A. Classification of Service
Banking and other financial services
1. The Tribunal held that merchant discount earned by an acquiring bank from a merchant establishment could not be considered as a service ‘in relation to’ ‘credit card services’ [Section 65(12) read with S. 65(105)(zm)] and accordingly the same was not liable for service tax under the category of banking and other financial services prior to 1-5-2006 as services provided by the acquiring bank to the merchant establishment in relation to settlement of an amount transacted through a card as provided in s. 65(33a)(iii) w.e.f. 1-5-2006 was not covered in the scope of credit card services defined in section 65(12).
Standard Chartered Bank v. CST (2015) 40 STR 104 (Tri.-LB)].
2. The Tribunal, relying on the decision of Tata Steel Ltd., held that charges paid to overseas agents in case of an External Commercial Borrowing were liable to service tax under the Reverse Charge Method.
Gitanjali Gems Ltd v. CST – 2016 (43) STR 230 (Tri. – Mum.)
Business Auxiliary / Support Services
3. The Tribunal held that octroi agents engaged in merely reading and filling up invoices and challans and obtaining clearances at check posts do not deal with documents of title since they do not have the authority to transfer them and therefore are not liable to service tax under the category of Business Auxiliary Services.
Trimurti Octroi Company v. CCE (2015) 40 STR 152 (Tri. – Mum.)
4. The Tribunal held that where the appellant was awarded contract by National Highways Authority of India (“NHAI”) for collection of tolls either under a fixed remuneration contract (i.e., it being paid a fixed amount for collecting tolls) or a toll rights contract (where it bids and acquires toll collection right for specified period for a specified price) the amounts received by the it would not be liable to service tax under category of Business Auxiliary Services since the activities carried on by NHAI, a statutory body established under National Highways Authority of India Act, 1988 for development and maintenance and management of highways, were in the nature of sovereign function. Accordingly, it held that since the activities of NHAI were not in the nature of business, the services provided by the appellant could not be considered as Business Auxiliary Services
Ideal Road Builders P. Ltd. v. CST (2015) 40 S.T.R. 480 (Tri. – Mum.)]
5. The Tribunal held that no service tax was to be levied on collection of smart card / vehicle registration fees and other charges, since the charges were neither covered under ‘Customer Relationship’ nor even under residuary category ‘other transaction processing’ under BSS.
Wonder Cars Pvt. Ltd. v. CCE – 2016 (42) STR 1055 (Tri. – Mum.)
6. The Tribunal held that the assessee, engaged in providing services of displaying and storage of goods, entitled for remuneration based on the quantum of sale was chargeable to tax under the category of Business Auxiliary Services as the arrangement was in the nature of commission agency.
CM Sakpal v. CCE – 2016 (43) STR 106 (Tri. – Mum.)
7. The Tribunal held that commission received for marketing auto loan products was liable for service tax under the category of Business Auxiliary Services. Further, it held that the amount received by the assessee for achieving sales targets under Target Incentive Schemes was not liable to tax under Business Auxiliary Services since the receipt was in the nature of trade discount extended to the assessee.
Sharyu Motors v. CST – 2016 (43) STR 158 (Tri. – Mum.)
8. The Tribunal held that where a person was found to be a commission agent because of sale or purchase of goods or services for a consideration linked to the quantum thereof, and he also performed other activities, the benefit exemption viz. Notification No. 13 / 2003-ST would cover all Business Auxiliary Services rendered by the agent and not only to the portion relating to the sale/purchase.
Chhabria Marketing Ltd v. CST – 2016 (43) STR 193 (Tri. – Mum.)
9. The Tribunal observed the distinction between Business Auxiliary Services and Business Support Services and held that from the view point of the service recipient, Business Auxiliary Services is outsourcing in relation to externality of business while Business Support Services is outsourcing of the internal activities of a business entity.
Bhaven Desai v. CST – 2016 (43) STR 235 (Tri. – Mum.)
10. The Tribunal held that where the assessee merely facilitated in expeditious receipt of export incentives by filing drawback claims etc, neither did it facilitate any sale of goods nor was it providing any service related to the promotion or marketing of goods and therefore could not be subject to service tax under the category of Business Auxiliary Services.
Jak Traders Pvt. Ltd. v. CCE – 2016 (43) STR 259 (Tri. – All.)
11. The Tribunal held that commission on distribution of SIM cards was not liable to service tax in the hands of the distributors as Business Auxiliary Services as it was well settled law that the principal providing such services was liable to service tax on MRP which included the commission.
Goyal Automobiles v. CCE – 2016 (43) STR 268 (Tri. – Del.)
12. The Tribunal held that where the appellant only deputed employees to group companies, wherein the sales carried on by the deputed personnel were considered to be the sales of the group companies and such personnel were called back after job was completed, such activity did not fall under the category of Business Auxiliary Services as the appellant did not render any service of promotion or marketing of goods manufactured by group companies.
Franco Indian Pharmaceutical (P) Ltd. v. CST, Mumbai 2016 (42) STR 1057 (Tri. – Mum.)
13. The Court held that writing articles for newspapers, sports magazines or any other form of media, anchoring of TV shows and playing of IPL matches would not be liable to tax under the category of Business Auxiliary Services.
Sourav Ganguly v. UOI 2016 (43) STR 482 (Cal.)
14. The Tribunal held that where the assessee was engaged in the activity of promoting, managing, administering and assisting in growth and operation of the Group of concerns by way of entering into a cost sharing agreement by way of which it merely functioned as a trustee/manager to obtain, hold and manage resources for carrying out activities, the consideration flowing to it by way of reimbursements from the other Group entities could not be considered as consideration for service provided and therefore could not be taxed under the category of Business Support Services.
Reliance Ada Group Pvt. Ltd. v. CST 2016 (43) STR 372 (Tri. – Mum.)
15. The Tribunal held that the activity of arranging for entire transportation, dispatching of goods, supervising loading and unloading of goods was covered under Business Support Services and not under Business Auxiliary Services. It further held that the activity of organising orders, distribution of goods and collection of the said goods was liable to service tax under the category of Business Auxiliary Services.
Emerald System Engg Ltd. v. CST 2016 (43) STR 545 (Tri. – Mum.)
16. The Tribunal held that the Department was incorrect in demanding tax on consideration received by the assessee for the extended warranty offered for cars by treating the same as Business Auxiliary Services since there was no enhancement of business arising from the extended warranty scheme.
CCE & ST v. Honda Siel Cars India Ltd. 2016 (43) STR 390 (Tri. – Del.)
17. The Tribunal held that where goods were purchased by the assessee, Distributor from Amway at a lower price and sold at MRP, there was no service provided by the assessee and the activity could not be considered as Business Auxiliary Services. It held that when the goods were purchased by the assessee, they ceased to be owned by Amway and the ownership transferred from Amway to the Distributors and that the commission received by the assessee for buying certain quantum of goods were in the nature of bulk discount and could not be termed as promotion of sale of goods.
Chranjeet Singh Khanuja v. CST – 2016 (4) STR 213 (Tri.-Del.)
Club or Association Service
18. The Tribunal held that receipts from members were not liable to tax as Service Tax under FA, 1994 was not on the basis of the entity or on amounts received by the entity but was on specified taxable service and hence taxability could only arise to the extent that each transaction between member and club met the test of conformity with Section 65(105)(zzze)of FA, 1994. Further, it held that the recovery of amounts from staff towards accommodation provided to them were not liable to service tax as contractual privileges of employer-employee relation were outside the purview of service tax and this activity did not fall within the definition of taxable service of renting of immovable property. It also held that receipts towards providing consumables to members were liable to service tax.
Gondwana Club vs. CC&CE 2016 (42) STR 895 (Tri.-Mum.)
19. The Tribunal relying on Reliance Michigen (JV) 2014 (35) STR 620 (Tri.-Mum.)
held that desilting of Mithi river was liable to service tax.
R. P. Shah v. CCE – 2016 (42) STR 839 (Tri. – Mum.)
Management Consultancy Service
20. The Tribunal held that the services provided by the assessee to a hotel viz. advice, consultancy and assistance directly connected with management of hotel, were to be taxed under the head Management Consultancy Services and not Business Auxiliary Services since neither resulted in promotion of hotel business nor was any service rendered on behalf of the hotel to customers.
PIEM Hotels Ltd v. CCE 2016 (43) STR 211 (Tri. – Mum.)
Management, Maintenance and Repair Service
21. The Tribunal held that levy of service tax on repair & maintenance of software was permissible only w.e.f. 1-6-2007 wherein an amendment was made in the definition of management, maintenance and repair service and not prior to that date.
Oracle Financial Services Software Ltd. v. CST (2015) 40 STR 316 (Tri. – Mum.)
22. The Tribunal held that the assessee, engaged in the activity of operating plants such as cooling water system, compressed air system and boilers could not be taxed under the category of Management, Maintenance or Repair Service since there was no clause in the contract for providing such services as mere operating of plant was not covered under this service.
CST v. Global SS Construction Pvt. Ltd. 2016 (43) STR 433 (Tri. – Mum.)
Manpower Recruitment & Supply Agency Services
23. The Tribunal held that where the assessee, an educational institution imparting courses in engineering and technology services, collected charges from its students for facilitating placements of students in various organisations, no service tax could be demanded under the category of Manpower Recruitment or Supply Agency Services since in the case Manpower Recruitment or Supply Agency Services, the service recipient has to be an employer or prospective employer and the consideration for service must flow from such employer. In the present case, as the charges were collected from students and not from the employers hence no service tax was payable thereon under the category of Manpower Recruitment or Supply Agency Services.
Motilal Nehru National Institute of Technology v. CCE (2015) 40 STR 375 (Tri. – Del.)
24. The Court held that merely because the repair of road and airports was excluded from construction services did not mean that it could not be taxed under any other taxable service specifically when the Legislature thought it fit to bring it within management, maintenance or repair service. It further held that retrospective exemption to activity of management, maintenance or repair of road w.e.f 16-6-2005 did not include runways in airport.
DP Jain & Co. Infrastructure Pvt. Ltd. v. UOI 2016 (43) STR 507 (Mum.)
25. The Tribunal held that supplying models/actors for advertising of products or TV serials/films was not covered within the definition of Manpower Recruitment & Supply Agency Service during the period 2001-02 to 2002-03.
Israni Networking v. CCE, Mumbai 2016 (42) STR 917 (Tri. – Mum.)
26. The Court held that the services provided by the appellant viz. providing buses for transportation of passengers to Andhra Pradesh State Road Transport Corporation (‘APSRTC’) on stage carriage basis, was liable to service tax and dismissed the contention of the appellant that service tax was not leviable as it was a joint operation between two entities and held that providing buses on hire to APSRTC was an independent activity and not a joint operation with States for plying buses. It further held that, even though the buses with stage carriage permits could not be hired according to Motor Vehicles Act, 1988, the chargeability of service tax on impugned services was independent of provisions contained in Motor Vehicle Act, 1988.
S. K. Kareemun v. CCEC & ST Hyderabad 2016 (42) STR 988 (Tri. – Bang.)
Renting of Immovable Property
27. The Court held that rent collected for lease of various plots allotted by the assessee to various lessees for business or commercial purposes was liable to service tax under the category of Renting of Immovable Property Services. Further, it held that the term/period of the lease i.e. whether for short duration or for 90 years of perpetuity makes absolutely no difference.
Greater Noida Industrial Development Authority v. CCE, 2015 (40) STR 95 (All.)
28. The Court held that renting of vacant land for construction of a building for use at a later stage for business or commerce is liable for service tax only w.e.f. 1-7-2010 and not prior to that date.
CST vs. Greater Noida Development Authority (2015) 40 STR 46 (All.)
Restaurant Services and Short-term Accommodation Services
29. The Court upheld the constitutional validity of imposition of service tax on supply of food during rendering restaurant services [s. 65(105)(zzzzv)] and short-term accommodation services [s. 65(105)(zzzzw)] upheld since they imposed a service tax only on service aspect of the transaction.
Ballal Auto Agency v. UoI (2015) 40 STR 51 (Kar.)
Supply of Tangible Goods Service
30. The Tribunal held that where the appellant received certain amounts for hiring out pipes manufactured by them for use by farmers in agricultural operations, resulting in the transfer of possession and effective control to such farmers, on which amounts VAT had been paid, demand of service tax on the said amounts under the category of supply of tangible goods was not permissible.
Sujala Pipes Pvt. Ltd. v. CCE (2015) STR 606 (Tri.- Bang.)
Technical testing and analysis
31. The Tribunal held that services of clinical testing of drugs and medicines was not liable for service tax prior to 1-5-2006
Wellquest v. CST (2015) 40 STR 185 (Tri.-Mum.)
32. The High Court relying on Apex Court decision in 2006 (2) STR 161 (SC), held that the activation of SIM card is a service and not a sale and in the absence of any statutory provision under State VAT law, authorising collection of sales tax/VAT on SIM cards its collection from petitioners was without authority of law and hence non-est and therefore it directed the State Government to transfer the amount due as refund of unauthorisedly collected VAT to Service Tax Department for adjusting same towards demand made by them.
Idea Cellular Ltd. v. UOI 2016 (42) STR 823 (P&H)
Tour Operator’s Service
33. The Tribunal held that the assessee, engaged in plying of contract carriage vehicles to various places was not liable to tax under the category of Tour Operator’s Service since the buses operated by the assessee were under contract carriage permit and not under a tourist permit and therefore did not conform to specification of tourist vehicle.
SVR Tours and Travels v. CCE & ST 2016 (43) STR 405 (Tri. – Hyd.)
34. The Tribunal relying on Larger Bench decision in Bhayana Builders Pvt. Ltd. 2013 (32) STR 49 (Tri.-LB) held that free supplies to sub-contractor by construction service provider was not includible in gross amount chargeable to tax.
Harsh Construction v. CCE & ST 2016 (42) STR 844 (Tri. – Ahmd.)
35. The Tribunal relying on majority decision of Tribunal in 2012 (26) STR 225 (Tri.-Chennai) held that the benefit of deduction of cost of raw materials consumed in providing retreading of old and used tyres was not available. The concept of deemed sales of goods only applied in works contract service and not in case of present service and therefore the value of rubber was includible in gross amount and the benefit of Notification No. 12/2003-ST was not available.
CCE, Goa v. Tyresoles India Pvt. Ltd. 2016 (42) STR 861 (Tri. – Mum.)
36. The High Court held that no service tax could be levied on construction of complex intended for sale by builder before, during or after construction by deeming it to be a service as there was no statutory mechanism to ascertain value of service component subject of levy. It noted that neither Rule 2A of Valuation Rules, 2006 provide for determination of value of services in case of composite contract involving sale of land, nor did the Valuation Rules, 2006 or FA, 1994 have any provisions for determining value of service covered under construction service.
Suresh Kumar Bansal v. UOI 2016 (43) STR 3 (Del.)
37. The Tribunal held that the chargeability of certain amounts received being attributable to a specific taxable service cannot presumed to confer authority to tax other amounts received from the same entity for services unknown and therefore where the assessee claimed that it received reimbursements from the service recipient which were attributable to the cost of product provided by it, such cost would fall outside the scope of inclusion in ‘gross amount charged’.
Bhaven Desai v. CST – 2016 (43) STR 235 (Tri. – Mum.)
38. The Tribunal held that cost of items supplied / sold as spare parts and lubricants in the course of providing services could not be included in the taxable value of services when shown separately.
Tanya Automobiles P. Ltd. v. CCE &ST – 2016 (43) STR 155 (Tri. – All)
39. The Tribunal held that where the assessee availed services from a foreign architect for designing and planning of various commercial buildings and did not pay service on the Income-tax borne by them, the assessee was liable to pay service tax only on the invoice amount and no service tax liability could be imposed on the assessee in respect of the TDS, since there was nothing on record to indicate that the assessee recovered TDS.
Magarpatta Township Dev & Construction Co. Ltd. v. CCE – 2016 (43) STR 132 (Tri. – Mumbai)
40. The Tribunal held that passenger service fees collected by the assessee on behalf of the Airport Authority of India and paid to the said authority could not be included in the value of services.
Lufthansa German Airlines v. CST, (Adjn), New Delhi 2016 (43) STR 636 (Tri.- Del.)
41. The Tribunal held that free supply of items by service recipient could not be added to the value of service and that bonus or incentive given for good performance to service provider after the completion of service could not be be assumed to be the value of services as it was not known at the time of provision of services.
AMR India Ltd. vs Commissioner of C. Ex. Cus. And S.T. Hyderabad-II – 2016 (42) STR 329 (Tri. – Bang.)
C. CENVAT Credit
42. The Court allowed the assessee CENVAT credit of service tax paid on lease rent of land and construction services for the purpose of putting up the factory since the lease was in relation to the manufacture of final product and the construction services used for setting up the factory would fall in the ‘means’ part of the definition of input service, being a service used directly or indirectly for manufacture of final product.
CCE v. Bellsonica Auto Components India P. Ltd. – (2015) 40 STR 41 (P&H)
43. The Tribunal held that CENVAT credit of service tax paid on life insurance of staff and rent-a-cab services availed for providing conveyance to staff was to be allowed during the relevant period especially considering that these costs were included for the purpose of billing to the clients.
Mount Kellett Management (I) Pvt. Ltd. v. CST (2015) 40 STR 165 (Tri. – Mum.)
44. The Court held that credit of service tax paid by recipient of service under reverse charge could be availed on the basis of TR-6 challan even prior to 16-6-2005 viz. the date from which challan can be treated as document for availing CENVAT credit.
CCE v. MRF (2015) 40 STR 211 (Mad.)
CCE v. Sidhbali Steels Pvt. Ltd. (2015) 40 S.T.R. 458 (Uttarakhand).
45. The Tribunal held that prior to 1-4-2011 availment of CENVAT credit on construction services used for setting up of factory would be admissible
CCE. v. Technico Industries Ltd. (2015) 40 STR 259 (Tri. – Del.)
46. The Tribunal held that denial of CENVAT credit availed on outdoor catering services on the grounds that such credit would be admissible only where the assessee was statutorily obligated to provide canteen services to its employees was incorrect.
Paramount Communications Ltd. v. CCE (2015) 40 STR 265(Tri.-Del.)
47. The Tribunal allowed CENVAT Credit of Service tax paid on maintenance of wind mills used to generate electricity used for manufacture of final products was admissible and could not be denied on the ground that the wind mills were located far away from the factory, since there was no stipulation that input services (unlike inputs) were to be received in the factory
Parry Engg. & Electronics P. Ltd. v. CCE & ST (2015) 40 STR 243 (Tri. – LB)
48. The Tribunal allowed CENVAT credit on freight inward, telecommunication, security, insurance, consultancy and courier admissible being services used in manufacture of excisable goods in the course of business.
CCE v. S.K.H. Metals Ltd. (2015) 40 STR 690 (Tri.-Del.)
49. The Tribunal allowed CENVAT credit on construction services used for setting up factory (June, 2005 to September, 2010)
CCE v. Madhusudan Auto Ltd. (2015) 40 STR 732 (Tri. – Del.).
50. The Tribunal allowed the assessee CENVAT credit on helicopter services availed for the transportation of Directors and Chairmen, rent-a cab and contract bus services used for transportation of officers and management consultancy services availed.
SanmarFoundaries Ltd. v. CCE, Trichy 2016 (43) STR 362 (Tri. – Chenn.)
51. The Tribunal held that the Department was incorrect in demanding 10%/5% of the sale price of exempted goods on which the assessee reversed proportionate credit used for the manufacture of these exempted goods under Rule 6(3), merely because the assessee failed to intimate the option to the department. It held that Rule 6(3A) merely provided the procedure for application of Rule 6(3) and did not provide that any failure in the procedure would cause the assessee to lose out on the choice of availing option of Rule 6(3).
Aster Pvt. Ltd. v. CC & CE, Hyderabad-III 2016 (43) STR 411 (Tri. – Hyd.)
52. The Tribunal allowed the assessee CENVAT credit on health and fitness services for the employees of the assessee’s BPO since it was crucial to ensure the optimum performance of the employees, transportation services for the transportation of goods and service tax levied on electricity used in the assessee’s business operations.
Sitel India Ltd. v. CCE, Mumbai-II 2016 (43) STR 424 (Tri. – Mum.)
53. The Tribunal held that prior to 1-4-2011, the definition of input services had a wider ambit and included activities relating to business besides services used directly or indirectly or in relation to manufacture of final product and therefore held that the Department was incorrect in denying the assessee credit on various input services in relation to software services exported by the EOU on the ground that there was no nexus with output services.
Xilink India Technology Services v. CCCE & ST, Hyderabad-IV 2016 (43) STR 438 (Tri. – Hyd.)
54. The Court allowed CENVAT Credit of service tax paid for services availed for infusing finance in a manufacturing company, since the same was undoubtedly related to the manufacturing activity.
CCE, Bangalore v. Sanmar Speciality Chemicals Ltd. 2016 (43) STR 347 (Kar.)
55. The Tribunal held that CENVAT credit on pest control services for maintaining records was admissible.
CCE v. Lucas TVS Ltd. (2015) 40 STR 741 (Tri. – Chennai)
56. The Tribunal held that neither Rule 5 of CCR, 2004 providing for grant of refund nor Notification No.12/2005- ST providing for rebate of service tax paid in respect of export of services provides that the assessee has to export services on or after 19-4-2005 to avail benefit of rebate of CENVAT credit and hence it could not be said that only export made after 19-4-2005 were eligible for refund under Rule 5.
JP Morgan Services India Pvt. Ltd. v. CCE(ST) 2016 (42) STR 982 (Tri. – Mumbai)
57. The Court held that in the view of settled law, the credit of service tax paid on outward freight up to customer’s premises was admissible as CENVAT credit.
CCE, Chandigarh-I v. Rine Machine Tools 2016 (42) STR 809 (P&H)
58. The Tribunal allowed the assessee CENVAT credit on service tax paid on services for raising finance, disinvestment and acquisition of shares as a part of an expansion activity since it was directly connected with the business of the assessee.
Hinduja Global Solutions Ltd v. CCEST & C 2016 (42) STR 932 (Tri. – Bang.)
59. The Court held that prior to insertion of clause (d) in Rule 7 of CCR, 2004,there was no requirement of distributing input services on pro rata basis.
CCE v. National Engineering Industries Ltd. 2016 (42) STR 945 (Raj.)
60. The Tribunal held that where the assessee was first registered as a service recipient and subsequently registered as a service provider, CENVAT credit on capital goods purchased at the time at which it was registered as a service recipient could not be denied merely because it was not registered as a service provider. Further, it observed that Rule 4(2) of CCR allows an assessee to avail 50% of CENVAT on purchase of capital goods in the first year and balance CENVAT in the subsequent years and therefore, if no credit was taken by the assessee in the first year at all, the assessee could avail 100% CENVAT in subsequent years.
Commr. of Ex., Goa vs. Kamat Construction & Resorts Pvt. Ltd.-2016(42) STR 450 (Tri. – Mum)
61. The Tribunal denied the assessee its claim of CENVAT credit on works contract availed by it and held that the works contract service was not one service but a bunch of various activities such as renovation, repairs, construction erection, installation where material was also involved during the course of provision of service. It held that if renovation and modernisation services were provided and classified individually, they would be eligible for credit but if these services were provided as bunch under a works contract, they could not be considered as input services and therefore, if CENVAT credit was allowed on the basis of nature of service by claiming that the services were for renovation and modernisation of premises, it would make exclusion the clause of input services (excluding works contract services) redundant.
JDSU India Pvt. Ltd. v. Commissioner of Service Tax, Pune – 2016 (42) STR 752 (Tri. – Mum.)
62. The Tribunal allowed CENVAT credit on various services as they fell under inclusive part of definition of input services used for providing operating port and its services. Further, it held that cement and steel used for construction of jetty could not be considered to be used for providing taxable output service and they were neither capital goods nor inputs, hence CENVAT credit thereon was not admissible.
Adani Port & Special Economic Zone Ltd. v. CST 2016 (42) STR 1010 (Tri. – Ahmd.)
63. The Tribunal held that Works Contract Service was only excluded from the definition of input services when it is used for construction service, whereas in the present case the service was used for maintenance of office equipment and building therefore, this particular works contract service did not fall under the exclusion category and was eligible for refund under Rule 5.
M/s. Red Hat India P. Ltd. v. Principal Commissioner, Service Tax, Pune. – 2016 – TIOL-1300-CESTAT-Mum
64. The Tribunal held that credit of capital goods used for both the activities of job-work as well as for manufacturing dutiable products was admissible in terms of Rule 6(4) of CCR, 2004. It further held that once capital goods were transferred under the cover of an invoice, the transferee was not required to prove the correctness of CENVAT credit availed by transferor.
Intertool Engg. & Trading Co. (P) Ltd. v. Commissioner of Central Excise, Delhi-II – (2016) 69 taxmann.com 101 (New Delhi-CESTAT)
65. The Court held that as per Rule 3(1) of the CENVAT Credit Rules, 2004 a manufacturer or a service provider was allowed to take credit on various duties including excise duty, service tax etc. and therefore held that the Tribunal has rightly concluded that cross-utilisation was permitted, it was further noted that department has issued a circular dated 30-3-2010 on the issue of cross utilisation guiding the departmental officers on the accounting aspects and on verification of the credits in both the excise and service tax returns.
Commissioner of Central Excise, Pune-I vs. S.S. Engineers 2016(42) STR 3 Mum.)
66. The Tribunal held that where the ownership and responsibility of goods were transferred by way of sale to the buyer on delivery at the destination, the place of removal was the buyer’s premises and therefore CENVAT credit on transportation and transit insurance on finished goods from factory to buyer’s premises was allowable.
Ashoka Industries v. CCE – 2016(42) STR 1009 (Tri/ – Del.)
67. Where the assessee, providing Tour Operator Services, reversed CENVAT credit claimed by it and paid consequent interest on the same to avail of the exemption provided in Notification No 1/2006-ST (exempting tour operators from service tax provided no CENVAT Credit had been claimed by them), the Tribunal held that the payment of CENVAT credit and interest amounted to non-availment of Credit and therefore the exemption stipulated in the Notification was available to the assessee.
Travel Inn India Pvt. Ltd. v. Commissioner of Service Tax, Delhi – 2016(41) STR 236 (Tri.-Del.)
68. The Tribunal held that CENVAT credit could not be denied merely on belated filing of declaration under Rule 6(3A) as the conditionof filing declaration was only directory and not mandatory and the substantial benefit of claiming CENVAT Credit could not be denied due to minor procedural lapses.
Tata Technologies Ltd. vs. Commissioner of Central Excise, Pune-I -2016 (42) STR 290 (Tri. – Mum)
69. The Tribunal held that no CENVAT credit of duty / tax paid on capital goods, inputs and input services availed by the branch of the assessee in Jammu & Kashmir was available since no taxable services were provided therefrom.
Vodafone Essar Spacetel Ltd. v. CCEC & ST 2016 (43) STR 124 (Tri. – Kol.)
70. The Tribunal held that as per Rule 3(1) of the CCR, 2004, for the purpose of claiming CENVAT credit on service tax paid by the assessee, the amount of tax was to be separately indicated on the invoice failing which no credit could be availed.
Bovis Lend Lease India Pvt. Ltd. v. CST 2016 (43) STR 253 (Tri. – Bang.)
71. The Tribunal allowed the assessee CENVAT credit of service tax paid on catering services availed for maintenance of canteen in the factory premises, being an obligation under the Factories Act. However, it held that no CENVAT credit on service tax paid on renting of cycle stand in the factory could be claimed since it did not have nexus with output services / manufacturing activities carried out by the assessee.
Sundaram Fastners Ltd. v. CCE 2016 (43) STR 267 (Tri – Chenn.)
72. The Court held that the benefit of Notification No 1/2006-ST was available even if the earlier credit taken by the assessee had been reversed subsequently along with interest as the same would amount to a situation where no credit was availed.
CCE v. Sanjay Engineering Industries 2016 (43) STR 354 (Raj.)
73. The Tribunal allowed the assessee CENVAT credit of service tax paid on insurance premium for employee’s welfare and compensation paid for hazard and pest control services used for protection of the business.
Sundaram Fastners Ltd. v. CCE, Chennai-II 2016 (43) STR 454 (Tri. – Chenn.)
74. The Tribunal allowed the assessee CENVAT credit of service tax paid on construction of a dormitory within the factory premises for technicians and engineers as the factory was located in a remote area.
Bajaj Hindustan Ltd. vs. CCE, Meerut 2016 (43) STR 461 (Tri. – Del.)
75. The Tribunal held that repair and maintenance of building / plant / road was an input service as the definition of input service specifically included services used in relation to modernisation, renovation, repair of factory and only excluded construction services from its purview.
CCE, Delhi-III v. Exide Industries Limited 2016 (43) STR 463 (Tri. – Del.)
76. The Tribunal held that in the absence of any restriction under any statutory provision providing that CENVAT Credit could be claimed only after registration, credit could not be denied to the assessee due to mere non-registration.
Pithampur Tools Pvt. Ltd. v. CCE, Indore 2016 (43) STR 465 (Tri. – Del.)
77. The Tribunal held that where the service provider had wrongly charged service tax on 67 percent of the services instead of 33 percent, the service recipient was entitled to claim credit of service tax actually paid.
JCT Ltd. v. CCE, Ludhiana 2016 (43) STR 467 (Tri.-Chan.)
78. The Tribunal held that where the issue of whether services were rendered or not was not objected to at the end of the service provider and the service tax paid had been accepted by the Department, credit on service tax paid could not be denied to the service recipient on the ground that no services were rendered.
Amara Raja Electronics Ltd. v. CCE 2016 (43) STR 601 (Tri. – Hyd.)
79. The Tribunal allowed CENVAT Credit on tax paid on rubber hoses and air receivers, being capital goods integral to the manufacturing process of Silicon Carbide and on payroll processing services as it was part of maintaining proper accounts for the upkeep of tax accounting.
Grindwell Nortion Ltd. v. CCE 2016 (43) STR 614 (Tri. – Hyd.)
80. The Tribunal held that service tax paid on common input services used for providing services in the State of Jammu and Kashmir and other parts of India was fully available as CENVAT credit, since services provided in Jammu and Kashmir were not liable to service tax u/s. 64 of Chapter V of the Finance Act, 1994, and were not exempted services per se. It held that Rule 6(2) would not apply to a situation where the service provider renders both taxable and non-taxable services as the law was silent in this regard and therefore it held that reversal of credit on common input services was unsustainable.
M/s. RamhollImi Soft Pvt. Ltd. v. CC, CE, & ST. Hyderabad-II – 2016-TIOL-1536-CESTAT-Hyd.
81. The Court held that the law of appeal as applicable at the time of initiation of proceedings was relevant and therefore, where the show-cause notice for initiating proceedings, were issued prior to 6-8-2014, the assessee was not liable to pay a mandatory deposit of 7.5 per cent of the tax demand for filing an appeal / stay application before the Tribunal as the amendment introducing such compliance was introduced by Finance (No. 2) Act, 2014, w.e.f. 6-8-2014.
Fifth Avenue Sourcing P. Ltd. v. CST (2015) 40 STR 71 (Mad.)
82. The Court held that the reasonable request of adjournment viz. medical grounds of Chartered Accountant, was unjustifiably refused by the Department and that the Petitioner was deprived of the opportunity of effectively participating in the adjudication proceedings which was in violation of principles of natural justice. Accordingly, the Court held that the writ filed was maintainable in spite of availability of alternative remedy. It observed that it would not have caused any serious prejudice to the department if the request for adjournment was accepted and that the Adjudicating Authority was in a hurry to conclude the proceedings as he did not want to show the notice as pending for over six years due to delay of the Department and therefore, passed the order on the last date before his retirement. Therefore, the order was set aside with a direction to resume adjudication proceedings.
CHL Limited v. Commissioner of Service Tax, Delhi 2016 (42) STR 420 (Del.)
83. The Court held that under Finance Act, 1994 an appeal against the order of CCE(A) in the matter of rebate of service tax could be filed before the Tribunal in terms of Section 86(2A) of the Finance Act, 1994 and provisions of Section 35B of Central Excise Act, which provided that no appeal could be entertained before the Tribunal against such order,would not be applicable in such cases.
CST v. Ambe International (2015) 40 S.T.R. 441 (Bom.).
84. The Court held that High Courts could reduce the amount of pre-deposit of 25 per cent as directed by the Tribunal on the grounds of financial difficulties of the assessee and direct them to pay pre-deposit equal to mandatory percentage viz. 7.5 per cent as prescribed in section 35F of Central Excise Act, 1944 even for appeals filed during the year 2012.
Maa Engineering v. Registrar, CESTAT, Kolkata – 2016(42) STR 425 (Ori.)
85. The Court held that application for condonation of delay was to be decided liberally and that substantial justice was to be preferred as against technical requirements unless delay was inordinate or not explained at all or is due to mala fide intentions or due to neglect / lethargy.
New Asian Engineers & Amp. v. Union of India – 2016 (43) STR 166 (Guj.)
86. The Court held that the Tribunal had the power and jurisdiction to restore the appeal on belated payment of pre-deposit on the basis of merits of the case, since pre-deposit requirement was merely procedural.
Classic Builders (Madras) Pvt. Ltd. v. CESTAT, Chennai – 2016 (42) STR 668 (Mad.)
Demand / Extended Period
87. Where the records of the appellant for the period 2003-06 were audited by the service tax department in 2006 during which no short payment was detected and then again in 2008 for the same period where the audit team had detected a short payment of service tax, pursuant to which a show-cause notice was issued invoking extended period of limitation seeking to recover the said short payment of tax, the Tribunal held that since no short payment was detected during the first audit conducted by the department, invocation of extended period of limitation for demanding service tax in respect of short payment detected during the second audit was not permissible.
Trans Engineers India Pvt. Ltd. v. Commissioner of C. Ex. 2015 (40) S.T.R. 490 (Tri.-Mum.)
88. Where the assessee disclosed the value of services on which it did not pay service tax as exempted services in the ST-3 returns, the Tribunal held that the charge of suppression of facts was not sustainable merely because they did not give the detailed description of exempted services especially when there is no such legal requirement and accordingly extended period of limitation could not be invoked.
Cellebrum Technologies Ltd. v. CCEx (2015) 40 STR 707 (Tri. – Del.)
89. The Court held that mere non-imposition of penalty was not a ground for non-invoking extended period of limitation and further held that, a new plea could not be raised before it for the first time.
AS Transport v. CESTAT – 2016 (42) STR 957 (Mad.)
90. The Tribunal held that service tax could not be demanded from a sub-contractor when the main contractor had discharged service tax on the same activity for the same period.
Vishesh Engineering Co v. CCE&ST 2016 (43) STR 232 (Tri. – Hyd.)
91. The Tribunal held that the extended period of limitation could not be invoked where the assessee had filed a writ before the High Court contesting the validity of section 66A which was admitted and the department, though aware of the writ, did not issue any protective demand notices, since the assessee could have said to have bona fide belief that the service tax was not payable and therefore extended period of limitation could not be invoked.
Inter Jewel Pvt. Ltd. v. CST (2015) 40 STR 759 (Tri.-Mum.)].
92. The Tribunal held that extended period and penalties could not be invoked/imposed on matters involving interpretational issues referred to the larger bench.
M/s. Shiel Autos v. Commissioner of Central Excise – 2016-TIOL-1982-CESTAT-All.
Import / Export of Services
93. The Tribunal held that investment advisory services provided to assessee’s clients located abroad in the form of reports and memoranda which were used by the clients to advise their own clients regarding investment opportunities in India qualified as ‘exports’ immaterial of how the assessee’s client utilised the reports prepared by the assessee. Further, since the assessee’s bank in India received Indian Rupees from an account of a bank situated in a foreign country (other than country of Asian Clearing Union or Nepal or Bhutan) which issued a Foreign Inward Remittance Certificate stating that they received foreign currency equivalent to INR, the remittance was held to be in foreign exchange especially considering the Foreign Exchange Management (Manner of Receipt and Payment) Regulations, 2000.
Mount Kellett Management (I) Pvt. Ltd. v. CST (2015) 40 STR 165 (Tri.-Mum.)
94. Where the appellant, a manufacturer and exporter of textile made-ups, engaged the services of an overseas commission agent for procurement of orders, the Tribunal held that the commission paid by the appellant to the overseas agents was not liable to service tax on reverse charge basis since the appellant was a textile industry unit and the commission paid by the appellant to the overseas agent for promoting export of its goods would be considered as an activity incidental or auxiliary to processing of textile goods which was exempt from payment of service tax under clause (d) of Notification No. 14/2004-ST dated 10-9-2004. Further, it held that even if tax was paid under reverse charge it would be entitled to refund under Notification No. 41/2007 – hence the demand would be revenue neutral.
Texyard International v. CCE (2015) 40 STR 322 (Tri.-Chen.)
95. The Tribunal held that the services provided by the appellant viz., management consultancy services such as providing reports on investment area, industries, companies, potential investment opportunities in India, feedback of performance of investment in India etc., to its group companies situated in Australia was in the nature of export of services as the Australian company, the sole recipient of the services, consumed these services outside India and used them for advising to its customers to make investment in India.
AMP Capital Advisors India Pvt. Ltd. v. CST (2015) 40 STR 577 (Tri.- Mum.).
96. The Tribunal held refund of unutilised CENVAT credit claimed under Notification
No. 27/2012 dated 18-6-2012 issued under Rule 5 of CENVAT Credit Rules, 2004 could not be denied to the appellant, an exporter of service, on the ground that he was not registered with the service tax department, where the revenue had not disputed the appellant’s eligibility to claim credit and also since there was no specific prohibition that refund would be granted only after registration of service provider.
Dorling Kindersley (I) Pvt. Ltd. v. CCE (2015) 40 STR 598 (Tri. – Del.).
97. The Tribunal held that the services provided by the appellant viz., identifying customers in India on behalf of foreign manufacturers and canvassing CDMA mobile phones qualified as export of services since they were provided on behalf of clients abroad.
Samsung India Electronics Pvt. Ltd. v. CCE – (42) STR 831 (Tri. – Del.)
98. The Tribunal held that the service provided by the assessee viz., production of programmes in Hindi and providing the same to its Honk Kong based entity for uplinking, constituted export of services since the services were delivered / provided from India to an overseas entity who used the services outside India. Further it held that since the assessee provided a certificate from a Hong Kong bank stating that the payment was made to the assessee in convertible foreign currency, the other condition for export of services was fulfilled.
CST v. Balaji Telefilms Ltd. 2016 (43) STR 98 (Tri. – Mum.)
99. The Tribunal held that where the appellant had earlier discharged its service tax liability in respect of Goods transport agency services by utilising CENVAT credit, but subsequently at the insistence of the Department paid the same in cash and suo motu took recredit in respect of the amounts paid earlier through CENVAT credit, the revenue could not object to such suo motu taking of credit as the revenue could not demand tax twice on the same transaction.
J. K. Lakshmi Cement Ltd. v. CCE (2015) 40 STR 618 (Tri.-Del.)
Penalty / Interest
100. Where the assessee paid service tax as a recipient of service after issuance of SCN but before the passing of the adjudication order, the Tribunal held that payment of service tax results ina revenue neutral situation since the credit is available to the assessee himself and no one else. Hence penalty u/s. 76, 77 and 78 were set aside.
Jain Irrigation Systems Ltd. v. CCE (2015) 40 STR 752 (Tri. – Mum.)
101. The Court held that the CIT(A) did not have the statutory power to condone the delay beyond 30 days. It held that the said provision was to be strictly construed and any other approach would make the statutory provision otiose.
Bengal Investment Ltd. v. AC (TARC) – 2016 (42) STR 817 (Cal)
102. The Tribunal in this case held that, in view of law settled by Apex Court in Singh Enterprises 2008 (221) LET 163 (SC), the Commissioner (Appeals) did not have the power to condone the delay beyond statutory period.
Sri Balaji Agency vs. CCE & ST, Trichy (42) STR 914 (Tri. – Chennai)
103. The Tribunal held that where services were received by the assessee from the Government of Andhra Pradesh and service tax was not paid on the payments made to the Government of Andhra Pradesh under reverse charge mechanism but Government of Andhra Pradesh had paid the tax, service tax could not be recovered again from the assessee. However, it held that penalty for contravention of provision was applicable, but noted that since there was no express penalty provision for contravention of making payment under reverse charge mechanism and that it was only initial period of introduction of new provisions of law, a lenient view was to be taken under section 80 of Finance Act. Consequently, it held that no penalty could be imposed on the assessee for non-payment of service tax on reverse charge basis, even though there was contravention of the provisions.
Kakinada Seaports Ltd. v. C.C.E., S.T. & Cus. (2015) 40 S.T.R. 509 (Tri. – Bang.).
104. The High Court held that the proviso to section 73(1) of FA, 1994 extending the limitation period from six months to five years had to be construed strictly and that the initial burden to prove that the situations visualised by the proviso existed was on the Department and only once the Department had brought material on record to prove that the appellant was guilty of any of those situations visualised by the proviso, would the burden would shift. It held that where the law required intention to evade payment of duty to be proved, then mere failure to pay duty without deliberate intention to avoid such payment, was not sufficient. Since, in the instant case, there was no intent to avoid payment of tax on the part of the assessee, the Court held that extended period of limitation would not be applicable.
Bordubi Engineering Works vs. UOI 2016 (42) STR 803 (Gau.)
105. The Apex Court held that section 80 of the Finance Act, 1994 envisages a complete waiver of penalty once reasonable cause of failure is established and the same could not be applied to reduce partially minimum penalties prescribed u/ss. 76 and 78 of Finance Act, 1994.
Commissioner of Service Tax, Mumbai vs. lark Chemicals P. Ltd. – 2016 (42) STR 401 (S.C.)
106. The Tribunal held that when the CENVAT credit of service tax paid on ECB services under reverse charge mechanism was available to the assessee itself, the situation being revenue neutral, the demand of interest and penalties on the said tax was liable to be set aside.
United Phosphorous Ltd. v. Commissioner of Service Tax, Mumbai – 2016-TIOL-1572-CESTAT-Mum.
107. The Tribunal held that there was no mandate in the statute for reversal of the CENVAT credit already availed in respect of output services provided, the consideration of which was not realised for which the assessee wrote off the receivable amount as bad debt and therefore, the assessee could not be directed to reverse proportionate CENVAT credit.
M/s. JAKG Communication Pvt. Ltd. v. Commissioner of Central Excise, Chennai-III – (2016-TIOL-1507-CESTAT-Mad
108. The Tribunal noted that section 11BB of Central Excise Act, 1944 is unambiguously clear that non-sanction of refund within three months of filing of claim would set the “interest clock” ticking and that mere pendency of any appellate/revisionary proceedings could not justify non-sanction of such refunds.
Raymond Ltd. v. Commissioner of Central Excise & Customs – 2016-TIOL-1974-CESTAT-Mum.
Refund and Rebate
109. The Tribunal held that the date of filing the refund claim electronically was to be considered for the purpose of reckoning the period of limitation of one year even though documents were submitted subsequently.
The Design Consortium v. CCE (2015) 40 STR 734 (Tri. – Del.)
110. The Tribunal held that denial of refund on the ground that the FIRC in case of exports was issued in the old name of the appellant, was not permissible.
Concurrent Tech India Pvt. Ltd. v. CST (2015) 40 STR 342 (Tri. – Bang.)
111. The Tribunal held that where the assessee had mistakenly paid service tax under the category of manpower recruitment services and subsequently filed a refund claim for the same, the Revenue was incorrect in rejecting the same on the ground that the assessee had wrongly paid the tax under the category of ‘Manpower recruitment agency service’ instead of paying it under the category of ‘Cargo handling service’, since the adjudicating authority had clearly held that service tax was not payable under the category of manpower recruitment agency service but did not give any finding as to why service tax was payable under the category of ‘cargo handling services’.
SharamSewa Associates v. CCE (2015) 40 STR 377 (Tri. – Del.).
112. The Court held that where the assessee had incorrectly paid service tax on ECI services which was made taxable subsequent to the payment of service tax and accordingly claimed refund on the same, the refund was to be granted as the service tax was paid erroneously and without the authority of law and therefore could not be retained by the Government. It further held that for refund of erroneous levy, statutory provisions prescribing limitations were not applicable.
GB Engineers v. UOI 2016 (43) STR 345 (Jhar.)
113. Where the assessee availed refund of accumulated credit availed during 2004 to 2006 in the year 2006 and failed to prove nexus of use of imports/input services with the manufacturing of products, the same was not allowable. It noted that while a one to one correlation of inputs with manufactured products may not be possible, the nexus was to be established, failing which, no refund could be granted.
Renfro India Pvt. Ltd. v. CCE 2016 (43) STR 385 (Tri. – Mum.)
114. The Tribunal held that where the assessee had borne service tax under the category of Technical Testing and Analysis Service on activities of supervision of weightment, sampling, container, stuffing analysis, it could not be denied refund on the same since the said activities were for the purpose of export of goods.
CCE v. Kriti Industries I Ltd 2016 (43) STR 443 (Tri. – Del.)
115. Where the assessee company amalgamated with another company w.e.f 1-4-2007 pursuant to the order of the High Court dated 26-5-2008 and claimed refund of service tax paid on royalty payment made to the transferor company during the period 1-4-2007 and 26-5-2008, the refund was to be granted since the services rendered by the transferor company became services rendered to self by way of the amalgamation.
Usha International Ltd. v. CST 2016 (43) STR 552 (Tri. – Del.)
116. The Tribunal held that the Department was incorrect in denying refund of accumulated CENVAT Credit on export of software services to SEZ claimed by the assessee on the ground that export of software services were not taxable prior to 16-5-2008, since the assessee was granted registration for activity of developing software for export as well as domestic clearance and was paying service tax on domestic services which had been accepted by the Department. It held that the Department could not have two stands, one for accepting payment of service tax and one for refusing grant of accumulated credit. It further held that refund of accumulated credit on account of export of software services to SEZ was permissible by relying on the Tribunal decision of Tata Consultancy Services.
Cognizant Technology Solutions v. CCE&ST(LTU) Chennai 2016 (43) STR 576 (Tri. – Chenn.)
117. The Tribunal held that where the assessee had filed the refund claim before a wrong jurisdictional authority, the period of time spent in pursuing the issue before the wrong authority had to be excluded for computation of limitation and the date of filing the refund claim was to be taken as the date on which the refund was filed before the wrong service tax jurisdictional authority.
Sahara Power Products v. CCE (2015) 40 STR 536 (Tri.- Bang.)
118. The Tribunal held that where the assessee exported scientific and technical consultancy service and claimed refund of accumulated CENVAT credit, the department could not reject refund on the ground that the services did not amount to export of service, since performance of service was within India, as even though some chemicals were provided by service recipient, service provided were not in relation to those materials to invoke bar in terms of Rule 4 of Place of Provision of Service Rules, 2012. Further, it held that service tax was destination based and therefore where the services were received abroad and the payment of which was remitted in foreign exchange, it was covered in export of service.
CCE v. Sai Life Sciences Ltd. 2016 (42) STR 882 (Tri. – Mum.)
119. The Tribunal held that for the purpose of claiming refund, the claimant had to file refund application claiming refund of both duty as well as interest amount before the expiry of one year from the relevant date.
Schenck Rotec India Ltd. v. CCE 2016 (42) STR 1066 (Tri. –
120. The Tribunal held that CENVAT credit though not a duty but was to be equated with duty since section 11B is made applicable to refund of CENVAT credit and therefore held that the relevant date for calculation of time limit of 1 year for filing refund claim would be the date of export invoice.
Paul Mason Consulting India (P) Ltd. vs. C.C.E. & S.T. Vadodara – 2016(42) STR 686 (Tri-. – Ahmd.)
121. The Tribunal held that irrespective of any circumstances whatsoever, if there was a delay in granting refund beyond three months from the filing thereof, the department was duty bound to grant the interest for the delayed period in sanctioning the refund under section 11BB of the Central Excise Act, 1944.
M/s. Red Hat India P. Ltd. v. Principal Commissioner, Service Tax, Pune. – 2016 – TIOL-1300-CESTAT-Mum
122. The Tribunal held that an appellate authority could not reject refund claim on grounds/issues which were not arising out of adjudication order. Further, it held that the refund claim filed by the assessee was not time barred as the time limit of one year for filing a refund claim was to be calculated from end of the quarter.
Indigo v. Commissioner of Service Tax – (2016) 69 taxmann.com 199 (Mumbai-CESTAT)
123. The Tribunal dismissed the contention of the assessee that the time limit of one year as prescribed u/s. 11B of the Central Excise Act, 1994 was not applicable to the instant case since the service to which the refund claim related was not liable for service tax and held that refund could not be granted if the claim was filed beyond time limit set out in section 11B, irrespective of whether such refund claim pertained to amount mistakenly or correctly paid as duty/tax.
Giriraj Construction v. Commissioner of Central Excise& Customs (2016) 70 taxmann.com 303 (Mumbai-CESTAT)
Benzy Tours & Travels Pvt. Ltd. v. CST 2016 (43) STR. 625 (Tri. – Mum.)
124. Where the assessee (service recipient) was incorrectly charged service tax on transfer of immovable property by the vendor of such property and consequently filed a refund claim of the service tax paid, the Tribunal held that the Department was incorrect in rejecting the refund claim on the ground that the assessee had not provided any proof of deposit of service tax by the service provider with the Government, since it was the duty of the Department and not the service recipient to determine whether or not the payment was made to the Government.
Sumeet C. Tholle and Prathima S. Tholle v. C.C.E & C – 2016 (43) STR 110 (Tri.-Mum.)
125. The Tribunal held that where the assessee filed a refund claim which was returned by the Department on account of insufficiency of supporting evidence, in response of which the assessee re-submitted the claim after a lapse of time, the Department could not reject the refund claim on the ground that it was time barred as the first claim filed, though deficient in details was filed within the time limit.
Repro India Ltd. v. CCE – 2016 (43) STR 203 (Tri. – Mum.)
126. The Tribunal held that where the assessee adjusted excess service tax paid towards its subsequent service tax liability, the adjustment could not be denied by the Department merely on the ground that was in infringement of the prescribed procedure since the infringement was not serious enough to deny substantial benefit.
L&T Sargent & Lundy Ltd. v. CCE&ST – 2016 (43) STR 249 (Tri – Ahmd.)
127. The Court held that since the assessee was exempt from payment of service tax and the Department was not able to show any liability of the assessee which was required to be adjusted against CENVAT Credit, the grant of refund claimed by the assessee was sustainable. Further, it held that there was no rule or statutory provision which makes registration mandatory for availing and utilising CENVAT Credit.
CST v. Tavant Technologies India P. Ltd. 2016 (43) STR 57 (Kar.)
128. The Tribunal held that where the appellant received commission from Financial Institutions and paid service tax under BSS but subsequently claimed refund on the ground that the said commission was not taxable under BSS but under BAS, according to a subsequent Tribunal decision, the assessee’s claim of refund was not valid as the commission was taxable per se and since the assessee had classified the said services under BSS as per its understanding and paid tax on it, it could not change its stand subsequently.
Mahesh Auto v. CCE 2016 (43) STR 437 (Tri. – Mum.)
129. The Tribunal held that where the incidence of service tax has been borne by the service recipient appellant itself, the refund claim could very well be lodged by him claiming refund of excess service tax paid to the supplier of goods which was ultimately deposited into the Government Exchequer.
Chambal Fertilizers & Chemicals Ltd. v. Commissioner of Central Excise, Jaipur – (2016) 69 taxmann.com 329 (New Delhi – CESTAT)
Service of Notice / Order
Show Cause Notice
130. The Court held that a SCN issued without providing details of unpaid service tax on GTA services which is proposed to be recovered was merely of general nature and therefore liable to be set aside.
CCE v. Gujarat Container Ltd. 2016 (43) STR 90 (Guj.)
131. The Tribunal held that the SCN for recovery of erroneous refund has to be in compliance with section 73 including the time limit prescribed u/s. 73.
CCE. v. Reliance Communications Ltd. (2015) 40 STR 260 (Tri. – Mum.)
132. The Court held that when a Show Cause Notice was issued on the basis of allegation of “suppression of facts” the department ought to specify particulars of allegedly suppressed facts, otherwise such SCN issued by
invoking extended period of limitation was bad in law.
Simplex Infrastructures Ltd. v. Commissioner of Service Tax, Kolkata (2016) 69 taxman.com 97 (Calcutta HC)
GRR Logistics P. Ltd. v. Commissioner of Service Tax, Chennai 2016-TIOL-1408-CESTAT-Mad.
133. The Tribunal held that where the Revenue had not filed any documentary evidence to prove that the assessee had unduly enriched itself, the rectification application filed by it contending that the order of the Tribunal allowing refund of service tax paid on export of services was erroneous on the face of the record, since it did not consider the application of principles of unjust enrichment, was not valid. Even on merits, the Tribunal held that unjust enrichment did not apply in respect of exports. In view of the above, the Tribunal dismissed the Rectification of Mistake Application of the Revenue.
CST v. Vodafone (India) Ltd. (2015) 40 S.T.R. 699 (Tri. – Mum.).
134. The Tribunal held that where the appellant had paid an excess service tax in the quarter ended December 2009 and adjusted the same against its subsequent service tax liabilities for the quarter ended March 2010, the Revenue was incorrect in allowing credit of tax only to the extent of Rs. 1 lakh under Rule 6(4A) of the Service Tax Rules and denying the adjustment under Rule 6(1A) on the ground that the appellant had not intimated payment of such service tax in advance to the Superintendent within a period of 15 days from such payment of tax. Even though the appellant had not given any specific intimation to the Superintendent as required under Rule 6(1A), since the appellant had intimated the details of such advance payments and its subsequent adjustment thereof in its ST-3 returns which was substantially in compliance with therequirement of Rule 6(1A).
Garima Associates v. CC&CEx(2015) 40 STR 247 (Tri.-Mum.).
135. The Court held that where the Tribunal relied on a judgment passed subsequent to the hearing of the case before it, the Tribunal ought to have given an opportunity of hearing to the petitioner before deciding the matter.
Garden Silk Mills Ltd. (PFY Division) v. Union of India (2015) 40 STR 630 (Guj.)
136. The Court held that Rules, being subordinate legislation had to conform to the provisions of the main statute and therefore held that audit, being a specialised function was different from the verification of record and could not be carried out by departmental officers. It further held that verification of record could only be carried out by officers authorised to assess returns or conduct special audit / investigation for purpose of adjudication.
Mega Cabs Pvt. Ltd. v. UOI – 2016 (43) STR 67 (Del.)
137. The Tribunal held that when failure to make 50% payment within time limit prescribed under Voluntary Compliance Encouragement Scheme was for the reasons not attributable to declarant but for the system error, benefit of the scheme cannot be denied.
CCE v. Cityland Associates – (2016) 69 taxmann.com 176 (Mumbai-CESTAT)
138. The Court held that unless investigation was completed and prosecution was launched, coercive measures including arrest could not be taken by Department. It held that arrest under Finance Act, 1994 could only arise when investigation was completed and prosecution was launched. Further, there was no question of recovery by coercive means unless SCN was issued and opportunity of being heard was given to the assessee post which a reasoned adjudication order was passed.
Cleartrip Private Ltd. v. Union of India – 2016 (42) STR 948 (Bom.)
139. The Tribunal held that the ancillary and incidental activities of pouring, pumping and laying of concrete, entirely being related to the sale of RMC, without any service element was not liable to service tax.
Vikram R. M. C. (P) Ltd. v. CST, Delhi 2016 (42) STR 866 (Tri.-Del.)
140. The Court held that even if some part of the composite transaction (restaurant service) involved rendering of service, there should be no difficulty in recognising the power of the Union to bring to tax the service portion and noted that since the Parliament had made legal position explicit by taxing the service portion of a composite contract of supply of food and drinks the same had sound constitutional basis and therefore section 65(105)((zzzzv) and section 66E(i) were Constitutionally valid. However, it was pointed out that if an assessee was able to demonstrate on the basis of accounts and records that the value of service was different than that provided in the Rule, the assessing authority was obliged to consider such submission and give a decision thereto.
Federation of Hotels and Restaurants Association of India and Ors. v. Union of India and Ors. – 2016-TIOL-1730-HC-Del-ST
*Assisted by CA TUSHAR HATHIRAMANI