A] Classification of Service
Advertising Agency Service
1 The Hon’ble Tribunal held that the appellant only collected advertisement and forwarded to newspapers for publication and did not carry out any activity connected with making, preparation, display etc. therefore, was not liable to service tax under Advertising Agency Service.
Spring Advertising Pvt. Ltd. v. CCCEX&ST, Aurangabad 2014 (36) STR 883 (Tri.-Mumbai)
Banking & other Finance Services
2 Where the assessee had leased/licensed their plant to its customer for a rent payable per month with no element of financing involved in the agreement, it was held that the agreement was purely an agreement of renting of immovable property (plant & machinery) which became taxable under section 65(105)(zzzz) w.e.f. 1-6-2007 and could not be classified under the category of ‘Banking and Financial Services’ as ‘financial leasing including equipment leasing or hire purchase’.
Flex Industries Ltd., v. CCE [2014] 36 STR 659 (Tri.- Del.)
3 Where the assessee, who was neither a bank nor a NBFC, had leased out land, plant and machinery owned by it and the lease agreement did not provide for transfer of assets at the end of the lease term to the lessee, the Hon’ble Tribunal held that such leasing activities were not be liable for service tax under the category of ‘Banking and financial service”
Vidarbha Iron & Steel Corporation Ltd. v. CCE [2014] 36 STR 324 (Tri.-Mum.)
4 The issue which arose before the Hon’ble High Court was whether hiring of a car was different from renting of vehicle for the purpose of levy of service tax. The Hon’ble High Court observed that the scheme was formulated for regulating the business of renting of motor cabs or motorcycles to persons desirous of driving by themselves or through drivers, either for their own use or for matters connected therewith, nature of service provided while hiring and renting was the same such that services are taxable. The Hon’ble High Court further held that the legislature had not made any distinction between hiring and renting of vehicle. Thus the assessee could not escape tax liability on ground that hiring was different from renting as intention of Government was to tax service provider of service which involves both hiring and renting of cab for a longer duration.
CST v. Vijay Travels 2014 (35) STR 513 (Guj.)
Broadcasting Agency Service
5 The assessee was a subsidiary/associate of foreign based T.V. broadcasting companies. Since the assessee was deemed to be a branch office/ subsidiary/representative/agent in India of the said companies, it paid service tax on its gross income under the category of ‘Broadcasting service’ as it was considered to be a Broadcasting agency. The Revenue sought to levy service tax under reverse charge on the payments made by the assessee to its such foreign companies. The Hon’ble Tribunal held that (a) The programmes/ channels uplinked on the foreign satellite by the foreign broadcasters were directly downlinked by the MSO/DTH operators in India and not by the assessee and hence, technically the MSO/ DTH operators were the service recipients and not the assessee. (b) The assessee was a service provider and not a service receiver (c) Granting distribution rights to the assessee was not covered under the definition of ‘Broadcasting’.
ESPN Software India (P) Ltd. v. CST [(2014) 35 STR 927 (Tri.-Del.)]
Business Auxiliary Service
6 The main function of the assessee was to deliver money to the ultimate beneficiary in India as per directions given by their principal representative for which the assessee got commission. The Hon’ble Tribunal relied on the judgment of Paul Merchants Ltd. and held that advertisement and sale promotion by agent/subagent as also delivery of money to the ultimate beneficiary in India was to be treated as export of service and therefore was not liable to service tax.
CCE, Chandigarh v. Ashu Forex Pvt. Ltd [(2014) 35 STR 776 (Tri-Del.)]
7 The activity of fabrication of steel storage tanks, dozers and settlers, steel structures, steel platforms, railing, foundation frames, etc. and their erection and installation in the factory was not liable to service tax under the category of business auxiliary services since it did not fall under any of the sub-clauses of the definition
CCE v. Kunal Fabricators & Engineering Works [2014] 36 STR 549 (Tri.-Del.)
8 Where the Hon’ble Tribunal found that the assessee, a well-known actress promoted her clients products/services by appearing in her clients advertisements and promotional events/ activities, it was held that the assessee was providing the service of promoting a brand i.e. “Brand Ambassador Services” liable for service tax w.e.f. 1-7-2010 and not marketing or promotion of some particular goods or services of the client and her services would not be liable for service tax under the category of ‘Business Auxiliary Service’ prior to 1-7-2010.
CST v. Shriya Saran (2014) 36 STR 641 (Tri.-Del.)
9 Where the assessee had entered into a Management Agreement with its principal whereby it was to undertake activities of designing, managing and operating showroom, receiving goods on stock on transfer basis, undertaking sales promotion activities and collecting the sale proceeds on behalf of the principal, the Hon’ble Tribunal held that the activities would not fall within the purview of “Commission agent” as defined in Notification No.13/2003 and accordingly would not be exempted from payment of service tax
Provincial Lifestyle Retail Services v. CCE [2014] 36 STR 305 (Tri.-Mum.)
10 Where the assessee was engaged in buying goods from M/s. MGL and thereafter selling the same to the buyers on principal to principal basis and had not provided any services of marketing the goods of M/s. MGL no service tax could be demanded from the assessee only on the grounds that its trade margin was shown as commission in its invoices
Bharat Petroleum Corporation Ltd. v. CST [2014] 36 STR 433 (Tri.-Mum.)
11 The activity of fabrication of steel storage tanks, dozers, settlers, steel structures, platforms, railing, foundation frames etc. and their erection and installation in the factory amounts to manufacture and the same would not be liable for service tax under the category of Business Auxiliary Services.
CCE v. Shri Shanker Engineering Works [2014] 36 STR 436 (Tri.-Del.)
12 The appellant provided services to customer in Hong Kong which were utilised abroad and consideration thereon was received in CFE. Following the decision in the case of Paul Merchants Ltd. 2013 (29) STR 257 (Tri.), it was held that the transactions would fall within the ambit of Export Service Rules, 2005.
Alpine Modular Interiors (P) Ltd. v. CST (Adj.) New Delhi 2014 (36) STR 454 (Tri.-Del.)
13 It was held that process of making of corrugated boxed from craft paper on job work basis amounted to ‘manufacture’ and therefore not liable to service tax.
Vishal Packaging v. CCE, Raipur 2014 (36) STR 465 (Tri.-Del.)
14 It was held by the Hon’ble Tribunal that multipiece packaging on soaps already packed amounted to repacking and accordingly the same was covered under the definition of ‘manufacture’ under section 2(f)(iii) of Central Excise Act, 1944. It was further held that Notification No. 8/2005- ST was applicable as the goods were returned to supplier after undertaking job work for further manufacture.
Deshmukh Services v. CCE, ST&C, Nagpur 2014 (36) STR 100 (Tri.-Mumbai)
15 The appellant provided computerised data processing services in relation to banking and financial services to clients’ group entities. The Hon’ble Tribunal held that since services provided were in relation to Banking and Financial Services, the question of providing services incidental or ancillary to any customer care services did not arise. Further, since services were included under Information Technology Software Services, therefore the same would be specifically excluded from Business Auxiliary Services.
TCS E-Serve Ltd. v. CST, Mumbai-II 2014 (36) STR 132 (Tri.-Mumbai)
16 The assessee was engaged as a Direct Sale Agent to evaluate prospective customers for ICICI Bank. The Hon’ble Tribunal held that there was a contract between assessee and ICICI Bank and not between assessee and customers and services provided by the assessee were in the nature of promotion and marketing and the said services could not fall under category of ‘provision of service on behalf of client’ as prescribed under category (c) of Notification No. 14/2004-ST and benefit thereof was not available to the assessee.
CCE, Chandigarh vs. Kathuria Financial Services 2014 (36) STR 662 (Tri.-Del.)
Business Support Service
17 The assessees undertook management of distillery unit M/s Kolhapur Sugar Mills Ltd. (KSML) for which it paid them ` 30 lakhs per annum but the profit/loss was on account of the assessee. KSML were also paying service tax under the category of “franchise service” as directed by revenue since 2006. On these facts the Hon’ble Tribunal held that the assessee has not provided any support service to KSML and could not be made liable under “Business Support Services”.
Karan Agencies v. CCE [2014] 36 STR 667 (Tri.- Mum.)
18 The appellant in this case collected market fees from farmers for providing infrastructural support and other facilities. The department sought to tax them under BSS. The Hon’ble Tribunal held that CBEC Circular No. 157/8/2012-ST dated 27-4-2012 clarified that the appellant was not rendering any service to licensees and market fees were not in the nature of consideration for such service. The appellant provided basic facilities to farmers, purchasers and others and such services were classifiable as Business Auxiliary Services and covered by exemption.
Agricultural Produce Market Committee v. CCE, Nagpur 2014 (36) STR 382 (Tri.-Mumbai)
19 The Hon’ble Tribunal held that IPO financing received from NBGC was not liable to service tax under Business Auxiliary Services. Further, Reimbursement received of common expenses such as electricity and other expenses was just a share of expenses and was not liable under Business Support Services as infrastructure support services.
JM Financial Services Pvt. Ltd. v. CST, Mumbai-I 2014 (36) STR 151 (Tri.-Mumbai)
Cargo Handling Services
20 Where the assessee a container freight station (CFS) (i) recovered transportation charges (on actual basis) from the clients by way of separate bills (ii) Charged and paid service tax on cargo handling charges separately (on actual basis) (iii) Discharged Service tax on GTA services provided by its vendor transporters as recipient of services, the Hon’ble Tribunal held that the question of leviability of Service tax on the whole amount under one taxable service of Cargo handling was not sustainable in law.
Balmer Lawrie & Co. Ltd. v. CCE, Raigad [(2014) 35 STR 800]
21 Where the assessee was engaged in loading, unloading and shifting of sugar bags from floor to mill house to godown and from one godown to another, the Hon’ble Tribunal held that these activities would not be liable for service tax under the category of ‘Cargo Handling Service’
CCE v. Surender Kumar [2014] 36 STR 327 (Tri-Del)
Clearing & Forwarding Agency Services
22 An activity would be taxable under the category of ‘clearing’ and ‘forwarding’ agency services only when both – clearing and forwarding activities were done. Mere distribution of goods sent by another company to the assessee could not be taxed under clearing and forwarding agency services
CCE v. Fenner (India) Ltd. [2014] 36) STR 503 (Mad.)
23 Where the assessees were merely procuring orders on commission basis and were not undertaking the work of clearing and forwarding of the goods, the Hon’ble Tribunal held that the same would not be liable for service tax under the category of Clearing and Forwarding Agent services.
Malhotra Distributors Pvt. Ltd. v. CCE [2014] STR 93 Tri.-Mum.)
Commercial or Industrial Construction Service
24 The appellant was supplying GRP pipes, manufactured by it and carried out lowering, laying, joining and testing of such pipes at the site of its customer. The appellant contended that since pipelines laid for a Government of Gujarat undertaking i.e. GIDC for providing water supply, it was not liable to service tax. The Hon’ble Tribunal held that the activity of laying of pipeline as taxable under Commercial or Industrial Construction Service as GIDC was set up to establish and organize areas/centers for commercial purposes or industries within the State of Gujarat.
Graphite India Ltd. vs. CCE, Nashik 2014 (36) STR 948 (Tri.-Mumbai)
Consulting Engineer Service
25 Prior to 1-5-2006, Companies (i.e. body corporate) were not covered under the definition of Consulting Engineer as defined in section 65(13). Accordingly, it was held that prior to 1-5-2006 no service tax was payable by the company in respect of consulting engineering services rendered by it. Further the Hon’ble Tribunal relying on Trade Notice No. 53-CE, Service Tax/97 dated 4-7-1997 also held that where the assessee had rendered services to the primary consultant as a sub-consultant, no service tax are required to be paid by it.
Crompton Greaves Ltd v. CCE [2014] 36 STR 358 (Tri-Mum) relying on Simplex Engineering & Foundry Works P. Ltd. v. CCE [2012] 25 STR 106 (Tri.-Del.)
Commercial Training or Coaching Services
26 Notification No. 7/2003 dated 1-7-2003 had exempted – (i) vocational training institute (ii) computer training institute and (iii) recreational training institute from the category of commercial coaching and training from 1-7-2003 – 30-6-2004. Thereafter, Notification No. 24/2004 dated 10-9-2004 exempted only “vocational training institute” and “recreational training institute”. This notification which was amended on 16-6-2005 provided that computer training institutes were excluded from the purview of vocational training institutes. On appeal, the High Court confirmed the order of Hon’ble Tribunal that held that in the interim period between 10- 9-2004 – 15-6-2005, computer training institutes would qualify as vocational training institutes since such training imparts skill to the trainee to undertake self-employment or seek employment after such training and accordingly would be exempt.
CCE v. Doon Institute of Information and Techno P. Ltd. [(2014) 35 STR 711 (Uttarakhand)]
27 The Hon’ble Tribunal held that the training programme to impart and promote advancement and diffusion of knowledge in the field of aerospace, aviation science, aircraft engineering, technology and evaluation of aeronautical professional was not liable to service tax. It relied on the decision in case of Indian Institute of Aircraft Engineering 2013 (30) STR 689 (Del.)
Hindustan Institute of Aeronautics 2014 (36) STR 703 (Tri.-Del.)
Foreign Currency Conversion Services
28 The issue before the Hon’ble High Court was whether the activity of depositing foreign remittances in the customer’s account in INR by banks could be construed as ‘Foreign currency conversion services’. It was held that the bank while remitting foreign currency, purchased such currency at a lower rate than the RBI notified rate (i.e. the rate at which the currency was converted), and the difference in such rates was to be construed as ostensible consideration which the bank derives. Thus, such services would be subject to service tax.
M/s Palm Fibre India Pvt Ltd v. Union Bank of India [WP(C) No. 2809 of 2014(A)]
Franchise Service
29 The appellant which was accredited with International Corporation for Assigned Names and Numbers (ICANN), after identifying and setting minimum standards for registration, was allowed to use symbol indicating accreditation. However, the Hon’ble Tribunal held that it could not be said that the assessee was providing franchise service of associate franchisor of ICANN. It also held that accreditation and representing ICANN were two different things, and assessee was only accredited by ICANN. It was also held that agreement between assessee and reseller was on principal to principal basis and resellers could be considered as franchisee or associate franchisor of ICANN.
Directi Internet Solutions P. Ltd. v. CST, Mumbai 2014 (36) STR 849 (Tri. – Mumbai)
Health and Fitness Service
30 Where the assessee a trust registered under the Maharashtra State to teach the art of yoga undertook the activity of treating particular ailments by combination of yoga and medicine it was held that the assessees are liable for service tax under the category of ‘Health and Fitness Service’.
Manav Sansadhan Vikas Ani Sansodhan Manch v. CCE [2014] 36 STR 385 (Tri.-Mum.)
Intellectual Property Service
31 Fees received by the assessee for sublicencing the copyrights in cartoon characters which were ‘artistic work’ covered under section 2(c) of the Copyright Act, 1957 and not a ‘trademark’ under the Trade Mark Act, 1999, was not taxable under IPR services since ‘copyright’ was specifically excluded from the definition of IPR service.
ESPN Software India (P) Ltd. v. CST [(2014) 35 STR 927 (Tri.-Del.)]
32 The assessee had obtained information which were trade secrets/confidential information under US law of another company. In an appeal the US Court restrained the assessee from utilising the said technology in India. To overcome these adverse legal decision the assessee entered into an out of court settlement agreement with other company whereby it paid a compensation of USD 3.8 crore to other company and became a co-owner of the technology. The revenue had sought to demand service tax on these payments under the category of Intellectual Property Right (“IPR”) services. On appeal the Hon’ble Tribunal held that –
• In absence of any law in India governing trade secrets and confidential information, the same would not be considered as IPR under the service tax law;
• Since there was a permanent transfer of copyright and not a temporary transfer, the same would not constitute a service.
• Payment received towards out-of-court settlement would not be considered as towards supply of taxable service.
Accordingly no service tax would be payable by the assessee on the above payments under the reverse charge basis under the category of IPR services.
Thermax Ltd. v. CCE [2014] 36 STR 318 (Tri.- Mumbai)
Lending Services
33 The Hon’ble Delhi Tribunal held that the commitment charges, imposed by the banks on clients who decided not to draw the amount of the loan that had been at their disposal, being integrally connected with the lending services, which were taxable services, would be chargeable to service tax.
Punjab National Bank v. C.C.E [2014-TIOL-2080- CESTAT-DEL]
Maintenance and Repair Services
34 Services provided under the category of the repair and maintenance during the period 10-9-2004 to 31-3-2006 were liable to service tax only when they were conducted in terms of a contract or an agreement. In absence of any findings in the order of the Commissioner (Appeals) to this effect, the demand was set aside.
CCE v. Kunal Fabricators & Engineering Works (2014) 36 STR 549 (Tri.-Del.)
Management Consultancy Services
35 The services of monitoring and review of performance of subsidiaries, providing technology upgradation, research and development, etc. were clearly taxable under the category of Management Consultancy Services.
CCE v. Bharat Yantra Nigam Ltd. (2014) 36 STR 554 (Tri.-Del.)
36 Where the assessee M/s GSPL had entered into an agreement with M/s BWIL for integration and jointly carrying out day-today functions such as commercial, marketing, corporate personnel, quality assurance etc., and for sharing the cost incurred towards the same and in absence of any evidence of the assessee having provided any consultancy services in the field of management, the Hon’ble Tribunal held that assessee cannot be said to have provided management consultancy services to M/s BWIL. Accordingly no service tax can be demanded from it under this category of Management Consultancy Service.
GlaxoSmithKline Pharmaceuticals Ltd. v. CST [2014] 36 STR 349 (Tri.-Mumbai)
Manpower Recruitment and Supply Agency Service
37 The assessees (trusts/co-operative societies of farmers), entered into an agreement with farmers for harvesting and transportation of sugarcane and were paid based on tonnage of sugarcane supplied. It distributed amounts received to the labourers after retaining a supervision charge. It was held, on facts, that the services were not liable for service tax as ‘Manpower Recruitment and Supply Agency Service’. It was further held that though the assessee did not procure sugar (input) for sugar factories they rendered a service incidental or ancillary to such procurement, and hence their activity more appropriately fell under Business Auxiliary Service [65(19)(vii)]. Also, it was held that other jobs such as handling of sugarcane/ sugar, cleaning or removal of boiler ash, stitching sugar bags, etc. were not liable for service tax under the category of ‘Manpower Recruitment and Supply Agency Service’.
Satara Sahakari Shetu Audyogik Oos Todani Vahtook Society v. CCE [2014] 36 STR 123 Tri.-Mum.) See also Samarth Sevabhavi Trust v. CCE [2014] 36 STR 83 (Tri.-Mum.); Amrit Sanjivani Sugarcane Transport Co. P. Ltd. v. CCE [2014] 36 STR 360 (Tri-Mumbai)].
38 The Hon’ble High Court held that hiring of expatriate employees from overseas group entities, under an employment agreement did not qualify as ‘manpower recruitment or supply services’. It observed that the Indian company paid the salaries, deducted tax and contributed to statutory social security benefits for the expatriate employees under a contract of employment entered into with the employee directly. Thus, there was no service that had been provided by the group companies and the employees while working on the payroll of the Indian company.
CCE. v. M/s. Computer Science Corporation India Pvt. Ltd. [2014-TIOL-1896-HC-ALL-ST]
Offshore Drilling Services
39 The Hon’ble Tribunal held that offshore drilling services provided beyond territorial waters of India were taxable under ‘Supply of tangible for use’ service category. The Hon’ble Tribunal observed that two conditions stipulated to be complied for a service to qualify as ‘supply of tangible goods for use’ – supply of tangible goods for use & supply of goods along with the personnel to operate the same and no transfer of right of possession and effective control of such goods was to be made to the service receiver. It was also held that since the services were provided in an area notified under the Maritime Zone Act, 1976, the same were held to be provided in taxable territory.
Great Ship (India) Ltd. v. Commissioner of Service Tax [2014-TIOL-2122-CESTAT-Mum.]
Online information and database access or retrieval service
40 The department demanded service tax under RCM on receipt of service from foreign CRS/GDS companies. The assessee contended that no service was received as transaction occurred between Head Office in UK and CRS/ GDS companies located abroad and payment was also made outside India. The Hon’ble Tribunal observed that appellant was for some limited purpose and by virtue of section 66A(2) of FA, 1994 it had to be treated as a separate person from Head Office, such that the transaction only existed between Head Office and foreign companies. Thus the Hon’ble Tribunal held that appellant could not be treated as recipient of service provided by CRS/GDS companies and no Service Tax could be charged from them.
British Airways v. CCE (Adjn) Delhi 2014 (36) STR 598 (Tri.-Del.).
Outdoor Catering Service
41 Outdoor Catering Service provided by a NGO on no profit-no loss basis was still liable for service tax. However it was entitled to exemption vide ad hoc exemption order No. 2/2/2011-ST dated 8-8-2011.
Naandi Foundation v. CCE, Jaipur [(2014) 35 STR 775 (Tri.-Del.)].
Port Services
42 Where the assessee was carrying out stevedoring services (loading/unloading of export cargo) and lighterage services (sea transportation from the location where the mother vessel is anchored till the jetty and vice versa) at minor port in Gujarat under the licences granted to them by the Gujarat Maritime Board Act which was not an authorization by the port in term of s. 32(3) of the Gujarat Maritime Board Act, the Hon’ble Tribunal held that the assessee would not be liable for service tax under the category of ‘Port Services’.
Shreeji Shipping vs. CCE & ST (2014) 36 STR 569 (Tri.-Ahmd.)
Programme Producer Service
43 Where the scope of work involved provision of pre-production, production and post production services and the fees for the same were shown in the invoice as pertaining to ‘Production Services rendered’, the activity was classifiable under ‘Programme Producer services’ and not under ‘Business Support Services’.
ESPN Software India (P) Ltd. v. CST [(2014) 35 STR 927 (Tri.-Del.)].
Real Estate Agent Service
44 The appellant was engaged in the business of purchasing and selling of land suitable for wind farm projects. The department alleged that the appellant was liable to service tax under Real Estate Agent Service since it acquired land on behalf of the manufacturer of wind turbine generators. The Hon’ble Tribunal observed that the appellant acquired and sold land in its own name and also the cost of acquisition and other related costs were borne by it which were later recovered from customers. It was also held that notwithstanding the agreement with SEL, legal transaction indicating assessee as purchaser/ seller of land could not be washed away. Further, the word “commission” in agreement facilitating 11% on total cost of land could not negate legality of transaction and hence, the consideration received was not liable to service tax.
Sarjan Realties Ltd. v. CCE, Pune 2014 (36) STR 877 (Tri.-Mumbai)
Renting of Immovable Property Service
45 The renting of buildings for a hotel was excluded from the definition of ‘immovable property’ under Explanation 1 clause (d) and hence would not be liable for service tax under the category of ‘Renting of immovable property services’
Jai Maha Hotels Pvt. Limited v. CCE (2014) 36 STR 669 (Tri.-Del.)
46 The appellant was engaged in activity of granting licence to set up and operate duty-free shops within Airport premises, with stipulation of fixed monthly licence fees and share of gross revenue generated by product sold. The issue which arose before the High Court was whether such activity would be considered as service liable to service tax. The Hon’ble High Court observed that original agreements were entered on 9-11- 2006, but appellant closed their operation w.e.f. 30-6-2010. The department had sought to tax them under ‘Airport Services’. The Hon’ble High Court held that, such activity was liable under ‘Renting of Immovable Property Services’ w.e.f. 1-6-2007 and prior to that it was not liable to service tax. It was also held that, splitting of consideration by itself could not lead to conclusion that, licence fee was not a consideration for use of premises. Lease rentals even though based on revenue, could not alter nature of transaction or interest in immovable property created in favour of lessee/ licencee.
Airport Retail Pvt. Ltd. v. UOI 2014 (35) STR 659 (Del.)
Stock Broker Service
47 It was held by the Hon’ble Tribunal that delayed payment charges (DPC) collected by the appellant was not liable to service tax as it was not on account of any stock broking service, but it was collected only in case of overdue payments, as penal interest for compensation of assessee for payments already made by it to the Exchange on behalf of the client. It was further held that, no service tax was payable on services provided by sub-brokers in the State of J&K to clients situated therein even though accounts of such services were being maintained in Delhi NCR offices. Such accounts were maintained in Delhi for the sake of facility and maintaining control on its office.
Religare Securities Ltd. v. CST, Delhi 2014 (36) STR 937 (Tri.-Del.)
Storage and Warehousing Service
48 The assessee, a manufacturer of gases had paid to the overseas supplier of such gases rentals for use of vacuum insulated tanks used for transportation of liquid helium imported by it from the supplier. The revenue had sought to demand service tax from the manufacturer on the ground that overseas exporter had provided storage and warehousing services to the assessee by invoking the reverse charge mechanism. On appeal the Hon’ble Tribunal observed that during transportation, the overseas supplier had no control over the tanks and hence it failed to satisfy the essential test of ‘Storage & warehouse keeper services’ viz., providing for security of goods, stacking, loading/unloading of the goods in the storage area. Accordingly, it held that the overseas supplier of helium cannot be held to be a storage and warehouse keeper and hence no service tax could be demanded from the assessee under the reverse charge mechanism
Inox Air Products Ltd v. CCE [2014] 36 STR 391 (Tri.-Mum.)
Sub-contractor Services
49 The Hon’ble Tribunal held that post introduction of the Service Tax Credit Rules, 2002/ CENVAT Credit Rules, 2004, a subcontractor was not exempt from payment of service tax even when the main contractor had discharged service tax liability on the entire value of services including on the value of services rendered by the sub-contractor.
Sunil Hi tech Engineering Ltd. v. CCE [2014] 36 STR 408 (Tri.-Mumbai)
Supply of tangible goods for use Service 50 The appellant had entered into agreement with owners of Offshore Supply Vessels (OSVs) for supply of OSVs for deployment by appellant in eastern and western coasts of India in their offshore oil and exploitation sites. The Hon’ble Tribunal held that right of possession and effective control of such machinery, equipment and appliances were not parted with and thus, such activity came under the scope of supply of tangible goods for use service. It was further held that vessels could not be considered as vessels within the meaning appearing in Notification No. 1/2002 ST dated 1-3-2002. It was also held that, from 1-3-2002 to 7-7-2009, Finance Act, 1994 was extended only to designated areas in Continental Shelf and Exclusive Economic Zone of India and since vessels were plying from Karnataka Port to installations / structures through sea which was not in India and thus was non-designated area.
Reliance Industries Ltd. v. CCE&ST LTU Mumbai 2014 (36) STR 820 (Tri.-Mumbai)
Tour Operator Services
51 The assessee operated and facilitated outbound tours whereby Indian tourists were provided services in relation to tourism outside the Indian territory, to visit foreign locales. The assessee’s activity of outbound tourism consist of operating tours but not in a tourist vehicle, which is a necessary requirement to come within the ambit of service tax under Tour Operator Services. Therefore the Hon’ble Tribunal held that the outbound tourism was not liable for service tax since it was clearly outside the locus of the definition of ‘Tour operator.’ Further the consideration received for operating and arranging outbound tours was not liable to levy of Service tax under the provisions of the Act since the service was provided and consumed beyond the Indian Territory where the levy did not operate.
Cox & Kings India Ltd v. CST, New Delhi [(2014) 35 STR 817 (Tri.-Del.)].
Works Contract
52 Services of civil or industrial construction or erection, installation and commissioning provided as a single indivisible contract would attract service tax even for the period prior to 1-6- 2007 i.e. the date on which works contract services were introduced.
CCE v. Gopal Enterprises [2014] 36 STR 674 (Tri.- Del.)
53 Under a contract dated 14-2-2007 for expansion of an oil refinery of its client, the execution of which began in July, 2007 the assessee had received advance prior to 1-6-2007 (the date on which “works contract services” came into force) and had paid service tax post 1-6-2007 under the Works Contract Composition Scheme Rules, 2007 @ 2% of the amount received and disclosed the same in the returns, the Hon’ble Tribunal held that the advances prior to 1-6-2007 which tantamount to provision of service prior to 1-6-2007 would not be entitled to the composition scheme since the services at that point of time were not classifiable under the “Works contract services” but were classifiable under “commercial/industrial construction services”. However, since the amounts were disclosed in the ST3 returns and the payment of taxes were made under the composition scheme as per the returns, the Hon’ble Tribunal held that the extended period of limitation was not invocable and demands were barred by limitation.
Essar Projects Ltd. v. CCE & ST (2014) 36 STR 681 (Tri.-Ahmd.)
54 The Hon’ble Tribunal had to deal with an issue as to whether separate contracts entered into with two different parties, one for supply of goods and other for provision of services by different parties for single turnkey contract, should be construed as a single composite contract. The Hon’ble Tribunal observed that activities undertaken were in the nature of ‘works contract’ and therefore, the service portion in such works contract would be subject to service tax. It also held that a whole contract had been awarded by the appellant to the contractor and the contractor had intentionally split the said contract into two. Thus, it held that the two contracts should be read together as a single composite contract.
Gupta Energy Pvt. Ltd. v. CCE, Nagpur [TS-410- Tribunal-2014-ST]
B] Valuation
55 The Hon’ble Tribunal held that unless the invoice indicated the description, quantity of goods sold, its unit rate and the value of goods separately, the conditions of the Notification No. 12/2003 dated 1-7-2003 would not be satisfied and hence, the assessee could not claim deduction of value of materials under the said notification and was liable to pay service tax on the entire invoice value.
Laxmi Tyres v. CCE [2014] 36 STR 364 (Tri.- Mumbai)
56 Where the value of the goods and materials which were used for the repair of the transformers stood separately disclosed in the agreements and were also separately mentioned in the invoices raised by the assessee, the Hon’ble Tribunal held that the value of goods sold would not be includible in the value of taxable service in terms of Notification No.12/2013 dated 20- 6-2003 and accordingly no service tax could be demanded from the assessee on the value of the goods
J.P. Transformers v. CCE & ST [2014] 36 STR 471 (Tri.-Del.)
57 Relying on Safety Retreading Co. Pvt. Ltd. v. Commissioner (2012) 26 STR 225 (Tri.), the Hon’ble Tribunal held on facts that in the case of rebuilding of old worn out rollers, liners, etc. which involved putting flux core wire on old worn out rollers, liners, tyres on cement plants, it was held that the value of materials could not be reduced from the value of taxable service. On facts however, the demands were confined to the normal period of limitation and also penalties were set aside.
Ador Fontech Ltd. v. CCE, [2014] 36 STR 146 (Tri.– Mum.)
58 The Hon’ble Tribunal relying on the decision in Intercontinental Consultants and Technocrats Pvt. Ltd. (2013) 29 STR 9 (Del.) held that reimbursement of expenses incurred for marketing of the TV channels for overseas service recipients were not liable for service tax and therefore could not form part of the gross amount.
ESPN Software India (P) Ltd. v. CST [(2014) 35 STR 927 (Tri.-Del.)]
59 It was held by the Hon’ble Tribunal that adjustment of non-refundable registration fees towards first purchase made by clients ought to be added to gross value of taxable service.
CST, Mumbai v. Diotech India Ltd. 2014 (36) STR 96 (Tri.-Mumbai)
60 Free supply of diesel by service recipient to service provider was not includible in gross consideration received by service provider for rendition of taxable services as decided by Larger Bench of this Hon’ble Tribunal in the case of M/s. Bhayana Builders Pvt. Ltd. v. CST [2013] 32 STR 49.
Gurmehar Construction v. CCE (2014) 36 STR 545 (Tri.-Del.)
61 The assessee, an instrumentality of the Government raised funds through issue of its own bonds and kept it in its public deposit account and not the Consolidated Fund of the State under Article 266 of the Constitution. The State Government reimbursed the administrative expenses incurred by the assessee for issuing bonds as a percentage of the loan raised which was sought to be taxed under the category of ‘Banking and Financial Services’ on the ground that the assessee acted as an intermediary for raising loans for the State Government by issuing bonds. The Hon’ble Tribunal held that since the bonds were issued in its own name and also deposited in its own public deposit account, there was no rendition of any taxable service by the assessee to the State Government and the administrative expenses reimbursed were in the nature of a grant for the financial stability of the assessee which was an instrumentality of the State. Hence, no service tax was payable on the administrative expenses reimbursed
Rajasthan State Indl. Devel. & Investment Corp. Ltd. v. CCE [2014] 36 STR 653 (Tri.-Del.)
C] CENVAT
62 An assessee could claim CENVAT credit paid on GTA services only if the amount paid for the service formed integral part of the price of the goods [Circular No. 97/8/2007 dated 23-8-2007].
Lafarge India Ltd., v. CCE [(2014) 35 STR 645 (Chhattisgarh)
63 The Hon’ble High Court has held that any service availed by the exporters until the goods left India from the port were the service used in relation to clearance of final products up to the place of removal and port of shipment was considered as place of removal. Therefore, credit was allowed to the assessee.
Commissioner v. Dynamic Industries Ltd. [2014 (35) STR 674 (Guj.)]
64 Hon’ble High Court did not allow CENVAT Credit on Overseas Commission Agent’s Service. It placed reliance on Commissioner v. Cadila Healthcare Ltd., 2013 (30) S.T.R. 3 (Guj).
Commissioner v. Dynamic Industries Ltd., [2014] 35 STR 674 (Guj.)
65 Since there was no documentary evidence or contract to the effect that Customs House Agent (CHA) was working as an agent of the assessee and that there was no mention in the debit note that service was being provided by the CHA for the assessee, the Hon’ble Tribunal held that the assessee had not directly availed services from Kandla Dock Labour Board/ Kandla Port Trust and hence the credit was not admissible.
Friends & Friends Shipping Pvt. Ltd. v. CE & ST, Rajkot [2014] 35 STR 811 (Tri.-Ahmd.)
66 The claim of CENVAT credit of duty paid on towers and parts thereof/ printers/ pre-fabricated buildings (PFB) by the assessee, a cellular service provider, was rejected by the Hon’ble High Court answering the following substantial questions of law–
• Towers and parts thereof/printers/PFB were not capital goods under Rule 2(a)(A) of the CENVAT Credit Rules, 2004.
• Towers and parts thereof/printers/PFB were fastened to the earth and hence were immovable property and could not be goods so as to be classified as inputs under Rule 2(k) of the CENVAT Credit Rules, 2004.
Assessee’s contention that towers and parts thereof/ printers/PFB was an accessory or part of the antenna which were capital goods under Rule 2(a)(A) of the CENVAT Credit Rules, 2004 was turned down by the Hon’ble Tribunal.
Bharti Airtel Ltd. v. CCE, [2014] 35 STR 865 (Mum.)
67 A Circular beneficial to the assessee would have a retrospective effect in view of the Hon’ble Supreme Court decision in M/s. Suchitra Components Ltd. v. Commissioner, (2008) 11 STR 430 (S.C.) and hence benefit of Circular No. 868/6/2008-C.X. dated 9-5-2008 clarifying that export services were not ‘exempted services’ for the purpose of CENVAT credit was available to the exports for the period June to October, 2007.
L & T Sargent & Lundy Ltd. v. CCE, [2014] 35 STR 945 (Tri.-Ahmd.)
68 CENVAT credit was eligible in a case where service tax though not payable by the assessee was actually paid by him.
Sarda Energy & Minerals Ltd. v. CCE [2014] 35 STR 946 (Tri.-Del.)
69 Input service credit of commission paid for procuring sales orders was eligible–
• Prior to 1-4-2011 – as procuring sales was an activity in relation to the business of manufacture of final products; and
• Post 1-4-2011 – since it is covered under the term “advertisement or sales promotion” appearing in the definition of input service [Reliance on Circular No. 943/4/2011- CX dated 29-4-2011].
Birla Corporation Ltd. v. CCE [2014] 35 STR 977 (Tri.-Del.)
70 The Hon’ble Tribunal held that the appellant could not take credit on the basis of documents issued by the premises not registered as an ‘Input Service Distributor’ (ISD) under Cenvat Credit Rules, 2004. Further, it also held that since the appellant never brought to the knowledge of department that CENVAT credit was taken on documents issued by unregistered ISD, the extended period of limitation was invocable.
Market Creators Ltd. v. CCE&ST, Vadodara 2014 (36) STR 386 (Tri.-Ahmd.)
71 The Hon’ble Tribunal allowed CENVAT credit of service tax paid on fumigation expenses considering them as in the nature of packing expenses.
Venus Wire Industries Pvt. Ltd. v. CCE, Mumbai-III 2014 (36) STR 475 (Tri.-Mumbai)
72 It was held by the Hon’ble Tribunal that commission paid for selling activity was part of sales promotion and credit of the same was admissible as category of sale promotion specifically covered under definition of input service.
CCE, Surat v. Remi Metals Gujarat Ltd. 2014 (36) STR 158 (Tri.-Ahmd.)
73 The Hon’ble Tribunal held that CENVAT credit of service tax paid on rent, security and maintenance service was admissible even though the said services were rendered beyond the place of manufacture.
CCE, Vadodara-II v. Siemens Healthcare Diagnostic Ltd. 2014 (36) STR 192 (Tri.- Ahmd.)
74 CENVAT credit of service tax paid on photostat services was allowed by the Hon’ble Tribunal as the services were necessary for the business of the assessee.
Punjab Alkalies & Chemicals Ltd. v. CCE&ST Chandigarh-II 2014 (36) STR 688 (Tri.-Del.)
75 The Hon’ble Tribunal held that trading activity was not a service prior to 1-4-2011 and hence, it could not be treated as exempt service. Thus, credit thereon was not allowed. For period prior to 1-4-2011, credit would be apportioned with reference to turnover of manufactured cars and turnover of traded cars.
Mercedez Benz India P. Ltd. v. CCE, Pune-I 2014 (36) STR 704 (Tri.-Mum.)
76 CENVAT credit of service tax paid was allowed by the Hon’ble Tribunal on clearing charges paid to Customs’ House Agents, commission on export sale, material handling charges, terminal handling charges, bank commission charges, aviation charges and courier charges. The same was allowed as they were used in the course of export of goods where place of removal was the port.
JSW Steel Ltd. v. CCE, Thane-I 2014 (36) STR 801 (Tri.-Mum.)
77 The department denied credit on the ground that documents for availing credit issued in the name of head office and not the factory. The Hon’ble Tribunal held that credit was available qua the manufacturer and not qua the factory. Further, the basic condition for distribution of credit was that head office received invoices towards purchase of input service and pays service tax. Being a registered ISD, they were entitled to distribute credit to its manufacturing plant. Since, the credit availed by the appellant reflected in statutory records, no suppression of facts or misstatement with mala fide intention attributable to invoke longer period of limitation.
Moser Baer India Ltd. v. CCE, Noida 2014 (36) STR 815 (Tri.-Del.)
78 CENVAT credit of service tax paid on repair & maintenance service received by branch office but paid by head office was denied by the department on the ground that invoices for services were in the name of branch office. The Hon’ble Tribunal held that receipt of service and eligibility to CENVAT credit was not disputed and objection of department rectified by producing certificate from service provider that address may be read as head office and therefore there was no valid reasons for denial of credit.
Rajasthan Diesel Sales & Service v. CCE, Jaipur II 2014 (36) STR 832 (Tri.-Del.)
79 CENVAT credit of GTA service utilised for clearance of tubes and flaps in replacement market was claimed by the appellant being part of trading activity. The Hon’ble Tribunal held that proportionate credit attributable to trading arrived at in accordance with Standard Accounting Principle was required to be reversed. It was further held that if GTA service credit taken was reflected in returns and process of trading activity was also intimated to department there was no suppression or misdeclaration with intent to evade duty.
Apollo Tyres Ltd. v. CCEC&ST, Calicut 2014 (36) STR 835 (Tri.-Bang.)
80 The Hon’ble Tribunal allowed CENVAT credit of service tax paid on reinsurance service procured by the appellant from overseas company as reinsurance was a statutory obligation and was coterminous with the insurance policy. The percentage of insurance to be reinsured was directly connected to the premium collected from the persons who are insured with insurer and it was basically a transfer of a portion of the risk and therefore, it could be said that reinsurer was providing the service to insurance company when he accepted to reinsure a portion of insurance undertaken by the insurer.
PNB Metlife India Insurance Co. Ltd. v. CCEST&C, Bengaluru 2014 (36) STR 891 (Tri.-Bang.)
81 The Hon’ble High Court held that the CENVAT credit of service tax paid on Group Accident and group medical policies for its employees was admissible under Rule 2(l)(i) of CENVAT Credit Rules, 2004.
CST, Bengaluru v. Team Lease Services Pvt. Ltd. 2014 (36) STR 543 (Kar.)
82 The Hon’ble Tribunal held that denial of credit for want of registration with Central Excise Department was not sustainable as the entire exercise being done for setting up of factory for manufacturing of excisable goods that can be done so only when assessee erects, installs and commission capital goods with help of various agencies.
Beico Industries Pvt. Ltd. v. CCE&ST, Vapi 2014 (36) STR 551 (Tri.-Ahmd.)
83 The Hon’ble Tribunal allowed CENVAT credit of service tax paid on shipping service, documentation charges, terminal handling charges in respect of exported goods. It was further held that the assessee had two options whereby they could either take credit instead of refund when the service related to the export. The Notification which permitted refund did not debar availment of credit in case refund was not claimed. The assessee could not be pressurized to claim refund only.
Jotindra Steel & Tubes Ltd. v. CCE, Delhi-IV 2014 (36) STR 672 (Tri.-Del.)
84 The Hon’ble Tribunal allowed CENVAT credit of service tax paid on insurance for workers as the same had an integral connection with the manufacture.
Binani Cement Ltd. v. CCE&ST, Jaipur-II 2014 (36) STR 676 (Tri.-Del.)
85 The appellant, as per terms of warranty, was under obligation to provide repair and maintenance service to its customers. It had claimed CENVAT credit of service tax paid on repair & maintenance service during warranty period. The Hon’ble Tribunal allowing the contention of the appellant held that it was entitled to claim such credit which was after sale service charges and value of goods was included such warranty charges.
Gujarat Forging Ltd. v. CCE, Rajkot 2014 (36) STR 677 (Tri.-Ahmd.)
86 The Hon’ble High Court observed that there was no provision in the Central Excise Act or Rules or Circular to hold that, in case the duty was charged on specified rate, then the place of removal would be factory gate. If legislature or Central Government or CBEC wanted the ‘place of removal’ to be factory gate, they could have defined it in Central Excise Act or Rules or Circulars. The presumption by Hon’ble Tribunal that, place of removal was factory gate of manufacturer in case the Excise duty was charged on specified rate was incorrect. Hence the Hon’ble High Court held that it was to be decided on facts and circumstances of the each case as to what was the place of removal.
Ultratech Cements Ltd. v. CCE, Raipur 2014 (34) STR 641 (Chhattisgarh)
87 The Hon’ble Tribunal observed that dealer was registered with department only after physically visiting the premises and assessee proved transportation of goods, service tax paid on GTA service and the department had not established any alternative source of procurement of inputs. Since the appellant procured inputs from registered dealer, reflected the same in RG-23A Part-I, utilized the same in manufacture of final product cleared on payment of duty, it was held that assessee was entitled for benefit of CENVAT credit.
F.M. Steel Alloys (P) Ltd. v. CCE, Chandigarh – I 2014 (35) STR 767 (Tribunal – Delhi)
D] Others
Appeal
88 An additional ground pertaining to lack of jurisdiction in issuance of the show cause notice which was neither raised at the time of adjudication nor before the lower Appellate Authority could not be entertained.
Chirspal Shipping v. CCE [2014] 35 STR 1000 (Tri.- Mumbai)].
Condonation of delay
89 Delay of 285 days and 250 days in filing two appeals respectively was condoned by the Hon’ble Tribunal considering the fact that an appeal on a similar issue of the applicant was already allowed by the Hon’ble Tribunal and there was no gross negligence or deliberate inaction on the part of the applicant to delay the filing of the appeal.
ARR Enterprise v. CCE [(2014) 35 STR 1004 (Tri.- Chennai)]
Demand
90 The Hon’ble Tribunal had set aside the demand raised by the Revenue on royalty for technical know-how on the grounds that –
• Supply of technical know-how does not fall under the category of ‘Consulting Engineer’s Service’;
• Rule 6 of the Service Tax Rules, 1994 was not applicable as the foreign service provider has not authorised the Respondent to pay service tax on its behalf.
Section 68 of the Act r/w Rule 6 of the Service Tax Rules, 1994 would apply only to services rendered in India by a non-resident service provider who does not have an office in India and therefore technical know-how that has been provided by foreign service provider was a service provided from abroad and received in India and receipt of service was taxable only from 18-4-2006.
CCE v. Gabriel India Ltd. [(2014) 35 STR 967 (Tri.- Mumbai)]
91 The assessee, a builder had due to prevalence of confusion (created by DGST Circular dated 16-2-2006) as to the leviability of service tax on construction of flats collected sums from prospective buyers representing as contingent liability towards service tax if any payable to the department but had refunded the same along with interest to the buyers in pursuance of a Board Circular No. 108/2/2009- ST dated 29-1-2009. The Hon’ble Tribunal held that provisions of section 73A(2) would not be attracted since –
• The amount was collected in pursuance of DGST Circular dated 16-2-2006 and he cannot be blamed for believing that it was required to be collected;
• The amounts were collected as deposit towards contingent liability and not as ‘service tax’ per se.
Neel Sidhi Enterprises v. CST [2014] 36 STR 346 (Tri.-Mum.)
92 Show Cause Notice issued after 10-9-2014 (when provisions changed) in respect of a period prior 10-9-2004, under the erstwhile provisions for issuing a show cause notice [73 (i)(a)], it was held that the demands were unsustainable. CST v. The Peoples Choice [2014] 36 STR 10 (Kar.) 93 The Adjudicating Authority confirmed the demand under ‘Cargo handling service’ whereas the appellant was not put to notice under such category but under category ‘transport of goods by air service’. The Hon’ble Tribunal held that the demand was beyond the scope of the show cause notice and hence, was not sustainable.
DHL Logistics Pvt. Ltd. v. CST, Mumbai-I 2014 (36) STR 874 (Tri.-Mumbai)
Export
94 Prior to 18-4-2006 the exports exemption under the Export Rules was available even if the amounts for the rendition of service were not received in foreign currency.
ESPN Software India (P) Ltd. v. CST [(2014) 35 STR 927 (Tri.-Del.)].
95 Where the assessee, a subsidiary of an overseas holding company provided services of evaluating prospective customers in India, collection of information to enable the overseas parent to design product for the customer in India, advising holding company, tracking delivery schedules, etc. which were liable for service tax under ‘Business support service’, the Hon’ble Tribunal held that the services being meant for use by overseas holding company which was the service recipient would be considered as export of services under Rule 3(1) (iii) of the Export of Service Rules, 2005 and hence would not be liable to service tax
Gecas Services India Pvt. Ltd. v. CST [2014] 36 STR 556 (Tri.-Del.)
96 Where for the periods 1-7-2003 to 30-9-2007 the assessee tested samples received from sister concerns located abroad and sent the research reports outside India, and received payment in convertible foreign exchange, the Hon’ble Tribunal held that:
• For period up to 14-3-2005, the service were exempted under Notification No. 21/2003- ST dated 20th November, 2003 which exempted services in respect of which money was received in convertible foreign exchange; and
• For the period from 15-3-2005, service was to be considered as export of service under Rule 3(1)(ii) r/w Rule 3(2) of Export of Service Rules, 2005 since part performance was abroad (the research report being sent abroad) relying on Hon’ble Tribunal’s judgment in B.A. Research India Ltd. (2010) 18 STR 439 (Tribunal). Accordingly no service tax was held to be payable.
CCE v. Nestle India Ltd. [2014] 36 STR 563 (Tri.- Del.)
97 The Hon’ble Tribunal held that since the service provider (subsidiary of the assessee) was located outside India and the customer was also located outside India, the onshore services [output services] were performed outside India. Hence it could not be said that the services were provided from India and were used outside India – a necessary condition for an output service to be considered as exports. This condition was omitted only w.e.f. 27-2-2010. Accordingly it was held that
• In respect of services provided prior to 27-2-2010 since the condition of export was not satisfied, the assessee would not be eligible for claiming refund.
• In respect of services provided post 27-2-2010, since the only condition for claiming exports, viz., receipt of consideration in foreign exchange, was satisfied, the assessee would be eligible to claim refund.
Tech Mahindra Ltd. v. CCE (2014) 36 STR 332 (Tri.- Mum.) affirmed in [2014] 36 STR 241 (Bom.)
98 The Hon’ble Tribunal held that marketing services provided by the appellant to its parent company located outside India would qualify as ‘export’ under the provisions of Export of Service Rules, 2005. It was observed that the condition to qualify as ‘export’ of service got satisfied in as much as the service provided by the appellant to its overseas entity was used outside India for the purpose of sale of their products in India.
Microsoft Corporation (I)(P) Ltd. v. C.S.T. [TS-465- Tribunal-2014-ST]
99 The Hon’ble Tribunal held that services provided to the overseas customer in India with respect to money transfer from abroad to a person situated in India would qualify as ‘export’. It was observed that services were provided by the appellant to the overseas entity and not to any Indian customers and the payment for such services were also received from the overseas entity.
Wall Street Finance Ltd. and Weizman Forex Ltd. v. C.S.T [TS- 481-Tribunal-2014-ST]
Interest
100 No interest under section 75 was payable when no final assessment has been passed by the Department and shortfall in tax was paid before the final assessment.
Canara Bank v. CST [(2014) 35 STR 981 (Tri.-Bang.)]
101 Prior to 10-9-2004 (which was the period of dispute) what was required was reason to believe on the part of the Assistant/Deputy Commissioner that on account of omission or failure on the part of the assessee to file return u/s. 70 for any prescribed period or to disclose wholly or truly all the material facts required for verification of assessment u/s. 71, some value of the taxable service has escaped assessment or has been under-assessed or service tax has not been paid or has been short-paid or any sum has erroneously been refunded. Since the assessee was not filing any return and had not even taken any registration and hence in terms of s. 73(1)(a) as it stood during that period, longer limitation has been correctly invoked.
Masicon Financial Services Pvt. Ltd. v. CCE [2014] 36 STR 630 (Tri.- Del.)
Limitation
102 There was no material to indicate suppression on the part of the assessee since it has shown availment of CENVAT credit in Parts IV and V of ER-1 returns filed by it, extended period of limitation was not invocable.
Commissioner v. Dynamic Industries Ltd. [2014 (35) STR 674 (Guj.)]
103 Where the SCN did not contain any allegation as to suppression of facts for nonpayment of service tax on lease premium, but was only based on the audit report of the CERA team which in itself appeared to be illegal and unsustainable, it was held that the extended period of limitation cannot be invoked.
Infinity Infotech Parks Ltd. v. Union of India [2014] 36 STR 37 (Cal.)
104 The longer limitation period for demand of non-paid service tax under proviso to Section 73(1) would not be invocable since the assessee was a public sector undertaking and the allegation of the wilful misstatement, suppression of facts or deliberate contravention of the rules to evade the payment of service tax could not be made
CCE v. Bharat Yantra Nigam Ltd. [2014] 36 STR 554 (Tri.-Del.)
105 Where there was a dispute since 2004 whether the activity of providing place, seating arrangement, etc. to the finance institutions by automobile dealers on commission basis falls under the category of Business Auxiliary Services which litigation travelled up to the Hon’ble Tribunal, extended period of limitation was not invocable
CCE v. Raj Auto [2014] 36 STR 566 (Tri.-Mum.)
106 The Hon’ble High Court in this case held that section 73(1) clearly indicated the circumstances under which limitation period of one year or five years would apply. If once the Hon’ble Tribunal decides that the demand was barred by limitation, then even if it was in order, the Department could not collect the amount of service tax and impose penalty. Since the Hon’ble Tribunal had not decided the issue of limitation, matter was remitted back to the Hon’ble Tribunal.
Centre for Dev. of Imaging Technology v. CST Thiruvananthapuram 2014 (35) STR 723 (Ker.)
Rate of tax
107 The Hon’ble Tribunal held that the taxable event was the date of rendition of service and not the date of raising the invoice or receipt of payment and accordingly the rate of service tax as on the date of rendition of service was applicable.
CST v. Epic India Pvt. Ltd. [(2014) 35 STR 948 (Tri.- Del.)]
108 The rate of tax applicable was the rate prevailing on the date of rendering of services and not the rate prevailing on the date of receipt of payments.
CST v. Union Bank of India [2014] 36 STR 470 (Tri.- Mum.)
109 It was held by the Hon’ble Tribunal that rate of tax prevailing at the time of rendition of taxable service was applicable and not the rate of tax in force at the time of receipt of payments for such services.
CST, New Delhi v. Lea Associates South Asia P. Ltd. 2014 (36) STR 909 (Tri.-Del.)
Refund
110 The Hon’ble Tribunal held that as per Notification 41/2007, refund was granted to exporters on taxable services used for export and there was no requirement for verification of registration certificate of the supplied service. Therefore, the assessee being a service provider who provided for various services to the exporter but had registration of only one service was granted refund.
Commissioner v. Adani Enterprise Ltd. [(2014) 35 STR 741 (Guj.)]
111 In first round of litigation, Commissioner (Appeals) ordered that, refund was to be sanctioned considering supplies made to 100 per cent EOU as deemed exports and matter was remanded back for quantification. Commissioner (Appeals) in second round held that, refund granted by Adjudicating Authority in second round was not legal and proper and was to be recalled. The Hon’ble Tribunal held the impugned order as not maintainable since the issue on merits had already attained finality in the first round of litigation itself in the absence of any appeal by the Revenue against the order of the Commissioner (Appeals).
Arkay Glenrock (P) Ltd., Unit-II v. CCE [(2014) 35 STR 953 (Tri.-Chennai)
112 The Hon’ble Tribunal allowing the refund claim of the assessee held that the period of one year for filing the refund claim should be reckoned as per Clause (f) of Explanation B to section 11B of the Central Excise Act, 1944 viz., from the date of payment of service tax i.e. 2-4-2008 and refund claim made on 19-3-2009 was not time barred.
K.K.S.K. Leather Processors (P) Ltd. v. C.C., C. Ex &ST [(2014) 35 STR 956 (Tri.-Chennai)]
113 The refund application filed under Notification Nos. 9/2009-ST and 17/2011-ST was rejected by the Hon’ble Tribunal as the appellant failed to submit certain documents since the requirements of the said notification were not complied with.
IFGL Exports Ltd. v. CCE & ST, Rajkot 2014 (36) STR 311 (Tri.-Ahmd.)
114 The appellant paid service tax on CHA services and filed a refund claim under Notification No. 9/2009-ST after 2 years which was allowed by Hon’ble Commissioner (Appeals). Aggrieved, the department filed an appeal against this action of the Commissioner. The Hon’ble Tribunal held that in view of clause 2(f) of Notification No. 9/2009-ST, claim for refund should be filed within six months or such extended period as AC/DC may permit. Since, the assessee was eligible for refund and it was an initial period of implementation of the new procedure, observations of Hon’ble Commissioner (Appeals) were valid and in accordance with law in condoning delay.
CCEC&ST v. Divis Laboratories Ltd. 2014 (36) STR 398 (Tri.- Bang.)
115 The assessee, an exporter of goods, claimed refund of service tax paid on overseas commission [on reverse charge basis] under Notification No 41/2007-S.T. read with Notification No. 32/2008-S.T. on last day but his claim was returned for not submitting the proof of service tax payment along with bank realisation certificate. Subsequently on another date the appellant submitted these documents along with the refund claim but the same was rejected as the date was beyond the time period for filing the claim. The Hon’ble Tribunal allowed the refund claim and stated that the date of first filing of refund claim was to be reckoned which was on time. It further observed that instead of returning the refund claim, the lower authorities could have asked the assessee to file relevant documents which would have been compiled by the assessee and in that case refund claim was well within the time.
R.L Fine Chem v. CCE (Appeals), Bengaluru [(2014) 35 STR 814 (Tri.-Bengaluru)]
116 Refund under Notification No. 41/2007-ST was allowed by the Hon’ble Tribunal on export of goods on the ground that in the invoice of the Customs’ House Agent, there was the description of goods exported. The Hon’ble Tribunal observed that refund could not be denied on the sole ground that the agreement between the foreign buyer and appellant was not produced.
Khosla Profile Pvt. Ltd. v. CCE, Thane-I 2014 (36) STR 592 (Tri.-Mumbai.)
Revision
117 Where the assessee, a charitable trust, was providing coaching and training services, it was held by the Additional Commissioner that it was not liable for service tax on the ground that –
• The assessee was not a commercial organisation. They were vocational training institutes exempt under Notification No. 24/2004 dated 10-9-2004.
However, where the Commissioner had sought to revise the Additional Commissioner’s order, without any finding that they were ineligible for exemption under Notification No. 24/2004, it was held by the Hon’ble Tribunal that the order passed in revision was not sustainable.
Everest Educational Charitable Trust v. CST [2014] 36 STR 79 (Tri.-Chennai)
Show Cause Notice
118 The Hon’ble Tribunal set aside the demands on a preliminary ground that the SCN did not specify the precise sub-clause (but not on merits) with a liberty to the revenue to proceed to act in accordance with law. On appeal, the High Court held –
• Anyone reading the said sub-clauses along with the assertions made in the notice would understand that reference was with regard to sub-clauses (vi) and (vii); and
• The assessee was not in dark or unaware as to what he had to answer and argue. The ambiguity in such circumstances would have to be removed at the time of oral hearing.
Hence the Hon’ble High Court held that the SCN did not suffer from any vice and remanded the case back to the Tribunal to decide on merits
CST v. ITC Ltd. [2014] 36 STR 481 (Del.) Others
119 The Hon’ble Calcutta High Court, in the facts of the case, held that the audit of the appellant (a non-government company) by Central Excise Revenue Audit (CERA) team was illegal and unsustainable since CERA team of CAG of India could inspect records only if the same were lying at premises of Government Company or a company which had received any grant/loans/aid from the Government or any Government undertaking, or when there was a request for the same from President of India or Governor of State.
Infinity Infotech Parks Ltd. v. UOI 2014 (36) STR 37 (Cal.)
120 In the instant case, the issue before the Hon’ble High Court was whether services provided in relation to serving of food and beverages in air conditioned restaurant, hotel, inn, guest house, etc. would be chargeable to service tax. Dismissing the Department’s appeal, it was held that after the 46th amendment in the Constitution, supply of food and other articles for human consumption in restaurants had been categorically enumerated as ‘deemed sale’. Thus, it was held that states alone had legislative competence to impose tax on whole consideration received for such sales and Union could not characterize the same transaction as ‘service’ for levy of service tax.
Union of India & Others v. M/s. Kerala Bar Hotels Association [TS-501-HC-2014(KER)-ST]
121 The appellant contended that services provided to them by the foreign service providers were outside India and also consumed/received outside India. Thus, it could not attract service tax as import of service. The Hon’ble Tribunal rejected this contention and held that for services specified in Rule 3 of the Import of Service Rules, the place of consumption/receipt of service was immaterial, once the recipient of such service was located in India.
Gujarat Borosil Ltd. v. CCE&ST, Surat 2014 (36) STR 808 (Tri.-Ahmd.)
122 The Hon’ble Tribunal held that section 85(4) authorised the Commissioner (Appeals) to hear and determine an appeal and pass such order as “he may think fit”. Thus, it was within his powers to remand matter to the primary authority.
CCE, Raipur v. Anand Colour Lab 2014 (36) STR 915 (Tri.-Del.)
123 Where the appellant, a steamer agent, had collected extra amounts towards statutory levies reimbursable from the client, the Hon’ble Tribunal held that service tax was payable on such extra amount.
Chirspal Shipping v. CCE [2014] 35 STR 1000 (Tri.- Mumbai)].
124 The appellant availed CENVAT credit of service tax paid on digital photographs. Such photographs were required for brochures/ catalogues for sales promotion. The department denied credit of the same on the ground that the appellant did not disclose in its returns that credit had been availed in respect of digital photographs. The Hon’ble Tribunal held that there was no column in return to show the nature of input service and thus, non-disclosure of facts not required to be disclosed in law could not be attributed suppression. It further held that when credit was denied on photographs used for brochure meant for sale, production of brochure before Commissioner (Appeals) could not be ‘additional evidence’.
Saboo Coatings Ltd. v. CCE [2014] 36 STR 447 (Tri.- Del.)
Sunil Moti Lala