A. Classification of Service
Banking & Other Financial Service
1. The Tribunal held that where the assessee, a manufacturer of industrial gases, had supplied / loaned out insulated storage tanks to its customers for use, for a period of 3 years and for a fixed sum payable per month, it could not classified as financial leasing services since the assessee was not a banking company or financial institution or a commercial concern engaged in providing banking or other financial services.
Inox Air Products Ltd. v. CCE – (2015) 37 STR 1024 (Tri. Mum.)
2. The Tribunal held that the assessee a stock broker registered with SEBI, dealing in shares, bonds and securities on behalf of the client could not be considered as a financial institution liable to pay service tax on the said activities under the category of ‘banking and other financial services.
Parag Parikh Financial Advisory Services Ltd. v. C.S.T. Mumbai (2015) 38 STR 490 (Tri.-Mum.)
3. The Tribunal held that commitment charges levied by the banks on the customers who fail to draw their sanctioned loan is to compensate itself for the loss of interest that could have been earned by it if the customer had drawn money from the loan account and therefore is integrally connected with the lending services and hence liable for service tax
Punjab National Bank v. CCE & ST (2015) 38 STR 498 (Tri.-Del.)
Business Auxiliary Services
4. The Tribunal held that the process of grinding wheat into wheat products is in the nature of manufacture, not liable to service tax under the category Business Auxiliary Services.
Jayakrishna Flour Mills (P) Ltd v. CCE – (2015) 37 STR 1079
5. The Tribunal held that additional handling charges and facilitation charges charged to the buyer for sale of naphtha and furnace oil imported by the assessee was a transaction of sale of goods on principal to principal basis and hence demand of service tax on the said charges received under the category of business auxiliary services was unsustainable
Indian Oil Corporation Ltd. v. CCE (2015) 38 STR 501 (Tri.-Mum.)
6. The Tribunal held that the repair and maintenance services provided by the assessee to Modi Xerox pursuant to the service agreement with M/s. Modi Xerox in respect of the Modi Xerox machines located at the customer’s premises were services on behalf of client (i.e. Modi Xerox) and hence the same would be taxable only w.e.f. 10-9-2004 under the category of business auxiliary services (provision of service on behalf of the client) and not under Repairs and Maintenance Service
Kunjal Enterprises v. CST (2015) 38 STR 518(Tri.-Mum.)
Cargo Handling Service
7. The Tribunal held that the activity of loading and unloading of coal into tippers by deploying pay-loaders at the mining site was liable to service tax under the category of Cargo Handling Services.
Shreem Coal Carriers Pvt Ltd v. CCE – (2015) 37 STR 1067 (Tri.-Mum.)
8. The Tribunal held that shipping charges collected for transportation of imported goods from a mother vessel to a jetty was part of the transaction value of imported goods for Customs Duty purposes and therefore could not be classified as Cargo Handling services liable to service tax. It further held that transportation of goods along the cost would be chargeable to service tax under the category of cargo handling services but since the goods were fertilizers the said service would be exempt from service tax under Notification No. 30 / 2009 – ST.
United Shippers Ltd v. CCE – (2015) 37 STR 1043 (Tri. – Mumbai)
Club or Association Service
9. The Tribunal held that the promotion of cricket was not a public service and could not be considered as an activity of charitable nature, therefore requiring the assessee to pay service tax on the subscription charges received from its members, under the category of Club or Association Services.
Vidharbha Cricket Association v. CCE – (2015) 38 STR 99 (Tri. Mum.)
10. The High Court held that no service tax was leviable on the assessee, a co-operative society engaged in maintaining common effluent treatment plants (‘CETP’), for providing the facility of CETP under the category of Club or Association service as the relevant provisions i.e. Section 65(105)(zzze) had been held to be unconstitutional in Sports Club of Gujarat v. UOI (2013) 37 STR 961 (Guj.).
Green Environment Services Co-op Society Ltd v. UOI – (2015) 37 STR 961 (Guj.)
11. The Tribunal held that services rendered by member’s club to its members or by co-operative societies to its members would not be liable for service tax under the category of club or association services on the principle of mutuality
Matunga Gymkhana v. CST (2015) 38 STR 407 (Tri.-Mumbai)
12. The Tribunal held that considering the nature of activities carried out, the assessee organisations (FICCI & ECSEPC) were held to be having public service objectives, charitable in nature and hence were to be excluded from the definition of Club or Association Service. Further, on application of the principle of mutuality, services provided by the assessee to their respective members would not fall within the ambit of “Club or Association” service nor would the consideration whether by way of subscription/fee or otherwise received be exigible to service tax. The Tribunal held that one of the assessees (ECSEPC) was an organisation formed to effectuate the policy under the Foreign Trade (Development and Regulation) Act, 1992, and also being an Export Promotion Council falling within the ambit of the Foreign Trade Policy, and therefore was outside the purview of “Club or Association” as defined in 65(25a) as it excludes any body established or constituted by or under any law.
Federation of Indian Chambers of Commerce & Industry v. CST (2015) 38 STR 529 (Tri.-Del.)
Construction Services
13. The Tribunal held that the activity of fabrication of structure at site for clients, amounts to manufacture and therefore is not liable to service tax.
Plus Tech Engineering (P) Ltd. v. CCE, Surat 2015 (39) STR 454 (Tri.-Ahmd.)
Commercial Coaching & Training Services
14. The Tribunal held that providing training for speaking English could not be considered as vocational training and therefore would not be exempt from service tax under Notification No. 9 / 2003 or Notification No. 24 / 2004.
Ulhas Vasant Bapat v. CCE – (2015) 37 STR 1034 (Tri.-Mum.)
15. The Tribunal held that coaching in English language enables trainee to seek employment or undertake self-employment and therefore is entitled for benefit of Notification No. 9/2003-ST and that there was no mention of any foreign or Indian language in the said notification. It also held that, fees collected and services rendered up to 1-7-2003 do not attract service tax.
Darshan English Classes v. CCE&ST, Rajkot 2015 (39) STR 167 (Tri.-Ahmd.)
Intellectual Property Service
16. The Tribunal held that for a transfer of IPR only rights which are registered with trademark/patent authorities to be considered. It also held that since the issue of charging service tax as reverse charge under section 66A of FA, 1994 was under litigation before various Courts, the extended period of limitation cannot be invoked.
Rochem Separation Systems (India) P. Ltd. v. CST, Mumbai-I 2015 (39) STR 112 (Tri.-Mumbai)
Management Consultancy Service
17. The Tribunal held that the assessee rendering general support services (of infrastructural/utility facilities, staff, fire – fighting equipments etc.); operational services (assistance for waste disposal & use of sewerage system); and secretarial services was not liable for service tax under the category of “management consultancy” services.
Konkan Synthetic Fibres v. CCE (2015) 38 STR 403 (Tri.-Mum.)
Manpower recruitment and supply services
18. The Tribunal held that the assessee who had entered into contracts with sugar factories for providing services such as harvesting cane from the fields, loading them in the vehicles and delivering them at the factory site etc. cannot be said to be engaged in manpower recruitment and supply services
CCE v. Godavari Khore Cane Transport Co. Ltd. (2015) 38 STR 468 (Bom.)
Mandap Keeper Services
19. The Tribunal held that services rendered in relation to use of mandap for conducting marriages would be liable for service tax under the category of Mandap Keeper Services since marriage is a social function and not a religious function.
CCE v. Central Panchayat – (2015) 37 STR 1038 (Tri – Mum)
20. The Tribunal held that stalls allotted to different persons for selling toys, garlands, flowers, foods etc. is not covered under the scope of manda-keeper’s service.
Shri Chatushringi Seva Samittee v. CCE, Pune-III 2015 (39) STR 169 (Tri.-Mumbai)
Manpower Supply and Recruitment Services
21. The Tribunal held that charges levied on the basis of activities and material involved and not on the basis of number / nature or scope of manpower cannot fall under the category of Manpower Supply and Recruitment Services.
CCE v. M/s Shri K.M. Sharma – (2015-TIOL-1602-CESTAT-MUM)
Mining Services
22. The Tribunal held that the activity of mining of sand from river beds was liable for service tax under the category of Mining Services.
Shreem Coal Carriers P Ltd. v. CCE – (2015) 37 STR 1067 (Tri. – Mum.)
Online Information and Data Base Access or Retrieval Service
23. The Tribunal held that the large collection of photographs stored by the assessee may be copyrightable but providing access to said photographs and retrieval thereof by the client for a consideration is liable to service tax under Online Information and Data Base Access or Retrieval Service.
Photo-library India P. Ltd. v. CST, Mumbai 2015 (39) STR 637 (Tri.-Mumbai)
Outdoor Caterer Services
24. The Tribunal held that the meals prepared by the assessee were prepared at its own premises and simply supplied at pre-determined rates without it serving the meals in any manner and therefore would not get covered under the definition of outdoor catering services. The Tribunal held that the service covered under the ambit of service tax was outdoor caterer and not mere caterer.
M/s. Ambedkar Institute of Hotel Management v. CST – 2015-TIOL-1593-CESTAT-DEL
Port Services
25. The Tribunal held that only services rendered by a port in relation to vessel / goods would be liable for service tax under the category of Port Services and since the compensation received by the assessee was for granting permission to lay and use submarine pipelines within the port area it would be in the form of lease rental and not port services as it did not have control over the goods nor was it required to maintain or repair the pipeline.
CST v. Traffic Manager, Mumbai Post Trust (2015) 37 STR 993 (Tri. – Mum.)
26. The Supreme Court held that the assessee, a statutory body, who had granted licence for the construction and use of jetty was not liable to service tax under the category of Port Services as it had not rendered any services to the licensee, since the licensee had to keep the jetty in good condition capable of enabling vessels to berth alongside it to load and unload goods. It further held that the rebate granted to licensee was neither lease rent nor license fees as separate license fees was payable under agreement.
CCE, Bhavnagar v.. Gujarat Maritime Board (GMB), Jafrabad 2015 (39) STR 529 (SC)
Renting of Immovable Property
27. The Tribunal held that a contract between parties can prescribe as to who would ultimately bear the burden of service tax imposed and since as per lease deed in the present case, lessee is liable for payment of all taxes and service tax being an indirect tax the service tax liability shall be on the lessee.
Satya Developers Pvt.Ltd. v. Pearey Lal Bhawan Association 2015 (39) STR 429 (Del.)
28. The Tribunal held that as per section 65(105)(zzzz) of FA, 1994 service provided in relation to renting of immovable property for use in the course of or in furtherance of business or commerce is a taxable service and that the ambit of taxable service is neither restricted to short term lease nor are leases identified or classified in terms of their duration and therefore long term leases cannot be said to be outside the purview of taxable service of renting of immovable property.
New Okhla Industrial Development Authorities v. CCEC&ST. Noida 2015 (39) STR 443 (Tri.-Del.)
Sale of space for advertisement service
29. The Tribunal held that the product published by the assessee consisting of sheets of printed materials with table/charts therein, could be brought within the meaning of the term ‘book’ under inclusive definition of section 1(1) of Press and Registration of Books Act, 1867 and hence covered by the term “Print Media” and therefore the definition of “Sale of space for advertisement” would not cover the said product.
CCE, Nagpur v. Media World Enterprise 2015 (39) STR 258 (Tri.-Mumbai)
Scientific and Technical Consultancy Service
30. The Tribunal held that the activity of locating of mineral deposits and preparing detailed reports are in the nature of survey and exploration of mineral services liable for service tax only w.e.f. 10-9-2004 and not prior to that date under the category of scientific or technical consultancy services and that the grant in aid received from the Government would not be liable for service tax since it was only a reimbursement of actual expenses incurred and not in the nature of fees for services and considering the fact that the exploration reports were kept by the assessee with itself and not given to the Government.
Mineral Exploration Corporation Ltd. v. CCE (2015) 38 STR 421 (Tri.-Mum.)
Sponsorship Service
31. The Tribunal held that where the assessee had entered into a contract for sponsoring a cricket team it would not be liable to pay service tax under reverse charge mechanism on the sponsorship services since the sponsored team had paid service tax on the transaction under the category of business auxiliary services as a service provider and hence service tax cannot be demanded on the same transaction under the category of sponsorship services from the service recipient and that sponsoring the cricket team would not be covered within the sponsorship services.
Coca Cola India Pvt. Ltd. v. CST (2015) 38 STR 497 (Tri.-Del.)
32. The Tribunal held that sponsorship of IPL cricket tournament is in the nature of sponsorship of a sporting event and therefore would not be liable for service tax under the category of Sponsorship Services (at the relevant time)
Citibank NA. v. CST (2015) 38 STR 520 (Tri.-Mumbai)
Supply of Tangible goods Service
33. The Tribunal held that the mere activity of renting of bullock-cart without bullocks, wherein the possession and control over the cart did not lie with the service provider does not come within the purview of supply of tangible goods.
Bhima SSL Ltd. v. CCE&ST. Pune-III 2015 (39) STR 440 (Tri.-Mumbai)
Technical Inspection and Certification service
34. The Tribunal held that assessee’s activities of carrying out standard check of the vehicle for any manufacturing defects therein and carrying out rectification thereof on the basis of the vehicle data sheet provided by the manufacturer of vehicles would not be liable for service tax under the category of ‘technical inspection and certification’ services since the definition of ‘technical inspection and certification’ would not mean any check on functionality but would refer to checking the same as per any standards laid down in a statute or guidelines
Antony Garages Pvt. Ltd. v. CCE (2015) 38 STR 49 (Tri.–Mum.)
Tour Operator’s Service
35. The Tribunal held that the assessee, engaged in the business of providing buses to various companies for transporting their employees from designated spots to the company and back on contract basis, the pickup and drop schedule being determined by the company, could not be liable for service tax under the category of ‘tour operator services’ up to period ending 10-9-2004 since the buses used for transportation were not tourist vehicle but only contract carriage buses and the assessee was also not holding any tourist permit; and for the period post 10-9-2004 due to the aforesaid reason as well as the fact that the assessee was not engaged in planning, scheduling organising of tours.
Capricorn Transways Pvt. Ltd. v. CCE (2015) 37 STR 1027 (Tri–Mumbai)
Transport of Goods Service / Transmission of Power
36. The Tribunal held that the assessee who had had undertaken the activity transportation of hazardous waste through pipeline for disposal was not liable to service tax under the category of transportation of goods as the term ‘goods’ under the service tax law means goods as per Sale of Goods Act, 1930 (every movable property which can fetch a price would be considered as goods) and the waste effluent transported by the assessee through pipelines was not to be purchased by anyone and therefore could not be considered as goods.
Gujarat State Fertilizers and Chemicals Ltd. v. CCE (2015) 37 STR 1076 (Tri.–Ahmd.)
37. The Tribunal in this case held that, all services relating to transmission and distribution of power were exempt under Notification No. 45/2010-ST for the period prior to 26-2-2010, hence demand raised was unsustainable.
J. C. Electricals v. CCE, Mangalore 2015 (39) STR 131(Tri.-Bang.)
Works contract Services
38. The Tribunal held that where the goods involved as a part of the service contracts are subjected to the levy of VAT / Sales Tax, the classification of service under the category of works contract services was proper and accordingly the assessee was entitled to payment of service tax under the works contract composition scheme
U. B. Engineering Ltd. v. CCE (2015) 37 STR 999 (Tri.–Mumbai)
39. The Tribunal held that where the construction services rendered by the assessee were more specifically classifiable under the category of “works contract services”, though the assessee had paid service tax under the category of “construction of complex services” or “commercial or industrial construction services”, the reclassification of the services under the new category of service was permissible but the assessee would not be eligible to the benefit of payment of service tax under the composition scheme in view of the Supreme Court decision in Nagarjuna Construction Company Ltd. vs. Government of India (2012) 28 STR561 (S.C.), however the benefit of Rule 2A of Valuation Rules would be available. Ahluwalia Contracts (India) Ltd. v. CST (2015) 38 STR 38 (Tri.–Del.)
B. Valuation
40. The Tribunal held that the value of electricity supplied by the assessee’s customer for operation of the air separation plant was not includible in the value of services received by the assessee who provided its customers operation and maintenance services as the assessee had not benefited from the supply of electricity since it was consumed in the manufacture of oxygen by the assessee’s client and not by it.
Inox Air Products v. CCE (2015) 38 STR 90 (Tri.–Mum.)
41. The Tribunal held that the value of free material supplied by the customer for commercial or industrial construction service is not includible in the value of taxable service following Larger Bench decision in Bhayana Builders (P) Ltd (2013) 32 STR 49 (LB)
Hindustan Steel Works Construction Co. Ltd. v. CCE (2015) 37 STR 1022 (Tri.–Del.)
42. The Court held that since the assessee had shown the value of consumables like transformer oils, components and parts separately in its invoices and paid VAT on that, the same was excludible from the value of taxable service under Notification No. 12/2003-ST dated 20-6-2003.
CCE v. Mahendra Engineering Ltd. (2015)38 STR 233 (All)
43. The Tribunal held that since the assessee for the repairs of transformers invoices disclosed value of goods [consumables like transformers oil, component parts like HV/LV coils] and service separately and on which VAT/sales tax was paid by it the repair contract would have to be treated as split contract for sale of goods and provision of service and service tax could be charged only on service portion, more so since the Rule 5(1) had been struck down as unconstitutional
Samtech Industries v. CCE (2015) 38 STR 240 (Tri.-Del.)
44. The Tribunal held that the inclusion of Reimbursements in the value of taxable services rendered by Customs House Agents on the grounds that the conditions prescribed for the exclusion from the value of taxable services under Rule 5(2) of the Valuation Rules had not been satisfied is incorrect since Rule 5(1) of the said Valuation Rules had been struck down as unconstitutional
Aashita International Ltd. v. CST (2015) 38 STR 246 (Tri.-Ahmd.)
45. The Tribunal held that incentive is a receipt for appreciation of performance of service provided and since it is not known as to whether such incentive would be received or not while providing the taxable service, the same would not be liable to service tax
Oswal Cable Products v. CST (2015) 38 STR 437 (Tri.-Del.)
46. The Tribunal held that in absence of any documentary evidence to show that amount received by the assessee from the service recipient was inclusive of service tax, cum tax benefit cannot be granted
CCE v. Rudra Galaxy Channel Ltd. (2015)38 STR 445 (Tri.-Mum.)
47. The Tribunal held that the service tax demand of Rs. 4.62 crores under Share Transfer Agency service levied by including the value of reimbursable expenses (on actual basis) viz. postage and other expenses incurred by the appellant in the taxable value was not sustainable since ‘Postage’ is in the nature of a duty/tax charged under the Indian Post Office Act, 1898 and service tax cannot be levied on an amount charged as duty/tax since the same is not consideration for rendering any service and that the reimbursement of postage and cost incurred towards stationery was recovered from the service receiver on actual basis by the appellant in the capacity as a pure agent and hence not includible in the taxable value u/s. 67 and that Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 has been declared as ultra vires
Link Intime India Pvt. Ltd. v. CCE (2015) 38 STR 705 (Tri.-Mumbai)
48. The Tribunal in this case held that as per explanation 1(viii) to Section 67 of FA, 1994 read with CBEC Circular No. 80/10/2004-ST, interest amount is not includible in gross value of services provided during period involved. Further, in view of Tribunal decision in ART Leasing Ltd. 2007 (8) STR 162 (Tri.-Bang.) rate of service tax prevailing on date on which contract entered was applicable.
Jaylaxmi Credit Company Ltd. v. CCE&ST, Daman 2015 (39) STR 164 (Tri.-Ahmd.)
49. The Tribunal held that only gross value of taxable services are taxable under FA, 1994 and margin of profit is a subject matter for Income Tax department thereby dismissing the contention of the department to raise demand of service tax on margin of profit of Bank arising out of foreign currency deals
SBI Commercial Branch v. CCE, Jaipur 2015 (39) STR 307 (Tri.-Del.)
C. CENVAT Credit
50. The High Court held that utilisation of CENVAT credit for payment of service tax as recipient of Goods Transport Agency services is permissible.
CCE & Customs v. Panchmahal Steel Ltd. (2015) 37 STR 965 (Guj.)
51. The Supreme Court held that since the transit Insurance of induction furnace and transformer was used indirectly in relation to the manufacture of the final products CENVAT credit thereon would be admissible.
UOI v. Raipur Rototcast Ltd. (2015) 37 STR 978
52. The Tribunal held that credit of service tax paid on Rent-a-Cab services used for providing transportation facility to customers, air travel service availed for business travel of partners and employees and rent of office premises was admissible since it is connected to business of manufacture.
Nash Industries v. CST (2015) 37 STR 1060 (Tri.–Bang.)
53. The Tribunal held that CENVAT credit of service tax paid on manpower recruitment or supply agency services availed in respect of personnel employed for maintaining the occupational health centre at the factory which was required to be maintained mandatorily under the Factories Act and on personnel recruited for project office and corporate office was admissible as was related to manufacture of final product / business of the assessee.
Binani Cement Ltd. v. CCE (2015) 37 STR 1071 (Tri.–Del.)
54. The Tribunal held that credit of service tax paid on consulting engineering services availed for construction of railway sidings which were used for transportation of coal for the captive power plant in the factory is admissible since the said services were covered under the expression ‘services in relation to procurement of inputs’ and was related to the manufacturing business of assessee.
RSWM Ltd. v. CCE (2015) 37 STR 1074 (Tri.–Del.)
55. The Tribunal held that the assessee, a manufacturer and a provider of port services, was permitted to utilize the CENVAT credit availed on port services for the purpose of discharging its excise duty liability Rule 3 of the Service Tax Credit Rules permitted taking of CENVAT credit on input services falling within the same category of output services and Rule 11 of the CENVAT Credit Rules, 2004 permitted utilization of unutilised balance of service tax credit availed under the Service Tax Credit Rules, 2002 for payment of duty liability under the CENVAT Credit Rules, 2004.
Welspun Maxsteel Ltd. v. CCE (2015) 37 STR 1081 (Tri.–Mumbai)
56. The Tribunal held that the credit of service tax paid on marine insurance services received in the course of exports of goods was admissible where all the particulars required to be mentioned u/r. 9(2) of CENVAT Credit Rules, 2004 were available on the insurance policy.
Gobind Sugar Mills Ltd. v. CCE&ST (2015) 39 STR 68 (Tri.–Del.)
57. The Tribunal held that the credit of service tax paid on setting up of factory premises would be admissible.
Liugong India Pvt. Ltd. v. CCE (2015) 38 STR 96 (Tri.–Del.)
58. The Tribunal held that where the assessee was engaged in providing the output service of commercial training and coaching, credit of service tax paid on brokerage for finding accommodation for faculties was admissible since provision of training services was not possible without availability of faculty
Tata Management Training Centre (2015) 38 STR 157 (Tri.–Mumbai)
59. The Tribunal held that CENVAT Credit of any input services used for providing output services which are exported is eligible for refund under Notification No. 5/2006-C.E. (N.T.). Further there was no restriction in the CENVAT credit rules for availing credit before registration is granted.
CST v. J. P. Morgan Services India Pvt. Ltd. (2015) 38 STR 410 (Tri.-Mumbai)
60. The Tribunal held that Manpower supply services used for cleaning the yard within the sugar factory so as to keep the factory premises clean in compliance with the mandatory requirement under Section 11 of the Factories Act, weighment of sugarcane and its unloading at the factory being an activity in relation to manufacture of sugar and cane area survey and sugarcane development by educating the farmers to ensure supply of good quality sugar cane was admissible as input credit.
Mawana Sugars Ltd. v. CCE&ST (2015) 38 STR 424(Tri.-Del.)
61. The Tribunal held that where CENVAT credit was taken but reversed without utilisation it did not attract interest liability
Oswal Cable Products v. CST (2015) 38 STR 437 (Tri.-Del.)
62. The Tribunal held that the assessee had by paying service tax on exempted services foregone the exemption under Notification No. 4/2004 and hence no credit was required to be reversed by it. Further there was subsequent retrospective amendment in credit rules by inserting Rule 6(6A) which clearly stated that there was no need to reverse credit in respect of services provided to SEZ.
Link Intime India Pvt. Ltd. v. CST (2015) 38 STR 506 (Tri.-Mum.)
63. The Tribunal held that Financial advisory services availed for making available finances to meet working capital requirement is in the nature of financing is covered within the definition of input services.
CCE v. GMR Industries Ltd. (2015) 38 STR 509 (Tri.-Bang.)
64. The Tribunal held that where the assessee had not charged service tax on two of its invoices it could be presumed that the assessee had rendered exempted services and hence was not required to reverse CENVAT credit.
Globe Ground India Pvt. Ltd. v. CCE&ST (2015) 38 STR 510 (Tri.-Del.)]
65. The Tribunal held that CENVAT credit on security and maintenance services availed at the residence of the Managing Director did not have any nexus with the output service provided by the assessee and hence credit thereon is not admissible.
Globe Ground India Pvt. Ltd. v. CCE&ST (2015) 38 STR 510 (Tri.-Del)]
66. The Tribunal held that CENVAT credit on chassis of motor vehicle which were converted by assessee into water carts and toilet carts to be used in providing airport services could be denied on the ground that the carts were not registered under Motor Vehicles Act and therefore would not be considered as capital goods.
Globe Ground India Pvt. Ltd. v. CCE&ST (2015) 38 STR 510 (Tri.-Del)
67. The Tribunal held that credit of service tax paid on travel agents services availed for travelling of company officials for procurement of raw materials and marketing of goods was admissible
Indswift Laboratories Ltd. v. CCE (2015) 38 STR 522 (Tri.-Del.)
68. The Tribunal held that credit of service tax paid on technical knowhow services acquired by the assessee for producing new products was admissible after the payment has been made for the value of input service. The same could be denied on the ground that the credit should be availed only when the commercial production of the product has commenced.
Indswift Laboratories Ltd. v. CCE (2015) 38 STR 522 (Tri.-Del.)
69. The Tribunal held that where there is no dispute regarding consumption of input services and payment of service tax thereon, credit would be admissible even if the invoices are not in the name of assessee’s unit but in the name of its head office.
CCE & ST v. Dayalal Meghji and Company (2015) 38 STR 557 (Tri.-Del.)
70. The Tribunal held that CENVAT credit of service tax paid on input services availed by the job worker in respect of goods cleared for the principal manufacturer without payment of duty is admissible in view of the Larger Bench decision in Aurangabad Auto Engg. Pvt. Ltd. v. CCE 2011 – TIOL – 1010 – CESTAT Mum
Prerna Fine Chem Pvt. Ltd. v. CCE (2015) 38 STR 693 (Tri.-Mum.)
71. Where the appellant, a manufacturer of ‘concentrates’ used in manufacture of ‘aerated water’, had procured services of advertising and marketing for promotion of ‘aerated water’ that was not manufactured by them, the Tribunal following the propositions laid by the High Court in the appellant’s own case in Coca Cola India Pvt. Ltd. v. Commissioner (2009) 15 STR 657 (Bom.) for an earlier period, held that denial of CENVAT credit on advertisement and marketing services was incorrect on the ground that these services would fall within the ambit of ‘input service’ given under Rule 2(l) of the CENVAT Credit Rules, 2004 since the advertisement services for ‘aerated water’ impact the sale and manufacture of ‘concentrates’
Coca Cola India Pvt. Ltd. v. CCE (2015) 38 STR 695 (Tri.-Mum.)
72. The Tribunal held that credit of ‘Rent-a-Cab service’ is admissible prior to 1-4-2011 in view of CBEC Circular No. 943/4/2011-CX dated 29-4-2011 and credit of services of outdoor catering, insurance, pandal & shamiana, and testing and analysis is admissible as these services are related to promotion of assessee’s business which view has also been held by the Bombay High Court in CCE vs. UltraTech Cement Ltd.(2010) STR 577 (Bom.); and that credit of Sodexo coupons issued to employees was not admissible under ‘Business Auxiliary Service’ since it has no nexus in relation to any business activities of the Respondent.
CST v. Ford Business Service Centre Pvt. Ltd. (2015) 38 STR 700 (Tri.-Chennai)
73. The Tribunal allowed CENVAT credit of service tax paid on GTA service for outward transportation of freight paid for delivery up to buyers premises as the ownership and property of goods was transferred at the customer’s doorstep.
CCE, Rohtak v. Haryana Sheet Glass Ltd. 2015 (39) STR 392 (P&H)
74. The Tribunal allowed CENVAT credit of service tax paid on canteen services to employees as the same was statutory obligation imposed under factories Act, 1948.
CCE, Bangalore-II v. Tata Steel Ltd. 2015 (39) STR 402 (Kar.)
75. The Tribunal held that during the warranty period the assessee was duty bound to provide free repair & maintenance services to buyers of alternators and it was condition of sale and therefore the same is covered under definition of Input Service as activity relating to business.
Leroy Somer India Pvt Ltd. v. CCE, Noida 2015 (39) STR 466 (Tri.-Del.)
76. The Tribunal held that who had paid service tax was immaterial and any payment towards duty or service tax was entitled for input credit/ input service credit thereby allowing CENVAT credit of service tax paid by Goods Transporter Agency to the assessee.
Rucha Engineers P. Ltd. v. CCE, Aurangabad 2015 (39) STR 518 (Tri.-Mumbai)
77. The Tribunal held that, there is no provision in CCR, 2004 restricting availment only for services received after date of registration and that the essential criteria in Rule 9(2) of CCR, 2004 is that services ought to have been received, accounted and used in providing taxable service. There is no reason to take different view from judgment in Portal Wireless Solution Pvt. Ltd 2012 (27) STR 134 (Kar.). It further held that, there was no reason to deny CENVAT credit of service tax paid on renting of cafeteria, maintenance of air-conditioner, service of gym instructor as same were used for providing taxable output service.
CST, Chennai v. Verizon Data Services India P. Ltd. 2015 (39) STR 522 (Tri.-Chennai)
78. The High Court held that the process of issuance of an insurance policy by insurer and subsequent procurement of reinsurance policy from another company was an integral part of the total process. If entire service tax collected by insurer while selling insurance policies had to be deposited without being given credit of tax which is paid by it while procuring a policy of reinsurance, same would be against ethos of CENVAT Credit policy as same would amount to double taxation, which is not permissible in law.
CCE, Bangalore v. PNB Metlife India Insurance Co. Ltd. 2015 (39) STR 561 (Kar.)
79. The High Court allowed CENVAT credit of service tax paid on Rent-a-Cab service for transportation of employees from home to factory and back to home and on outdoor catering service for providing food to their employees.
CCE, Bangalore-I v. Interplex Electronics India Pvt. Ltd. 2015 (39) STR 578 (Kar.)
80. The Tribunal held that there is no provision in Trade Marks Act, 1999 or any rules mentioned under which it is obligatory on part of assessee to compulsory use trade mark himself. Packaging services are not availed directly for protecting trade mark/ brand name but to be considered to have been utilised for making of tea bags and therefore credit was not admissible to the assessee who provided IPR services and claimed credit on packaging of tea on its own account.
Gujarat Tea Depot Co. v. CST, Ahmedabad 2015 (39) STR 629 (Tri.-Ahmd.)
81. The Tribunal held that service recipient is not responsible for examining the correctness of service tax paid by service provider and they were entitled to claim the credit service tax charged by the Service provider.
India Vision Satellite Communications Ltd. v. CCEC&ST, Cochin 2015 (39) STR 684 (Tri.-Bang.)
82. The High Court held that service tax paid on housekeeping and gardening services availed by the employer to maintain their factory premises in an eco-friendly manner, would form part of the cost of final products and fall within the ambit of input services as a result of which the assessee was entitled to claim the benefit.
CCE&ST, LTU, Chennai v. Rane TRW Steering Systems Ltd. 2015 (39) STR 13 (Mad.)
83. The Tribunal held that car parking area charges and maintenance charges paid for utilisation of premises are for rendering output service hence credit thereon was admissible. Further it held that non-inclusion of the ground floor address in centralised registration certificate is a curable defect which was cured subsequently and could not be a ground for disallowance of Cenvat credit.
Nuware Systems Pvt. Ltd. v. CST, Bangalore 2015 (39) STR 134 (Tri.-Bang.)
84. The Tribunal allowed CENVAT credit of service tax paid on maintenance and repair of Xerox machine as the same was in relation to business of the appellant.
Nirma Limited v. CCE&ST, Vadodara 2015 (39) STR 145 (Tri.-Ahmd.)
85. The Tribunal allowed CENVAT credit of service tax paid on construction services used for expansion of factory building and insurance premium for factory building as the said services were covered by definition of input service.
Pranav Vikas (India) Ltd. v. CCE, Delhi-IV 2015 (39) STR 153 (Tri.-Del.)
86. The Tribunal held that CENVAT credit was not to be denied to unregistered branches as service tax is paid on the basis of centralised registration therefore credit could be taken in centrally registered office.
Nuance Transcription Services India Pvt. Ltd. v. CST, Bengaluru 2015 (39) STR 241 (Tri.-Bang.)
87. The Tribunal allowed CENVAT credit of service tax paid on collection and remittance services provided by foreign banks and commission paid to agents for export order and promotional activities outsourced as the department had not brought any evidence that services were not in relation to goods manufactured and exported.
Lupin Ltd. v. CCE&ST (LTU) 2015 (39) STR 249 (Tri.-Mumbai)
88. The Tribunal held that service tax paid on services provided by an overseas service provider (RCM) to for removal of rust developed during transit, deburring of certain machined area of axles and cross checking of dimensions at buyers premises was in relation to business and therefore rightly covered in inclusive definition of Input Service.
CCE&ST, LTU, Chennai v. Axles India Ltd. 2015 (39) STR 281 (Tri.-Chennai)
89. The Tribunal allowed Cenvat credit of service tax paid on catering service as the same was mandatory and having nexus manufacture of final product. However, proportionate service tax credit in respect of service tax borne by employees was to be reversed along with interest. It is further held that, guest house services not being connected to manufacturing activities in any way was not an eligible input service.
CCE, Nashik v. Mahindra & Mahindra Ltd. 2015 (39) STR 298 (Tri.-Mumbai)
90. The Tribunal allowed Cenvat credit of service tax paid on pandal & shamiana services utilised to safeguard machines lying in open for installation.
Dalmia Chini Mills v. CCE, LTU, New Delhi 2015 (39) STR 310 (Tri.-Del.)
91. The Tribunal held that CENVAT credit could not be denied to the recipient of input services on the ground that the service provider had not paid service tax since the recipient was unaware of the non-payment and claimed credit based on the CENVATABLE document.
Memories Photography Studio v. CST 2015 (39) STR (331) (Tri-Ahmd)
92. The Tribunal held that the assessee was entitled to CENVAT credit on inputs despite the fact that the conversion of black rods into bright bars, undertaken by it, did not amount to manufacture, since it had erroneously paid duty on the final product which was exempt.
RB Steel Services v. CCE & ST – (2015) 59 taxmann.com 13 (New Delhi – CESTAT)
93. The Tribunal held that 100 percent EOUs are entitled to avail and utilize CENVAT credit in respect of duty paid on inputs even if other inputs are procured duty free as it could exercise both options simultaneously.
Uniworth Ltd v. CCEST – 2015 59 taxmann.com 128 (New Delhi – CESTAT)
94. The Tribunal held that reimbursement of certain expenses to overseas branches for activities viz. registration, staff related expenses employed by distributor abroad, cost of promotional expense incurred by distributor abroad, VAT/GST paid by distributor/branches are towards services deemed to have been received and consumed by appellant in India and therefore liable for service tax and the assessee would be eligible for CENVAT credit on the same.
Torrent Pharmaceuticals Ltd. v. CST, Ahmedabad 2015 (39) STR 97 (Tri-Ahmd.)
95. The Tribunal held that garden maintenance services which was a requirement cast by the Maharashtra State Pollution Central Board upon the Port, event management services incurred at ceremonial occasions, brokerage services, being essential for ensuring the availability of staff, telephone and outdoor catering services being essential services to run the business were allowable as input services.
M/s.Gateway Terminals (I) Pvt. Ltd. v. CCE – 2015-TIOL-1471-CESTAT-MUM
96. The Tribunal held that since the assessee, in terms of Rule 65T of the Rajasthan Factories Rules, was required to maintain an occupational health centre as its employees were more than 500 and they carried out hazardous operations to be able to carry on the manufacturing activity, the service of receiving trained medical personnel through manpower supply agency for maintaining the occupational health centre had to be treated as in relation to manufacture of final product and would be eligible for CENVAT credit as input service.
Binani Cement Ltd. v. Commissioner of Central Excise & Service Tax, Jaipur-II – [2015] 58 taxmann.com 8 (New Delhi – CESTAT).
97. The Tribunal held that the Factories Act only to avoid the hardship for an essential need provided that factories having more than 250 employees should provide a canteen service. However it did not mean that the service was not required for any industrial service or organisation having less than 250 workers. Accordingly CENVAT credit on outdoor catering services was allowed.
CST, Mumbai v. Reliance Capital Asset Management Ltd – [2015] 58 taxmann.com 189 (Mumbai – CESTAT)
98. The Tribunal held that once proportionate service tax was borne by the ultimate consumer of the service, namely the worker/ beneficiary, the manufacturer could not take credit of that part of the service tax and hence, proportionate credit, to the extent it is embedded in the cost of food recovered from the employee/beneficiary, was not admissible to the assessee and that the onus to establish with documentary evidence that the element of service tax paid by the assessee was not recovered from the beneficiary/employees was on the assessee.
Cema Electric Lighting Products India (P.) Ltd. v. CCE, Ahmedabad-III – [2015] 58 taxmann.com 94 (Ahmedabad –CESTAT)
99. The Tribunal held that merely because the assessee’s parent company reimbursed part cost of the advertising expenses, it did not mean that the assessee would become disentitled to the service tax actually paid by it as the financial arrangement between the subsidiary company and the parent company had no connection for the purpose of availability of credit of service tax paid by the assessee. Accordingly CENVAT credit was allowed.
Suzuki Motorcycle (I) (P) Ltd. v. CCE – [2015] 58 taxmann.com 343 (New Delhi –CESTAT)
D. Others
Abatement
100. The Tribunal held that since the assessee, who had rendered erection, commissioning and installation services, had subsequently reversed the Cenvat Credit earlier claimed, was entitled to the benefit of the abatement under Notification No 1 / 2006.
UB Engineering Ltd v. CCE – (2015) 37 STR 999 (Tri.–Mumbai)
Appeal
101. The High Court held that where the issue arising out of the Tribunal’s order was whether the acitivities carried on by the assessee would be considered as a service and if so whether taxable and under which category, the appeal against the Tribunal order would lie before Supreme Court and not High Court since the issue has a direct and proximate relation to rate of service tax and value of service.
CST v. Saumya Construction Pvt. Ltd. (2015) 38 STR 17 (Guj.)
102. The High Court held that, when plea was not raised before adjudicating authority, then it could not be raised for the first time in appeal before the Appellate Tribunal.
Bharat Sanchar Nigam Ltd. v. CCE 2015 (39) STR 5 (All.)
103. The High Court held that it could not condone delay in filing appeal to Commissioner (Appeal) beyond condonable period of limitation under writ jurisdiction.
Sturdy Industries Limited v. UOI 2015 (39) STR 422 (P&H)
104. The High Court held that since the assessee had filed an appeal along with stay application, neither of which were disposed of, the recovery proceedings could not be initiated as the appeal would become infructuous.
Atharva Associates v. Union of India 2015 (39) STR (22) (Kar.)
105. The High Court held that the action of the Tribunal in deciding the stay application ex parte on second adjournment without considering the assessee’s request for adjournment, terming non-appearance as an abuse to the process of law was too harsh and therefore remanded the matter to the Tribunal.
CCE v. Federal Mogul TPR India Ltd. (2015) 59 taxmann.com 196 (Karnataka)
Demand / Extended Period
106. The Tribunal held that where there was of confusion about the scope of levy, the extended period of limitation was not invocable. Further where the issue involved was one relating to classification, imposition of penalties was not warranted
Shreem Coal Carriers (P) Ltd. v. CCE (2015) 37 STR 1067 (Tri.–Mumbai)
107. The Tribunal held that extended period of limitation was not invokable where the assessee had not paid service tax by relying upon a Tribunal decision in similar case as the plea of bona fide belief of the assessee was acceptable and there was no suppression.
CCE v. Central Panchayat (2015) 37 STR 1038 (Tri.–Mumbai)]
108. The Tribunal held that where the appellant’s records had been audited by the department on four occasions and where the DGCEI had itself after examining the documents concluded that there was no service tax liability payable by the assessee, the issuance of show cause notice by invoking the extended period of limitation was not permissible.
C. J. Shah & Co. (2015) 38 STR 152 (Tri.–Ahmd.)
109. The Tribunal set aside the demand holding that there is no ‘service’ rendered when commission received by the appellant is returned by him due to the fact that service could not be fully completed.
Agarwal Motors v. CCE (2015) 38 STR 775 (Tri.-Del.)
110. The Tribunal held that different classification of the same activity of the assessee for different periods based on the mode of payment made by the service receiver shows total confusion on the part of the Revenue as to the ‘nature of tax’ and the ‘measure of tax’ and hence the demand was held liable to be set aside.
Royal Western India Turf Club Ltd. v. CST (2015) 38 STR 811 (Tri.-Mum.)
111. The Larger Bench of Tribunal held that the relevant date for determining limitation period for refund of Cenvat credit on export of service is date of receipt of foreign exchange and therefore limitation period should start from that date.
CST, Goa v. Ratio Pharma India Pvt. Ltd. 2015 (39) STR 31 (Tri.-LB.)
112. The Tribunal held that the date of filing refund before wrong authority to be taken as date of filing for determining period of limitation.
CCE&ST, Tirupati v. Gimpex Ltd. 2015 (39) STR 143 (Tri.-Bang.)
113. The High Court held that notices of recovery initiated u/s. 87 of the Finance Act, 1994 before the show cause notices were adjudicated is illegal and required to be quashed.
Mrs. Prashanthi v. The Union of India – 2015-TIOL-1596-HC-KAR-ST
Penalty
114. The Tribunal held that the option of payment of 25% of penalty amount should be given to the assessee if the same is paid within 30 days from the date of communication of the O-I-O and thus, where the assessee had paid service tax along with interest before the issuance of show cause notice but no such option was given to the assessee in O-I-O, it granted the same to the assessee
Nasscom v. CST (2015) 37 STR 1041 (Tri.–Del.)
115. The Tribunal held that where the assessee had not paid the tax on renting of immovable property services in view of the Delhi High Court decision in case of Home Solutions Retail India Ltd., it was on account of a bona fide belief and hence no penalty was imposable
LMJ Service Ltd. v. CCE (2015) 38 STR 64 (Tri.–Del.)].
116. The Tribunal held that imposition of penalty under section 78 was not warranted where the appellant entertained a bona fide belief that its activities were not liable for service tax but had discharged the entire tax liability on commencement of the investigation proceedings.
Maosaji Caterers v. CCE (2015) 38 STR 69 (Tri.–Del.)
117. The Tribunal held that minimum penalty imposable u/s. 76 is equivalent to amount of tax and maximum penalty imposable is twice the amount of tax. The authorities having no discretion to reduce the penalty below the minimum prescribed limit
CCE v. Rudra Galaxy Channel Ltd. (2015) 38 STR 445 (Tri.-Mum.)
118. The Tribunal held that there was a reasonable cause for waiver of penalty u/s. 78 since the non-payment of service tax was detected from the books of account of the assessee hence there appeared to be no intention to evade payment of service tax and that the assessee had paid the entire tax before issuance of the SCN and that the adjudicating authority had dropped the penalty u/s. 76 on the grounds of reasonable cause and also due to the fact that the assessee was declared as a sick unit.
Garodia Special Steels Ltd v. CCE (2015) 38 STR 527 (Tri.-Mum.)
Refund and Rebate
119. The Tribunal held that the substantial benefit of rebate under Notification No. 12/2005-S.T. dated 19-4-2005 cannot be denied for procedural failure of not filing the declaration prior to exports since the contents of the declaration were such that it could easily verified from records maintained by the assessee.
Crest Premedia Solutions Pvt. Ltd. v. CCE (2015) 38 STR 46 (Tri.–Mum.)].
120. The Tribunal held that service tax payable on advance received by the assessee where no services were subsequently rendered was to be considered as a deposit and not duty and therefore the provisions of section 11B of the Central Excise Act, 1944 would not be applied for seeking refund of such amount and hence the refund was admissible and not time barred.
CCE&ST v. Madhvi Procon Pvt. Ltd. (2015) 38 STR 74 (Tri.–Ahmd.)
121. The Tribunal held that where the assessee had paid certain amounts during the course of investigation and contested the issue on merits, the payment would be considered as deposit and ‘deemed protest’ payment and accordingly refund of the same, on determination of the issue by the Tribunal in its favour, cannot be denied on the ground of time bar.
CC&ST v. H. K. Dave Ltd. (2015) 38 STR 77 (Tri.–Ahmd.)].
122. The Tribunal held that the refund of CENVAT credit availed on input services used for exports cannot be denied under notification No. 5/2006-C.E (NT) on the ground that the assessee had not obtained service tax registration at the time of exports and the services were used for providing output services before obtaining registration.
CST v. Sure Prep (India) Pvt. Ltd. (2015) 38 STR 44 (Tri.–Mum.)
123. The Tribunal held that refund of service tax paid on input services which were wholly consumed in SEZ would be allowable under Notification No. 9/2009-ST even though service tax was not leviable in the first place.
Barclays Technology Centre India (Pvt.) Ltd. v. CCE (2015) 38 STR 35 (Tri.–Mumbai)
124. The Tribunal held that when an appeal is decided in favour of the assessee then all amounts deposited by it, whether by way of tax or interest, assume the character of ‘deposit’ and are liable to be fully refunded.
Roshan R. Jaiswal v. CCE (2015) 38 STR 772 (Tri.-Mum.)
125. The Tribunal held that the jurisdiction for filing of the refund claim in respect of export of goods lies with the Commissionerate having jurisdiction over the factory from where goods are exported and not the Commissionerate having jurisdiction over the registered office of the assessee
CCE v. Noble Grains Ltd. (2015) 38 STR 525 (Tri.-Mumbai)
126. The Tribunal set aside the order of the lower authorities rejecting the refund of service tax for the period July 2006 to July 2008 paid by the appellants, on the ground of time bar and unjust enrichment as letter written by the assessee to the department stating that payment was being made under pressure from department would be sufficient proof that such payments were ‘under protest’ and hence the provisions of time bar under section 11B of the Central Excise Act, 1944 would not apply and the burden of unjust enrichment was discharged by the assessee evident from the letters written by it to the intended buyers that the price agreed was not inclusive of service tax and such tax had been paid by the assessee out of its own pocket which had been certified by a Chartered Accountant.
Ind Swift Lands Ltd. v. CCE&ST (2015) 38 STR 819 (Tri.-Del.)
127. The Tribunal held that while considering rebate claim for output service, the issue of nexus between input services and exported output services cannot be raised as there was no clear proposition or proposal for denial of CENVAT credit used for payment of service tax on output service in SCN.
Textron India Pvt. Ltd v. CST, Bangalore 2015 (39) STR 468 (Tri.-Bang.)
128. The Tribunal held that, there is no prohibition in law for making export from unregistered premises and once admissible CENVAT credit accumulates and rule provides for refund, such refund cannot be rejected.
Embitel Technologies (India) Pvt. Ltd. v. CST, Bangalore 2015 (39) STR 612 (Tri.-Bang.)
129. The department in this case rejected refund claimed by SEZ Developer under Notification No.9/2009-ST of service tax paid on services used prior to commercial production in SEZ. The Tribunal held that, Notification No.9/2009-ST cannot disentitle immunity enjoyed under sections 7 and 25 of SEZ Act, 2005. Hence assessee is entitled to refund for services wholly consumed within SEZ in authorised operations.
Zydus Technologies Ltd. v. CST, Ahmedabad 2015 (39) STR 657 (Tri.-Ahmd.)
130. The Tribunal rejected the contention of the department, rejecting refund claim on the ground that address mentioned in invoice is not registered office and that unutilised, accumulated CENVAT credit refund amount exceeded the amount of CENVAT credit in ST-3 returns. It held that the address in the invoice was the address of a group company, which was subsequently recognised as registered office by Revenue and that business is a continuous activity and therefore CENVAT credit cannot be restricted to amount of CENVAT credit availed during the period as per service tax return.
Cararo Technologies India P. Ltd. v. CCE, Pune-III 2015 (39) STR 673 (Tri.-Mumbai)
131. The Tribunal allowed the rebate of service tax paid on commission received under BAS, which was rejected by the Revenue on the ground that the output service was not exported and held that the services provided were procurement of order and forwarding same to principal situated abroad, who was free to accept or reject the order and therefore was rendered to person situated abroad and was export of service.
Enervision Services P. Ltd. v. CCEC&ST, Hyderabad-II 2015 (39) STR 681 (Tri.-Bang.)
132. The Tribunal held that refund claim for a particular quarter need not be in respect of input service consumed in that quarter and since the assessee did not have any domestic sales it was entitled to refund claimed.
Ionnor Solutions Pvt. Ltd. v. CCE&ST, Chandigarh-I 2015 (39) STR 698 (Tri.-Del.)
133. The Tribunal held that, the refund of excess amount paid during investigation is not hit by limitation under section 11B of CEA, 1944 as there is no issue of unjust enrichment.
Metro Motors v. CCE, Daman 2015 (39) STR 77 (Tri.-Ahmd.)
134. The High Court held that any amount deposited during the pendency of adjudication proceeding or investigation is in the nature of deposit made under protest and therefore the principles of unjust enrichment do not apply in such cases.
CCE, Coimbatore v. Pricol Ltd. 2015 (39) STR 190 (Mad.)
135. The Tribunal held that an EOU can file quarterly refunds under Notification No. 5/2006-CE(NT) and since the said Notification is issued under Rule 5 of CCR, 2004 and not linked to refund procedure under section 11B of CEA, 1944, hence no time limit was applicable.
Quality BPO Services Pvt. Ltd v. CST, Ahmedabad 2015 (39) STR 230 (Tri.-Ahmd.)
136. The Tribunal held that procuring purchase orders from Indian Customers on behalf of foreign companies would be considered as an export of services since the effective use and enjoyment of the service was by the foreign company and therefore refund was allowable as the services were exported.
CST v Ishida India Pvt Ltd – 2015-TIOL-1719-CESTAT-DEL
137. The Tribunal held that since the recipient of services was located outside India and the payment was received in convertible foreign exchange the services provided qualified as export of services and merely because the services were used for investing in India, the department was incorrect in denying refund to the assessee.
CST v. NV Advisory Pvt LTd – 2015 (39) STR 210 (Tri-Mumbai)
138. The Tribunal held that time limit for filing refund claim extended to one year by Notification No. 17/2009-ST was applicable only to refund claims filed after 7-7-2009 and all for refund claims filed prior to that date the old time limit of six month would be applicable.
Associated Aluminium Industries Pvt. Ltd. v. CST, Mumbai-I 2015 (39) STR 234 (Tri.-Mumbai)
139. The High Court held that the provisions of section 11B of the Central Excise Act, 1944 are not applicable for refund of service tax paid erroneously and therefore the assessee could not be denied refund of wrongly paid service tax on services qualified as export of services. It held that once there was no compulsion or duty cast to pay service tax, there was no authority for the department to retain such amount and the refund was not relatable to section 11B of the Central Excise Act, 1944 also considering the fact that the mistake in the present case was on account of fact and not on account of law.
M/s. Geojit BNP Paribas Financial Services Ltd. v. CST – 2015-TIOL-1602-HC-KERALA-ST
Service of Order
140. The Tribunal held that an appeal against orders dated 15-2-2008 & 31-3-2009 filed on 13-3-2013 were filed on time considering that the orders were received by it through speed post only on 2-3-2013. The Tribunal held that under section 37C the permitted mode of communication of order was through Regd. Post (A.D.) and not through Speed Post and since there was not sufficient compliance of the provisions of section 35C(1)(a) and the service of order would be deemed to be on 2-3-2013.
Marketing Times Automobiles Pvt. Ltd. v. CCE (2015) 38 STR 414 (Tri.-Del.)
Show Cause Notice
141. The High Court held that, when there is a finding of fact that no show cause notice has been issued to the assessee then proceedings in connection therewith and the adjudication thereon was a nullity.
CCCE&ST, Guntur v. Narayana Coaching Centre 2015 (39) STR 433 (AP)
142. The Tribunal held that since the total amount of service tax mentioned is more than Rs. 5 lakhs the AC/DC could not have adjudicated SCN in view of provisions of section 83A of FA, 1994 read with Notification No. 30/2005-ST. It was also held that even the penalty proposed in annexure to SCN was more than impugned amount, therefore entire proceedings become invalid.
Raasi Refractories Ltd. v. CCEC&ST, Hyderabad-III 2015 (39) STR 472 (Tri.-Bang.)
143. The High Court held that mandatory pre-deposit under amended section 35F of CEA, 1944 is applicable only to appeal filed on or after 6-8-2014 even if SCN was issued prior to 6-8-2014. The second proviso to this section clearly indicates that the requirement of mandatory pre-deposit shall not apply to stay application and appeals which were pending prior 6-8-2014. It is further held that, High Court can dispense with the requirement of pre-deposit under the new section 35F, since powers of the High Courts under Article 226 of Constitution of India are not ousted.
Ganesh Yadav v. UOI 2015 (39) STR 177 (All.)
Miscellaneous
144. The High Court held that if the main contractor had paid service tax, the sub-contractor need not pay service tax but he had to prove that the payment was made by the main contractor.
Sew Infrastructure Ltd. v. CCE (2015) 37 STR 984 (Chhattisgarh)
145. The Tribunal held that the assessee, a service provider, can by way of a contract transfer the service tax burden on a third party but cannot ask the Revenue to recover the tax dues from such third party or wait for discharge of the liability till he has recovered the tax amount from such third party
Delhi Transport Corporation v. CST (2015) 38 STR 673 (Del.)]
146. The Court held that the service receiver in India was not liable to pay service tax in respect of the services received from a service provider located outside India prior to the introduction of section 66A i.e. before 18-4-2006.
CCC&E v. Moser Baer India Ltd. (2015) 38 STR 687 (All.)
147. The Court condoned a delay of 6 months in filing of appeal before the Tribunal as the order was not communicated to the assessee’s authorised person.
G.M.T.D. Bharat Sanchar Nigam Ltd. v. CC &CE (2015) 38 STR 691(Uttarakhand)
148. The Court held that pre-deposit of tax can be ordered where there is tax demand and penalty and that pre-deposit of penalty can be ordered where there is an appeal against the penalty.
Share Microfin Ltd. v. CCCEx&ST (2015) 38 STR 457 (A.P.)
149. The High Court held that the liability to pay service tax is upon service provider and he has right to collect said tax from service recipient and that there is no provision for recovery or reimbursement of any service tax by service provider from service recipient.
Multi Engg. & Scientific Corp. v. Bihar State Electricity Board 2015 (39) STR 414 (Pat.)
150. The Tribunal held that, the transaction undertaken by the assessee of procuring orders on behalf of overseas manufacturers and rendering of services if any, could not be considered as services provided in India and therefore set aside the impugned order denying export of services as it was unsustainable.
ATE Enterprises Pvt. Ltd. v. CST, Mumbai 2015 (39) STR 81 (Tri.-Mumbai)
151. The Tribunal held that the language used in section 85(4) of FA, 1994 has wider connotation and not restrictive as used in section 35A(3) of CEA, 1944 and therefore Commissioner (A) has powers to pass such orders as he thinks fit which includes the power of remand.
CCE, Panchkula v. Goel International Pvt. Ltd. 2015 (39) STR 330 (Tri.-Del.)
Sunil Moti Lala
