay in filing appeal – Receipt of order in one department not being communicated to another department in assessees office not a ground to condone delay of 42 days in filing appeal


M/s Kafila Forge Ltd Vs CCE, Rohtak (Dated: January 13, 2011)

Service Tax - Refund rejected on the sole ground that original copy of TR-6 challan not enclosed with the claim – now that the appellant is possession of the same, refund claim can be reconsidered after verifying its authenticity – Matter remanded.


CCE, Allahabad Vs M/s Kashi Vishwanath & Sons (Dated: January 20, 2011)

Notification 32/2004-ST – revenue denying the benefit on the ground that the GTA did not submit the required declaration of non-availment of benefit of Cenvat credit and notfn. 12/03-ST in the proper format – Commissioner(A) allowing benefit - matter no longer res-integra - Notification 32/2004-ST does not require consignment-wise declaration on consignment notes or prescribe any format for filing the declaration – Revenue appeal rejected.


M/s Aneri Constructions Vs CCE, Surat (Dated: August 26, 2010)

Appellant engaged primarily in construction of gas pipe lines and other related activities like repair, alteration, renovation and restoration of existing pipelines for various companies - Demand of service tax of Rs.1.20 crores confirmed without appreciation of submissions made by the appellant - Matter remanded without expressing opinion on any of the issues - CESTAT.


M/s Indravadan C Patel Vs CCE, Vadodara (Dated: February 22, 2011)

Appellant engaged in providing service of manpower supply - appellant defaulted in payment of service tax amounting to Rs.22.30 lakhs even though the amount of service tax had been collected from the customers – amount of Rs.20.37 lakhs paid during investigation – demand confirmed along with penalty and interest - Commissioner(A) order to make a pre -deposit of Rs.7.5 lakhs is not unreasonable as it covers approximately 25% towards penalty and full amount of service tax without taking into account the interest liability – appellant directed to pay the pre -deposit within six weeks and report compliance to Commr(A) who will decide case on merits: CESTAT


M/s Ad Vision Vs CST, Ahmedabad (Dated: November 10, 2010)

Merely because appellant did not make debit of the CENVAT Credit and did not make proper entries in the ST-3 return, confirmation of service tax demand is not justifiable – technical issues - even in the cases of clandestine removal in Central Excise matters, while confirming the demand, the benefit of CENVAT Credit, subject to verification of records that proper documents are available and raw input/capital goods have been received, the benefit of CENVAT Credit is allowed – Matter remanded to the original adjudicating authority for fresh consideration of issues.


CCE, Rajkot Vs M/s Bhawani Enterprises (Dated: February 1, 2011)

Service Tax – Penalty imposed under Section 76 of the Finance Act, 1994 reduced by the Commissioner (Appeals) under Section 80 – In view of the decision of the Gujarat High Court, that no discretion is vested in the authority to levy a penalty below the minimum prescribed limit, it is held that penalty imposed under Section 76 cannot be reduced by invoking the provisions of Section 80 of the Finance Act, 1994 – Penalty has to be either the quantum imposed under Section 76 or Nil if reasonable cause is shown – Penalty under Section 76 of the Finance Act, 1994 by original authority is restored.


CCE, Bhavnagar Vs M/s Gujarat Travels (Dated: February 18, 2011)

Service Tax - Respondents are operating tours in an Omni Bus - certificate given by the Regional Transport Officer, who is the proper authority to give decision on the said dispute, is clear that the vehicle being used by the respondents cannot be held to be tourist vehicle – Revenue has nowhere disputed the applicability of Madras HC

decision in Secretary, Federation of Bus Operators Association of Tamilnadu, Chennai [2003-TIOL-33-HC-MAD-ST] – Revenue appeal rejected.


R M Dhariwal Vs CCE, Pune (Dated: February 7, 2011)

SCN did not propose to demand service tax under the head “Scientific and Technical Consultancy Services” – confirming demand under the said category is not proper – Invoking provisions of the Provisional Collection of Taxes Act, 1931 even though Service Tax is not covered u/s 3 is illegal - Prima facie case in favour – Pre-deposit waived and stay ordered



M/s Shree Jawalaji Brothers Vs CST, Ahmedabad (Dated: February 14, 2010)

Service Tax – Stock Broker Service – The appellants are acting as sub-brokers and part of the brokerage received by the main broker is diverted to the appellants – Appellants contend that the main broker paid the service tax on the entire amount - Since there is no discussion on the contention of the appellant, matter remanded.


M/s Sri Bhagavathy Traders Vs CCE, Cochin (Dated: January 18, 2011)

Service Tax – C&F Agents – Whether reimbursement charges are includible in the taxable value – Matter referred to Larger Bench: Tribunal found that different benches are taking different views on includibility or otherwise of the reimbursement charges received by a provider of taxable service in the calculation of gross amount for discharge of service tax. Since there are two views taken by the coordinate benches, Tribunal referred the matter to the President to constitute a larger bench and settle the issue of "includibility or otherwise of the reimbursement charges.



M/s Lakshmi Vilas Bank Ltd Karur Vs CCE, Trichy (Dated: August 28, 2010)

Service Tax – CENVAT Credit on input services utilized in connection with construction of staff quarters – In view of two differing decisions of the Coordinate benches on the same issue, matter referred to the President for considering reference to Division Bench.


Heritage Resorts Pvt Ltd Vs CCE, Jaipur (Dated: December 6, 2010)

Adjudication order does not disclose determination of the liability under 3 different categories that is rent-a-cab, health club, and fitness centre and tour operator services –it merely reflects that there was a global assessment under three categories of services - Adjudication made in a sketchy manner does not provide any scope to understand head or tail of the same - Appellate Authority also mechanically confirmed the adjudication order without looking into the scope and ambit of the law – matter remanded to adjudicating authority.


M/s Bhiwadi Cylinders Ltd Vs CCE, Jaipur (Dated: January 25, 2011)

ST paid on activity of repairs and maintenance of gas cylinders – Commissioner(A) holding that appellant need not pay service tax - Appellant filing refund claim on 26.06.2006 and the same was returned for rectification of certain errors – claim resubmitted on 18.08.2006 – claim deemed to have been filed on 26.06.06 not time barred – whether claim hit by unjust enrichment – appellant to be given another opportunity to prove that tax burden not passed on to customers – Matter remanded.


M/s Dixit Security & Investigation Pvt Ltd Vs CST, Ahmedabad (Dated: February 4, 2011)

Value of service shown in ST-3 returns was less than that shown in P&L Account - appellant on their own calculated differential Service Tax, got it verified by Chartered Accountant and submitted the same to the department - fit case for invoking provisions of Section 80 of Finance Act, 1994, which provides that if a reasonable cause is shown, penalties under sections 77 & 78 of Finance Act, 1994 can be waived – Decision in Bangalore Vihara Kendra 2010-TIOL-663-CESTAT -BANG relied upon – Appeal allowed.


CCE, Ghaziabad Vs M/s Indus Tube Ltd (Dated: January 21, 2011)

Appellant paying service tax under the category of GTA on 100% of the gross amount – later refund claim filed on the ground that the benefit of notification 32/2004-ST which allows abatement of 75% was inadvertently not claimed – declarations regarding non-availment of CENVAT credit by transporter was not given on individual invoices but a declaration was filed at a later date later date – no challenge to this claim by Revenue – so long as the appellants fulfill the conditions of the exemption notification, they should be given the benefit even when they opt for the same at a later date - Refund admissible – Revenue appeal rejected.


M/s Top Land Exports Vs CCE, Rajkot (Dated: February 4, 2011)

Service Tax – Denial of refund claim on the ground that the Lorry Receipts did not contain the details of invoice numbers and shipping bill numbers of goods exported – If the procedural omission can be rectified subsequently, refund is to be allowed – Matter remanded to the original authority.


M/s Amity Thermosets Pvt Ltd Vs CCE, Vapi (Dated: December 31, 2010)

Substantive right cannot be denied on the ground that covering letter of the refund claim is wrong – refund claim filed in wrong format - forms are meant to facilitate and not to act as hindrance - rectifiable error – appeal allowed and matter remanded.


Bharat Sanchar Nigam Ltd Vs CCE, Vadodara (Dated: January 27, 2011)

Service Tax – Short payment of service tax by BSNL due to difference between Cash Account Summary and the Sub-ledger revenue – Appellants claim that in some months, there were excess payments and in some months, there were short payments – Matter remanded to adjust the excess payments against the short payment and quantify the service tax payable - Penalty set aside.


M/s Alstom Projects India Ltd Vs CST, Delhi (Dated: March 14, 2011)

Service Tax - Services covered under works contract service taxable even prior to 1.6.2007: There is nothing in Sec 65(105) and Section 66 of the Finance Act, 1994 from which it can be inferred that the taxable services defined in various clauses of Section 65(105) have to be standalone services and will not attract tax, if they are

provided along with other services or providing of the service involves supply/use of goods on which VAT or Sales Tax is payable.; Section 65(105) ( ZZZZa ) is more like heading 98.01 of India Customs Tariff pertaining to Project Imports which provides a separate mode of assessment of Customs duty on a number of machines and other goods imported for initial setting up of a plant or a substantial expansion of an existing plant. As regards the judgment of Hon'ble Karnataka High Court in case of Turbotech precisions Engineering P. Ltd since this judgment does not discuss as to how prior to 1.6.07, the type of contracts mentioned in Explanation to Section 65(105) ( ZZZZa ) were not taxable under Section 65 (105) ( ZZd ), 65 (105) ( ZZq ) or 65 (105) ( ZZZh ), the same is not a binding precedent.

Penalty under both section 76 and 78 imposable: Since, there was suppression of relevant information with intent to evade the service tax and there is no valid reason for not paying the service tax payable by the due date, penalty has been rightly imposed under Section 76 and 78 of the Finance Act, 1994. Their plea that they stopped the payment of service tax in view of Tribunal's judgement in case of Daelim Industrial Co. Ltd., Vs. CCE , Vadodara is unacceptable as the contract of the appellant led consortium with DMRC is a divisible contract of sale and service and by no stretch of imagination, the same could be called an indivisible contract. Besides this, there is no reason for non payment of service tax on the amount received for the contract T&C DMRC 02CV dated 20.11.01 with M/s Mitsubishi Corporation Limited for supervision of erection of audio frequency tracking system, which was a pure service contract of 'Consulting Engineer's Service". In view of this, the penalty imposed on the appellant under Section 76 & 78 are upheld.



CCE, Kanpur Vs M/s Lasalle Marketing Ltd (Dated: January 13, 2011)

Appellate authority has gone through the entire gamut of the marketing agreement between the suppliers of the goods and the Respondent - agreement describes the understanding and arrangement of the parties to occasion sale of the goods to M/s KCK International Pvt. Ltd. on certain terms of the contracts - Majority of the terms of contract speak that the appellant was marketing agent and such terms were dominating in nature – such services are correctly held as “Business Auxiliary Services” and not “Clearing and forwarding service” – Revenue appeal rejected.


M/s Everest Construction Co Vs CCE, Chandigarh (Dated: November 23, 2010)

Bench passing ex-parte order of pre-deposit as appellant failed to appear on the scheduled date of hearing – on the day of seeking compliance, appellant could not give any satisfactory reason for their non-appearance but seeking more time to comply with order of pre -deposit – Revenue not having any objection – further period granted for making pre-deposit: CESTAT


M/s Kirloskar Pneumatics Co Ltd Vs CCE, Pune (Dated: March 14, 2011)

Service Tax on reimbursable expenses - Prima facie, under sec. 67 of FA, 1994, a service -provider has to pay service tax on the gross amount collected by him from his customer in connection with the rendering of the service - expenses were not returned in the service tax returns for the purpose of payment of tax – Prima facie , charges of suppression proved – Pre-deposit ordered: CESTAT



Gujarat State Petroleum Corpn Ltd Vs M/s Atwood Oceanics Pacific Ltd (Dated: January 25, 2011)

Gujarat State Petroleum Corpn. Ltd seeking to implead itself as an intervener in the appeals filed by the Revenue as well as M/s Atwood Oceanic Pacific Ltd - contract between GSPC and the appellant M/s Atwood Oceanic Pacific Ltd cannot be a ground for inte rvention – no locus standii – application rejected in view of SC decision in UPSRTC 2011-TIOL-11-SC-ST .


Kodumal T Dhanrajani Vs CCE, Nagpur (Dated: December 14, 2010)

Appellant getting residential houses built by the contractor who collected Service Tax from them and deposited it with the exchequer under protest – refund claim filed by appellant should satisfy the requirements of s.11B of the CEA, 1944 – orders passed by lower authorities lacking in clarity - Matter remanded: CESTAT



CCE, Meerut Vs M/s Jitendra Singh Taneja (Dated: October 19, 2010)

Since there is no proposal for imposition of penalty u/s 78 of the Finance Act, 1994 in the show cause notice, the lower appellate authority has rightly held that the adjudicating authority has gone beyond the show cause notice while imposing penalty u/s 78 - Revenue appeal rejected.


Nitya Engineers & Constructors Vs CCE, Noida (Dated: November 8, 2010)

Service Tax demand of Rs.1.32 Crores along with equal penalty and interest - appellants conduct of withholding records from department brought out by Revenue representative - to protect the interest of revenue pre -deposit ordered of Rs.50 lakhs - considering financial hardship, amount to be paid in ten equated monthly installments -failure to comply will render the order vacated and revenue can go for full realization of demand in accordance with law :CESTAT


CST, Delhi Vs M/s ABN Amro Bank (Dated: January 28, 2011)

Service Tax – Business Auxiliary Service – Mobilising, selling, recommending mutual fund units of various mutual fund houses – The respondents are not liable to pay service tax on such activities in view of the judgement of High Court of Andhra Pradesh against which there is no stay.


CCE, Ludhiana Vs M/s The Designer (Dated: December 24, 2010)

There is no dispute that the service providers from whom the Respondent had received the taxable services are not the persons having office or establishment in India - enabling provisions of Section 66 A of the Act, 1994 for charging of service tax from the service recipient in India was introduced w.e.f. 18.04.2006 – service tax liability cannot be fastened on service recipient in India during the period of dispute 9.7.04 to 31.3.2006 - Bombay High Court decision in Indian National Shipowners Association ( 2008-TIOL-633-HC-MUM-ST ) as upheld by Supreme Court relied upon – no infirmity in order of lower authority – Revenue appeal dismissed.


M/s Environment Planning Collaborative Vs CST, Ahmedabad (Dated: November 19, 2010)

Appellant providing scientific and technical consultancy service to UNDP and claiming exemption under notfn. 48/98-ST – these facts informed to the department in ST -3 returns filed - very fact that appellant regularly intimated the department for the two periods of ST -3 return prior to the period in dispute supports the claim of the appellant that they had a bonafide belief that they were eligible for exemption - Once the appellant intimated the fact to the department, the suppression of fact or mis-declaration cannot be alleged – Prima facie case – Stay granted.


M/s ITW India Ltd Vs CCE, Vapi (Dated: February 21, 2011)

Service tax in case of Financial Leasing Services is leviable only on Lease Management fee/Processing Fee and documentation charges and on the finance/ interest charges and not on the principal amount - Inasmuch as the service tax stands confirmed on the entire principal amount order set aside and matter remanded to original adjudicating authority for quantifying the service tax in terms circular B.11/1/2001-TRU dated 09.7.2001 of the Board - quantum of penalty should also be re -adjudicated – Appeal disposed of.


M/s Essar Projects (India) Ltd Vs CCE, Ahmedabad (Dated: February 24, 2011)

Service Tax - Laying pipelines for Gujarat Water Resources Development Corporation ; not taxable; However the appellant paid tax and took CENVAT Credit - No penalty for wrong credit: In any case, it is seen that the issue of non taxability of laying down of water pipelines was raised for the first time by the appellant's jurisdictional superintendent under the cover of his letter dated 16.01.2006, as a result of audit objection. The objection raised by the audit were duly replied by the appellants by their letter dated 13.03.2007 and thereafter the said objection was dropped, as is seen from the final audit report No. 25/2006-07. As such, when the appellants were admittedly paying the service tax on the services and filing returns, and when the audits were taking place during the relevant period, raising objections and subsequently dropping the same, can any suppression or mis -statement and can be attributed to the appellants with malafide intention, so as to invoke the longer period of limitation. Further, the fact that Revenue itself was raising show cause notice against the other similarly situate assessees , demanding service tax on the same activity and when the Board was issuing circular in 2009 referring to the doubts and clarifying the issues, can it be said that the appellant paid service tax on the said activities with a malafide intention to avail more cenvat credit than the duty required to be paid by them. The answer to all these questions would be obviously, NO. There is no evidence in the impugned order referring to any mis -statement or suppression of facts on the part of the appellant with intent to evade payment of duty. As there was no malafide on the part of the appellants, the imposition of penalty is not justified and the same is accordingly, set aside.



CCE, Ludhiana Vs M/s Gill Godown (Dated: December 24, 2010)

For the period w.e.f. 1.10.2007 department treating the services provided by the respondent as the services of renting of immovable property and not as storage and warehousing services - services provided by the respondent during the period of dispute viz. 16.8.02 to 31.12.05 cannot be classified as services of storage and warehousing services, more so, when there is a rent agreement on record – no justification for imposition of penalty u/s 76, 78 of FA, 1994 – Revenue appeal

dismissed.


M/s Aadishwar Motors Pvt Ltd Vs CST, Ahmedabad (Dated: February 21, 2011)

Appellant giving space at their authorized service station to various financial institutions – CBEC vide Circular 6.11.2006 clarifying that such service would be covered under Business Auxiliary Service – Mere non-approaching the department or non seeking of clarification, by itself cannot be made a ground for invocation of longer period of limitation, unless the same is associated with a willful intent to evade payment of duty – Period involved is July 2003 to December 2005 is barred by limitation – decision in Maheshwari Bajaj (2010-TIOL-1027-CESTAT-AHM) relied upon - Appeal allowed with consequential relief.


M/s Suzuki Motorcycle (I) Pvt Ltd Vs CCE, Delhi (Dated: February 25, 2011)

Service Tax - The service availed by the appellant for construction of the factory buildings and office buildings of the factory are, covered by the definition of 'input service' - Prima facie case in favour of the appellant - pre -deposit waived: from the definition of 'input service', it is clear that the services used in or in relation to the setting up, modernization, renovation or repairs of a factory or premises of output service provider or an office relating to such factory or premises, are covered by the definition of 'input service'. The service availed by the appellant for construction of the factory buildings and office buildings of the factory are, therefore, covered by the definition of 'input service'.



M/s Vertex Securities Limited Vs CCE & ST, Cochin (Dated: December 6, 2010)

Service Tax – Collection of transaction charges for providing stock broking service – Claim of appellants that the amounts collected were same as that paid to stock exchanges and no finding by lower authority that amounts were collected in excess – Prima facie case for full waiver of pre-deposit


M/s Sheladia Rites Vs Addl.CCE, Visakhapatnam (Dated: December 6, 2010)

Service Tax – Liability to pay service tax on TDS amount deducted at source by client – Prima facie case for full waiver of pre -deposit – Stay granted


M/s Urmila Kothari Vs CCE, Mangalore (Dated: December 3, 2010)

Service Tax – Activity of making available loaders with operator for loading of goods at port and godowns belonging to clients, whether ‘cargo handling service' or ‘supply of tangible goods service' – Amount of Rs. 4.74 lakhs paid towards service tax with interest of Rs. 99,363 suffices as pre-deposit – Balance amounts waived


M/s JMC Educational Trust Vs CCE, Trichy (Dated: December 6, 2010)

Service Tax – Commercial coaching or training service – Appellant's institution is like a parallel college and the students are obtaining degrees from Alagappa University through Distance Education Programme – Demand of service tax set aside as the training and coaching provided by the appellants is for an essential part of a course or curriculum of a university.

2011-TIOL-409-CESTAT-MAD

M/s Lloyd Insulations (I) Ltd Vs CCE, Chennai (Dated: December 6, 2010)

Service Tax – Stay/Dispensation of pre-deposit – Under Notification 12/2003 ST only the value of goods and materials sold can be excluded, but not fabrication charges and transport charges - No prima facie case has been made out for waiver of pre -deposit.


M/s Ericsson India Pvt Ltd Vs CC, CE & ST, Hyderabad (Dated: December 9, 2010)

Service Tax – Appellant entered into contract for supply and installation of BTS, Microcell and other Microwave equipments for telecommunication network – Invoice for goods raised from corporate office and invoice for service raised by branch office (appellant) engaged in providing service – Corporate office distributed credit on input services exclusively received in relation to procurement of goods required for provision of service under supply and installation contract – Credit denied on the

ground that sale of telecom equipment is trading activity – Eligibility or otherwise of service tax credit distributed by ISD to be examined by jurisdictional service tax authorities of ISD only and not by authorities having jurisdiction over the recipient of such credit – For interpreting Rule 6 (3) (c) of CCR, 2004 exempted services as mentioned in Clause 2(e) of CCR would cover only services which are notified and not those services on which no service tax is leviable under section 66 of Finance Act, 1994 – Prima facie case for full waiver of pre -deposit – Stay granted


M/s Anglo French Drugs & Industries Ltd Vs CCE, Bangalore (Dated: November 26, 2010)

Central Excise – No bar on ISD to distribute CENVAT credit to only one unit – Distribution of service tax credit availed on services received in trading centre to be decided at the time of final disposal of appeal – Prima facie case for full waiver of pre -deposit – Stay granted


Ahmednagar Forgings Ltd Vs CCE, Pune (Dated: February 28, 2011)

Service Tax paid on Banking and Other Financial Services being advisory and placement charges in connection with private placement of preferential equity shares is an activity related to business and is an Input Service – Prima facie case – Stay ordered



M/s Pacific Exports Vs CCE, Ahmedabad (Dated: February 4, 2011)

Service Tax – Refund of Service tax under Notification No 41/2007 ST on the services used in respect of goods exported – Refund denied on the services like terminal handling charges, documentation fee, courier services, CHA services rejected on the ground that the classification of the services was wrong - It is a settled law that re-classification of the services cannot be done at the recipient's end – Matter remanded to re-examine the claim of the appellants.


M/s Fiamm Minda Automotive Ltd Vs CCE, Delhi(Dated: January 07, 2011)

Service Tax – Tax paid on mediclaim insurance and group insurance policy taken for employees/staffs not deniable as CENVAT credit – When goods are exported on FOB basis and ownership retailed till delivery of goods on board the vessel, credit not deniable on CHA services – Rent-a-cab service utilized for transport of vendors and clients from guest house to factory and vice versa, credit of service tax paid not deniable – Insuring export of goods relates to business activity, tax paid on insurance of export goods not deniable


CST, Bangalore Vs M/s Mahavir Coconut Industries (Dated: November 8, 2010)

Appeals – ROM Applications – Finding of Tribunal in its final order that Revenue had not challenged earlier orders of Commissioner (Appeals) and therefore attained finality, erroneous – Error apparent on face of record, ROM applications allowed and final orders recalled


M/s Federal Mogul Goetze India Ltd Vs CCE, Bangalore (Dated: December 6, 2010)

Service Tax – Eligibility of CENVAT credit on inputs, input services utilized in job work activity – Adjudicating authority having appropriated Rs. 2.02 crores paid as excise duty/service tax, pre -deposit of Rs. 10 lakhs ordered


M/s Koramangla Club Vs CST, Bangalore (Dated: December 20, 2010)

Service Tax – Club or Association Service – Whether amounts received from non-members for giving guest room accommodation and amounts received for cultural programmes organized including sports activities liable for service tax under ‘club or association service' – Amount of Rs. 31 lakhs paid suffices as pre-deposit, balance amounts waived


M/s Shakti Treads Vs CST, Bangalore (Dated: December 20, 2010)

Service Tax – Eligibility of benefit of exemption notification 12/2003-ST for materials consumed in retreading of old tyres – Pre -deposit fully waived and stay granted


Ms Mohan Enterprises Vs CCE, Visakhapatnam (Dated: November 29, 2010)

Service Tax – Letting out vacant land not covered under ‘Renting of Immovable Property Service' – Operation and maintenance of mud plant not covered under 'Maintenance & Repair Service' – Prima facie case for full waiver of pre-deposit


M/s Kaveri Agri Care Pvt Ltd Vs CST, Mysore (Dated: November 26, 2010)

Service Tax – Consideration received for providing corporate guarantee to bank for availment of loans by another entity – Corporate guarantee appropriately classifiable under Banking and Other Financial Service and not Business Support Service – Tax demand confirmed by invoking incorrect provision of law, prima facie case for full waiver of pre -deposit – Stay granted


M/s Koya & Company Construction Pvt Ltd Vs CCE, Visakhapatnam (Dated: December 6, 2010)

Service Tax – Supply of PSC/MS pipes to water supply projects, lift irrigation schemes without payment of excise duty availing benefit of Notification No. 3/2004-ST – Absence of desalination, demineralization plant or plant for purification of water will not render pipes supplied ineligible for benefit of exemption – Prima facie case for full waiver of pre -deposit


M/s Lanco Infratech Limited Vs CC, CCE & ST, Hyderabad (Dated: November 29, 2010)

Service Tax – Works Contract Service – Benefit of composition scheme not available for on-going contracts where service tax was paid under the existing three heads of taxable services prior to 01.06.2007 – Benefit of abatement under Notification No. 1/2006-ST available – Pre -deposit of Rs. 2.66 crores ordered and stay granted



CCE, Ludhiana Vs M/s Deluxe Enterprises (Dated: November 25, 2010)

Service Tax – Demand of Service tax on the unaccounted income declared during survey by the Income Tax officers – It is seen that apart from selling the SIM Cards, the respondents also sell the mobile phones – No inquiry has been made with the respondents and no statement in this regard asking them about the source of the income declared to the income tax authorities has been recorded - Evidence gathered by the Department is not sufficient to establish even the preponderance of probability – No infirmity in the order of Commissioner (Appeals).


M/s Swastik Pipes Ltd Vs CCE, Rohtak (Dated: November 25, 2010)

Service Tax – Penalty under Section 76 and 78 – Service tax on Goods Transport Agency paid through CENVAT Credit - When there were contrary decisions on this issue, there is substance in the appellant's plea that there was no malafide in payment of service tax through CENVAT credit and there is no justification for imposition of penalty under Section 76, 77 and 78 of the Finance Act.


M/s IVRCL Infrastructures & Projects Ltd Vs CST, Hyderabad (Dated: December 20, 2010)

Service Tax – Laying of pipelines for water supply project of GWSSB - Water supply project is an infrastructure facility and a civic amenity provided by State to its public and not an activity of industry – Prima facie case for full waiver of pre-deposit


Noble Grain India Pvt Ltd Vs CCE, Nagpur (Dated: December 30, 2010)

Assessee exporting goods through merchant exporter under an agreement that service tax of services engaged by exporter would be borne by manufacturer – Refund claim filed u/notfn 41/2007-ST by manufacturer - No other person can claim the refund of the service tax paid on the services availed by the exporter for exporting the goods – Restricted view to be taken



M/s Jain Marketing Vs CST, Chennai (Dated: November 15, 2010)

Service Tax – Business Auxiliary Service - Exemption under Notification No 14/2004 ST dated 10.9.2004 – Since the appellant is an individual, he is covered under the first part of the Notification and there is no requirement to establish that the services were rendered in relation to textile processing as stipulated under proviso to the Notification which is applicable only for the seven categories of the service providers specified.


CCE, Chennai Vs M/s BBK Leather Pvt Ltd (Dated: December 06, 2010)

Service Tax – Liability to pay service tax on commission paid to Foreign Service provider arises only with effect from 18.4.2006.


M/s Aditya Birla Nuvo Ltd Vs CCE, Vadodara (Dated: December 16, 2010)

Service Tax – Business Auxiliary Service – Exemption under Notification 13/2003 ST for Commission Agents – The appellants are not mere commission agents and as per the agreement, the services re quired to be provided by the appellant necessarily relate to promotion or marketing or sale of the goods manufactured by the client – Exemption is not admissible.

Limitation - Merely because the appellant did not approach the Revenue for clarification and did not disclose the activities undertaken by them, by itself cannot be made a reason for alleging any suppression or mis -statement to them - As soon as the notification was deleted, the appellants themselves approached the Revenue for registration – Demand beyond one year is barred by limitation.

Penalty – Since the appellants were under a bonafide belief, imposition of any penalties in terms of the provisions of Section 75, 76, 77 and 78 would not be justified, in the light of the provisions of Section 80 of the Finance Act.


M/s L&T Komatsu Ltd Vs CCE, Bangalore (Dated: December 20, 2010)

Service Tax – Eligibility of CENVAT credit of service tax paid on sales promotion service availed for promotion of goods manufactured by appellant – Sales promotion specifically covered in definition of ‘input service' – Full waiver of pre -deposit of Rs. 61.44 crores ordered and stay gra nted



M/s Karnataka Rural Infrastructure Development Ltd Vs CST, Bangalore (Dated: December 06, 2010)

Service Tax – Activity of construction of buildings, roads and other civil works for State Government and execution of contracts with local bodies/State Government agencies for maintenance of roads, construction of drainage, upgradation of sidewalks, asphalting of roads – Matter remanded to adjudicating authority to decide the issue afresh in terms of CBEC Circular No.110/4/2009-ST dtd. 23/2/2009 – Impugned orders set aside


M/s Sharma Transports, Bangalore Vs CST, Bangalore (Dated: October 25, 2010)

Service Tax – Transport of passengers from point to point whether ‘Tour Operator service' – Scope of Service tax on tour operators and contract carriages under examination of CBEC – Instructions issued to authorities to keep adjudication matters in abeyance – Pre-deposit waived and stay granted


M/s Praveen Electrical Works Vs CCE, Belgaum (Dated: December 20, 2010)

Service Tax – Erection & commissioning service – All taxable services rendered in relation to transmission and distribution of electricity covered by Section 11C notification No. 45/2010-ST dated 20.07.2010 – Prima facie case for full waiver of pre -deposit in relation to erection & commissioning service – Amount of Rs. 45,000/- already paid in relation to demand of service tax on rent-a-cab service – Sufficient to waiver further pre -deposit of service tax in relation to demand of tax under this head



CCE, Rajkot Vs M/s S J Mehta & Company (Dated: February 01, 2011)

Service Tax – Penalty under Section 76 reduced under Section 80 - In view of the fact that the HC has laid down the law that under Section 80 of Finance Act, 1994, penalty can be either waived or imposed as per law but there is no provision to reduce it, the

appeal filed by the Revenue has to succeed - Penalties imposed by original adjudicating authority are restored.


CCE, Tirunelveli Vs M/s Sterlite Industries (I) Ltd (Dated: December 1, 2010)

Service Tax – Liability to pay interest under Section 75 of the Finance Act, 1994 – The assessee paid service tax by way of debit in CENVAT account by the due date and later made good the error by making payment in cash – No error in the order of the Commissioner (Appeals) that interest under Section 75 is not attracted.


M/s Arvind Limited Vs CCE, Ahmedabad (Dated: February 04, 2011)

Service Tax – Refund of service tax under Notification No 41/2007 ST – Amendments made vide Notification No 33/2008 ST cannot be given retrospective effect - It is settled law that exemption notifications have to be interpreted strictly and they have only prospective effect and retrospective effect cannot be given unless specifically provided for - When exemption has to be claimed by way of refund, it is the date of export that becomes relevant and not the date of filing the refund claim.



M/s Country Club (India) Ltd Vs CC, CE & ST, Hyderabad (Dated: October 7, 2010)

Service Tax – Offer of club membership with land and charging membership fee inclusive of cost of land – Service tax not payable on cost of land – Matter remanded to original authority to record a finding with regard to transfer of amount to sister concern for allotment of land to individual members – Impugned orders set aside


M/s Stone & Webster International Inc Vs CCE, Vadodara (Dated: February 04, 2011)

Service Tax - The consumption of service in India is not taxable event. Situs of the tax would be where the taxable event occurs and not where the effect or the consequence thereof is felt.: The taxable event has not occurred in India, inasmuch as the activity of development of technology, technical information & know-how, transfer of design, drawing etc has taken place in USA. The consumption of such services in India, when

admittedly no such service stands provided by the appellant in India, cannot be held to be a taxable event.

Service Tax - Limitation : extended period of 5 years is available to the Revenue only when the service tax stand not paid or less paid on account of mala fide on the part of the assessee. It stands held by various decisions of the Tribunal that mis -statement or suppression or contravention of any provisions, has to be with intent to evade payment of duty. Reference in this regard can be made to the Hon'ble Supreme Court's decision in case of M/s Padmini Products Vs. CCE as reported in (2002-TIOL-289-SC-CX) , wherein it was held that bona fide lack on the part of the assessee to get licences and to pay duty, cannot be made the reason for invoking extended period, in the absence of any positive evidence to show mis -statement or suppression of facts with intent to evade payment of duty. Any bona fide lapse not to make enquiries about its obligation to pay duty/tax, cannot be made reason for invocation of extended period unless there is evidence to show that such lapse was on account of mala fide intention, and with guilty mind of avoiding payment of tax.



M/s Kerala State Financial Enterprises Ltd Vs CCE, Calicut (Dated: October 27, 2010)

Service Tax – Contractual arrangement between principal located outside India and agent in India for disbursement of monies to residents in India from their relatives located outside India – Appellant, a sub-agent undertaking money transfer service receives part of commission paid by principal to agent as compensation – Service rendered by appellant benefiting principal abroad and its beneficiaries who are also located outside India – When all relevant activities take place in India, so long as benefits of such services accrue outside India, it is to be regarded as export of service – Further, it is undisputed that money transfer service is not a taxable service – Impugned order liable to be set aside


M/s Toyota Kirloskar Auto Parts Pvt Ltd Vs CCE, Bangalore (Dated: October 25, 2010)

Service Tax – Service tax liability on travelling and conveyance expenses of foreign personnel rendering technical assistance and training to appellant's personnel in India – Service tax already paid on technical fees charged by foreign service provider – Actual consideration to be value of taxable services provided from outside India in terms of Rule 7 of Service Tax (Determination of Value) Rules, 2006 read with Section 66A – Full waiver of pre -deposit ordered and stay granted


M/s Thames Water Asia (P) Ltd Vs CCE, Bangalore (Dated: November 8, 2010)

Service Tax – Consulting Engineer's Service – Pre-deposit of Rs. 14 lakhs ordered by Tribunal in an earlier case in a similar matter, still lying with department – Sufficient for grant of full waiver of pre-deposit and stay


M/s Mphasis Ltd Vs CCE, Bangalore (Dated: November 10, 2010)

Service Tax – Application for condonation of delay in filing appeal – Employees handling tax matters resigned during intervening period when order-in-original was served on appellant – Appellant would not gain anything by not filing appeal within period of limitation – Delay of 53 days condoned


M/s HDFC Bank Ltd Vs CCE, Thane (Dated: February 07, 2011)

HDFC Bank Ltd. directed to pre -deposit Rs.74 lakhs in Service Tax case by CESTAT, WZB - recoveries made from credit card holders in respect of transactions done abroad prima facie covered by “credit card services” falling under clause (ii) of “Banking and other Financial Services” under section 65(12) of the Act.



IVRCL Infrastructure & Projects Ltd Vs CCE, Hyderabad (Dated: November 8, 2010)

Service Tax – Laying of pipelines for distribution of drinking water – Prima facie not leviable to service tax – Full waiver of pre-deposit and stay granted


M/s J K & Company Vs CST, Delhi (Dated: January 21, 2011)

Service Tax – Stay/dispensation of pre -deposit - Execution of erection, installation and commissioning of power lines from one point to another point – Prima facie service tax is leviable only from 16.6.2005 – Appellant has made out prima facie case for waiver of pre-deposit.


Manikgarh Cement Vs CCE, Nagpur (Dated: December 2, 2010)

Whether the impugned service is taxable or not is to be decided at the end of service provider and not at the end of service receiver - In that event, if any service availed by the appellant against service tax paid invoices, the appellant is entitled to take input service credit - CESTAT decision in CCE Chennai vs. Caborandum Universal Ltd. (2008-TIOL-636-CESTAT-MAD) relied upon.


Nagappa Motors Vs CCE, Madurai (Dated: November 25, 2010)

Service Tax – Authorised Service Station – Section 11 D – Service tax collected from the buyers was credited into the Government account – 50% of the tax was reimbursed by the Hero Honda Ltd – Provisions of Section 11 D are not attracted to the amount reimbursed by Hero Honda.


M/s Dhillon Kool Drinks & Beverages Ltd Vs CCE, Jalandhar (Dated: December 10, 2010)

Service Tax – CENVAT Credit – The appellants are eligible to pay service tax on GTA from CENVAT Credit – Question of law answered in favour of the appellants by the High Court.


M/s ITC Ltd Vs CCE, Salem (Dated: November 3, 2010)

Service Tax – Refund of service tax paid on input services used for export of finished goods under Notification No 41/2007 ST – Refund denied on the ground that there is no correlation between the exported goods and the input services used – Matter remanded to give one more opportunity to substantiate the claim with necessary documents.


Shri Govindaswamy Balraj Vs CCE, Mangalore (Dated: October 28, 2010)

Service Tax – Activity of improvement/re -asphalting of existing roads for NHAI, PWD etc and construction of residential buildings / staff quarters at Port Trust colony – Claim of appellant that activity of improvement/re -asphalting of roads is ‘works contract' and construction activity being covered by Board's letter dated May 24, 2010 not raised before adjudicating authority – Matter remanded for de novo consideration by original authority


M/s Praxair India Pvt Ltd Vs CCE, Bangalore (Dated: November 29, 2010)

Service Tax – Banking & Other Financial Services – Manufacture of special purpose equipment (cryogenic tanks) and leasing thereof to purchasers – Agreement between appellant and clients for purchase of equipments given on lease at the end of tenure – Prima facie no case for full waiver of pre-deposit – Pre -deposit of Rs. 10 lakhs ordered


M/s KNR Contractors Vs CCE, Tirupati (Dated: October 21, 2010)

Service Tax – Original authority refrained from imposing penalty in terms of s. 80 solely on the ground that department failed to substantiate allegations of willful suppression or intentional evasion - Revisionary authority imposing penalties without examining applicability of s. 80 not sustainable – Matter remanded to original authority to examine applicability of s. 80


CCE, Jaipur Vs M/s Pushp Enterprises (Dated: November 23, 2010)

Service Tax – Limitation – CENVAT Credit availed on input services used in the trading unit - Mere failure or negligence on the part of the manufacturer either to take out a licence or to pay duty in case where there was scope for doubt, does not attract the extended limitation period, unless there is evidence that the manufacturer knew that goods were liable to duty or he was required to take out a licence as held by the Supreme Court – The appellants have shown the credit taken in the ER -1 returns - When the quantum of service tax credit availed had been disclosed, the office rs were always free to inquire from the respondent about details of the same and satisfy themselves about its correctness – No infirmity in the order of Commissioner (Appeals) setting aside the demand on the ground of time bar.


M/s Soundaraja Mills Ltd Vs CCE, Madurai (Dated: November 2, 2010)

Service Tax – Penalty – Appellants have paid the entire tax demand as well as interest thereon – Since the appellants have not challenged the applicability of longer period of limitation, penalty under Section 78 is upheld – However matter remanded to the original authority to consider the pra yer for extending the benefit of reduced penalty to 25% of the tax.


CCE, Meerut Vs M/s Sandeep Electrodes (P) Ltd (Dated: December 18, 2010)

Service Tax – Penalty – Service Tax liability on Goods Transport Agency Service discharged by utilising CENVAT credit – No malafide intention can be inferred on the part of the respondent – Revenue appeals against the order of Commissioner (Appeals) setting aside penalty have no merit.


M/s Venus Investments Vs CCE, Vadodara (Dated: January 7, 2011)

Service Tax – Stay/Dispensation of pre-deposit - CENVAT Credit on construction service used for payment of service tax – Issue involved is a question of interpretation and requires detailed consideration of relevant rules and case laws – Considering the amount already deposited by the applicant, stay granted.


Sneha Minerals Vs CCE, Belgaum (Dated: July 23, 2010)

Service Tax – Mining of ore under a contract during June 2005 to December 2005 – Order-in-original appropriated service tax voluntarily paid with interest and refrained from imposition of penalties by exercising discretionary powers – Revisionary order of Commissioner proposed imposition of penalties under sections 76, 77 & 78 – Since mining service was not taxable during the period of dispute which is prior to 01.06.2007, Commissioner ought not to have issued revisionary show cause notice proposing to modify penal liabilities – Section 84 does not empower Commissioner as revisionary authority to revise such exercise of discretion by the original authority – Imposition of penalties in revisionary proceedings set aside


M/s Vippy Industries Ltd Vs CCE, Indore (Dated: January 18, 2011)

Service Tax – Refund under Notification No 41/2007 ST – Refund disallowed by the Commissioner (Appeals) in respect of testing and analysis service on the ground that

no agreement between the exporter and buyer as required under the Notification was produced – Matter remanded to the original authority to examine the terms and conditions of the agreement produced by the appellants.


M/s Sai Shipping Services Vs CCE, Jaipur (Dated: January 18, 2011)

Service Tax – Custom House Agent's Service – Exclusion of reimbursable expenses – Appellants are not in a position to produce documentary evidence for actual expenses – Alternate plea to extend the benefit of CBEC Circular to collect service tax on 15% of the gross amount charged is acceptable – Tax payable has to be calculated as per the Board Circular – Penalties under Section 76 and 78 set aside.


M/s Rajratan Global Wires Ltd Vs CCE & CC, Indore (Dated: October 29, 2010)

Law as that was existing during the year 2003-04 & 2004-05 appears to have not brought foreign engineering consultancy service into the fold of service tax – entire issue to be re -examined in the light of the Bombay HC decision in Indian National Ship Owners Association ( 2008-TIOL-633-HC-MUM-ST ) and refund claim to be examined by also considering the bar of unjust enrichment.


Manipal Advertising Services Pvt Ltd Vs CCE, Mangalore (Dated: October 18, 2010)

Service Tax – Advertising Agency Service – Availment of CENVAT credit on documents not addressed to appellant's registered premises but to other unregistered premises (branch offices) – If a person is discharging service tax liability from his registered premises, benefit of CENVAT Credit cannot be denied only on the ground that the invoices are in the name of branch offices – Impugned order denying credit not sustainable, liable to be set aside


M/s Integrated Service Point (P) Ltd Vs CST, Chennai (Dated: November 24, 2010)

Service Tax – Refund – Service tax paid on Goods Transport Agency Service as provider of service who is not liable to pay service tax – Refund cannot be denied on the ground that the assessee had not produced evidence to establish payment of service tax as the revision notice itself proceeded on the basis that the service provider had paid an amount which the department considers as not payment of

service tax – Appeal allowed.


M/s A Suthanthar Asumitha Vs CST, Chennai (Dated: October 21, 2010)

Service Tax – Tour Operator service – Plea that the appellants posses permit only under Se ction 74 of the Motor Vehicle Act for contract carriage operator and do not possess permit under Section 88(9) – The only condition for levy of service tax is that the vehicle should be a tourist vehicle under Section 2(43) of the Motor Vehicles Act as held by the High Court of Madras – Since the adjudicating authority has not addressed himself to the basic issue as to whether the vehicles operated by the appellants are tourist vehicles in terms of Section 2(43) of the Motor Vehicles Act, matter remanded.


M/s Rishabh Laboratories Private Limited Vs CCE, Raipur (Dated: December 3, 2010)

C&F Agency service – gross amount paid by the client engaging such agent is to be taken as assessable value for payment of Service Tax and not the amount received from the clients as commission.

When Section 67 of the Finance Act, 1994 provides that in case of service provided by the C&F Agent, the assessable value would be the gross amount charged and in terms of Service Tax Rules 6 (8) of the Service Tax Rules, 1994, the value of the taxable service in relation to services provided by C&F Agent to a client is "gross amount of remuneration or commission by whatever name called paid to such agent", the expression "gross amount of remuneration or commission" would have to be interpreted as gross amount paid by the client engaging such agent which would include the expenses incurred for providing the service – No prima facie case – entire amount of tax, penalty and interest to be deposited.

Tribunal decision in Naresh Kumar & Co. vs. CST, Kolkata reported in - ( 2008-TIOL-1016-CESTAT -KOL ) relied upon.

If there is a conflict between the provisions of the Act and the provisions of the Rule made under that Act, it is the provisions of the Act, which will prevail and that the Rules must be interpreted in the manner, so far as to be in conformity with the provisions of the Act, which can be done by giving it an interpretation which may be different from the interpretation which the Rule could have, if it was construed independently of the provisions of the Act – SC decision in Ispat Industries Ltd. vs. CC, Mumbai reported in - ( 2006-TIOL-127-SC-CUS ) relied upon.


M/s Canara Motors Vs CCE, Mangalore (Dated: October 20, 2010)

Service Tax – Arrangement of drivers under ‘vehicle transportation contract' for transporting vehicles/chassis from factory to sales depots amounts to managing distribution and logistics, taxable under the head ‘support services of business or commerce' – Impugned order not sustainable, liable to be set aside


Indian Oil Corporation Ltd Vs CCE, Mumbai (Dated: December 14, 2010)

Notification 1/2006-ST - Condition of not taking "credit of duty paid on inputs of capital goods used for providing such taxable service" necessarily should relate to the services actually rendered – since appellant discharging Service tax as a recipient and deemed provider of service the restriction laid down in the Notification did not apply to them



CCE, Bangalore Vs M/s Yokogawa Blue Star Ltd (Dated: September 3, 2010)

Service Tax – Manufacture and sale of distribution control system and process control equipment to customers – Provision of training to officers/employees of customers on such systems/equipment is not technical assistance, activity not classifiable as consulting engineer service – No infirmity in impugned order of Appellate Commissioner – Revenue appeal devoid of merits


M/s Nestle India Ltd Vs CCE, New Delhi (Dated: January 17, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Online information and data base access and retrieval service received from outside India – Prima facie case for waiver of pre-deposit as the service provider is not providing access to any data of their own except receiving the data from the applicant and getting them processed as per the software in place and enabling them to retrieve their own processed data – Contention that no service tax is payable prior to 18.4.2006 is also relevant.



M/s Pawnar Satellite Vs CC & CCE, Jaipur (Dated: December 15, 2010)

Service Tax – Penalty - No element of mens-rea present in the case and presence of the elements for penalty being qua- mens the appellant should not suffer penalty – Apex Court in Rajasthan Spinning and Weaving Mills Ltd did not grant any power to the Department to levy penalty ipso-facto – Penalty under section 76 and 78 is set aside.


M/s G R Natarajan & Co Vs CST, Chennai (Dated: November 15, 2010)

Service Tax – Stay/Dispensation of pre-deposit – Construction of complex service – Service Tax on Part of the constructed area handed over to the land owners in exchange of the land – No prima facie case has been made out for waiver of pre -deposit.


Shri Ram Knitters Vs CCE, Ludhiana (Dated: November 12, 2010)

Commission paid by the appellant to the foreign service provider during the period 9.7.04 to 10.1.06 is not taxable in absence of taxing provision section 66A which came later into Statute Book by Finance Act, 2006 w.e.f 18.04.2006 - HC decision in Indian National Ship Owners Association ( 2008-TIOL-633-HC-MUM-ST ) relied upon.


Raj Associates Vs CCE & ST, Coimbatore (Dated: November 8, 2010)

Service Tax – Stay/Dispensation of pre-deposit – Construction of complex service – Though approved layout plan is for 37 residential units, the applicant constructed 8 residential units – Prima facie case made out for waiver of pre-deposit.


M/s Rajput Security Services Vs CST, Ahmedabad (Dated: December 15, 2010) Appellant providing security services and as well as housekeeping, gardening, etc. – demand raised under head of Security services - since it has an implication in the

quantum of service tax payable, matter remanded.


M/s Kedia Castle Delleon Industries Ltd Vs CCE, Raipur (Dated: January 18, 2011)

Service Tax – Packaging service – Activity of bottling, labelling, affixing hologram sticker and sealing of the glass bottles of country liquor is covered within the ambit of manufacture under Section 2(f) of the Central Excise Act, 1944 and no service tax is leviable .


CCE, Jaipur Vs M/s Rajasthan Synthetics Ltd (Dated: December 15, 2010)

Notification 41/2007-ST - Service tax paid on the taxable services which are not used as input service in the manufacture of export goods is not taken into consideration while fixing All Industry Rates of Duty Drawback – Revenue appeal dismissed.


M/s Dhaval Corporation Vs CST, Ahmedabad (Dated: December 24, 2010)

Reduced Penalty u/s 78 is available only if the amount of service tax, interest and the 25% penalty is paid within thirty days from the date of communication of the order-in-original - If the appellants have not made adequate arrangement to receive the order and have not given a proper address for correspondence and consequently if there was delay, no relief can be given - in any case neither the Tribunal nor the Commissioner (Appeals) have power to condone the delay in payment which is statutory.

Imposition of penalties u/s 76 and 78 of the Finance Act, 1994 – incidents of imposition of penalty are distinct and separate under two provisions and even if offences are committed in course of same transaction or arise out of same act, penalty imposable for ingredients of both the offences – Kerala HC decision in Krishna Poduval ( 2006-TIOL-77-HC-KERALA-ST ) relied upon.


M/s Framework Interiors Vs CST, New Delhi (Dated: October 12, 2010)

Service Tax - it is well settled law that all the details of inputs used need not be mentioned in the invoices/bills issued, and even value of goods which are subject matter of transfer can still be established by producing necessary documentary evidence - Equally, certificate issued by the Chartered Accountant cannot be termed as primary evidence – adjudicating authority has to consider the same and give a clear finding in that regard as to the acceptance or rejection thereof – however, revenue interest also to be safeguarded – Pre-deposit ordered of Rs. One crore.


M/s Hindustan Zinc Ltd Vs CCE, Jaipur (Dated: October 15, 2010)

Service Tax – Stay/Dispensation of pre-deposit – Credit of service tax paid on GTA service used for transportation of coal used for generation of electricity – Power generated is transmitted to sister unit – No prima facie case has been made out for waiver of pre -deposit – Rs 1 lakh ordered to be deposited.


CCE, Raigad Vs Maersk India P Ltd (Dated: December 28, 2010)

Assessee reimburses their employees the coaching fees paid by them from their own pocket to the service provider for coaching services received outside India – the employer has not made any payment to such coaching centre which is basic requirement of the Board Circular 59/8/03 dated 20.6.2003 to levy service tax liability – Revenue appeal rejected



M/s Continental Brakes Ltd Vs CCE, Jaipur (Dated: December 10, 2010)

No dispute on tax liability – Consequence of penalty is to deter recurrence of breach of law – time lost to collect revenue is compensated by collection of interest – appeal dismissed.

Tribunal decision in Greenply Industries Ltd. vs. CCE, Jaipur, ( 2006-TIOL-597-CESTAT -DEL ) is distinguishable.


M/s Lanco Infratech Ltd Vs CCE, Hyderabad (Dated: October 18, 2010)

Service Tax – Allegation of wrong utilization of CENVAT credit for payment of service tax on services received from outside India – Though there is no mention of payments through CENVAT A/c in ST-3 returns, in lieu of conflicting judgments on the subject matter, prima facie case for full waiver of pre-deposi t


M/s Sayaji Hotels Ltd Vs CCE, Indore (Dated: January 25, 2011)

Service Tax - Mandap Keeper - contract of a Mandap keeper with its customer, even if it involves catering service, is a contract of service not a contract for sale - cost of food cannot be deducted: the contract of the Mandap keeper with its customers is to allow use of Mandap with all its facilities like decoration, lighting, stage, music, catering service etc. for some consideration for organizing some official, social or business function. The catering service provided is a service incidental and ancillary to the service in relation to use of Mandap and though it involves supply of food and beverages, it is essentially a service contract, not for sale of food and beverages. Thus the contract of a Mandap keeper with its customer, even if it involves catering service, is a contract of service not a contract for sale: there was no sale contract in the Appellant's contract as Mandap keeper for the purpose of levy of service tax under Finance Act, 1994 and therefore exemption Notification No. 12/03-ST is not available to the Appellant.



Parveen Travels Private Ltd Vs CST, Chennai (Dated: November 8, 2010)

Service Tax – Stay/Dispensation of pre-deposit – Show Cause Notice alleged "Tour Operator service" and demand was confirmed under "Rent-A-Cab Operator Service" – Prima facie case has been made out for waiver of pre -deposit as there was no proposal in the Show Cause Notice to demand service tax under “Rent-A-Cab Operator Service”.


Larsen And Toubro Ltd Vs CST, Ahmedabad (Dated: January 25, 2011)

Service Tax - Commercial or Industrial Construction Service - Laying of pipelines for water supply projects run by Gujarat Water Supply and Sewerage Board, not leviable to tax : The only point that has been stressed by the Revenue is that the GWSSB is buying water @ Re.1 /- per ltr and selling at Rs.2 /- per ltr to Rs. 15/- per ltr . The definition uses words "used for commerce" or "primarily used for commerce". This would mean that. Revenue is required to show that the purpose of construction of

pipelines is for "commerce" or "primarily for commerce". "Commerce" would mean buying and selling not necessarily for profit according to Revenue. But, the question here is the purpose of buying water by GWSSB was for selling or not. Obviously, the purpose of buying water and bringing it from Narmada Dam was not for selling it, but for supplying it to needy people. In this case, buying and selling is incidental. The purpose is supply of water to the needy citizens of the State. The term used "for commerce" would mean that only purpose would be buying and selling, which is definitely not the case here. The term used "primarily for commerce" would mean that primary purpose should be buying and selling and the other purposes also may be served incidentally. In this case, purchase and sale of water are incidental and the main purpose is supply of water to needy citizens of the State.

Judicial Discipline : Since the Tribunal had considered and held that the pipeline was not used or to be used primarily for commerce or industry, and the Tribunal had also considered the meaning of "commerce" or "industry", the bench would be bound by Co-ordinate Bench decision and judicial discipline requires that the same has to be followed.



Indoworth (India) Ltd Vs CC & CCE, Nagpur (Dated: December 24, 2010)

Appellant paying Service Tax on the commission paid to foreign commission agent and also paying interest for the delayed payment – ST paid availed as CENVAT credit and utilized for payment of duty on excisable goods – later refund claim filed for interest paid contending that since ST payable only from 18.04.2006 no question of paying any interest – Claim rejected by lower authorities holding that ST was legally payable and section 11B at the relevant time did not provide for refund of interest - Appellant cannot be allowed to extricate or de-link interest liability from the delayed payment of service tax already utilized as CENVAT credit for payment of duty on excisable goods - claim of the appellant for refund of interest cannot be allowed

Appellant not entitled to claim refund as the amount of interest paid by them was inextricably linked with the amount of service tax already availed and utilized as CENVAT credit in their business - presence or absence of statutory provision for refund of interest is immaterial - it can be said that neither Section 11B nor any principle of equity was invocable by the appellant for claiming refund of interest



M/s Marine Container Services (South) Pvt Ltd Vs CCE, Tirunelveli (Dated: November 9, 2010)

Service Tax – Ship's husbandry service – Detention charges collected from shippers and retained with agent are includable in husbandry charges – Logistic fee for container handling is also husbandry fee – Demand of service tax upheld – Penalty reduced to the amount of service tax upheld.


S Nagaraj Vs CCE, Tiruchirapalli (Dated: October 29, 2010)

Service Tax – Exemption under Notification No 6/2005 ST – Since the assessee had not availed the exemption and paid service tax, as per clause 2(i) of the Notification, once such option is exercised in a financial year, the same shall not be withdrawn during remaining part of the financial year – Demand of service tax and penalty upheld.


CCE, Chandigarh Vs M/s Siel Chemical Complex (Dated: December 3, 2010)

Service Tax – Liability to pay service tax on the services received from outside India - The recipients of services from Foreign Service provider cannot be subjected to liability to tax prior to 18.4.06 i.e. prior to introduction of Section 66A in the Finance Act, 2006.


M/s Inland Mines & Minerals Pvt Ltd Vs CCE, Rajkot (Dated: November 12, 2010)

Appellant liable to pay Service Tax as a recipient of GTA service but was not aware of the same – on their own initiative they paid service tax along with interest – for delay in payment department imposed penalty – in view of Board Circular No.137/167/2006-CX-4 dated 03.10.07 referring to provisions of section 73(3) of the Finance Act, 1994 no show cause was required to be issued – penalty set aside – appeal allowed with consequential relief.


M/s Archistructural Constructions India Pvt Ltd Vs CCE, Coimbatore (Dated: November 9, 2010)

Service Tax – Stay/Dispensation of pre-deposit – Commercial or Industrial Construction Service – Air Catering Unit - T he area in which the air catering unit has been constructed is a part of the aerodrome / airport and hence the service relating to construction of the air catering unit on such area would get excluded from the definition of 'commercial or industrial construction service' – Prima facie case made out for waiver of pre -deposit.


CCE, Tirunelveli Vs M/s Ramesh Enterprises (Dated: December 13, 2010)

Service Tax – Power to remand by Commissioner (Appeals) – Provisions of Section 35A of the Central Excise Act, 1944 are not applicable for appeals relating to Service Tax – Commissioner (Appeals) derives power to decide the appeals from Section 85 of the Finance Act, 1994 which does not preclude the Commissioner (Appeals) from passing a remand order if he thinks fit. Revenue appeal has no merit.



M/s BHR Contractors Vs CCE, Coimbatore (Dated: October 18, 2010)

Service Tax – Stay/Dispensation of pre-deposit - Erection, Commissioning or Installation of pipelines for supply of water – Prima facie case has been made out for waiver of pre -deposit in view of the CESTAT orders in favour of the applicant.


M/s Rajratan Global Wires Ltd Vs CCE, Indore (Dated: November 3, 2010)

Central Excise – CENVAT Credit – Credit of service tax paid prior to 18.4.2006 on services received from outside India – Credit cannot be denied on the ground that no service tax was payable prior to 18.4.2006 – Impugned order denying credit and imposing penalties is set aside.



Mukand Ltd Vs CCE, Belapur (Dated: November 29, 2010)

Repairs of Toilet blocks in Housing colony – Input service credit is not admissible in view of decision in Manikgarh Cement ( 2009-TIOL-2059-CESTAT -MUM ) and SEMCO Electric Put. Ltd. vs. CCE - ( 2010-TIOL-162-CESTAT-MUM ) – Appeal rejected.


CCE, Rajkot Vs M/s Port Officer (Dated: December 24, 2010)

Service Tax - Penalty - Reduction of Penalty under Section 76 below the statutory minimum - Revenue Appeal for enhancement of Penalty rejected - In this case, the assessee was not in appeal against the penalty of Rs.10,000 /- and it was only Revenue which was in appeal requiring enhancement of penalty. Therefore, even though the provisions of Section 76 read with Section 80, would mean that the penalty cannot be reduced but can only be waived totally. In a case like this, where the appeal is only for enhancement and not against the reduced amount by the party who has been visited with penalty, the issue before the Tribunal for consideration would be whether this is a fit case for enhancement or not. Since Tribunal agrees with the view taken by the Commissioner (Appeals) that assessee has shown reasonable cause and is eligible to the benefit of Section 80, the question of enhancement does not arise. At the same time, it is not possible to hold that penalty is to be reduced to Zero in the absence of the appeal by the assessee. Further, if penalty is reduced to zero, it would amount to putting Revenue in a worse position before appeal was filed which is against the settled law.

cestat ruling - tiol

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