1. Services:
1.1 Pearey Lal Bhawan Association vs. Satya Developers Pvt. Ltd. 2011 (23) STR 213 (Del.)
In this case the Petitioner leased its premises to respondent and agreement entered before 01/06/2007, provided that lessor was liable for taxes. It is held that, service tax is specie of levy which parties had not envisioned while entering into their arrangement. The object of levy of service tax is a service and levy is indirect, meaning thereby that user has to bear it, by including it in cost of service therefore; the lessee is liable to pay service tax to the petitioner. The High Court relied on Section 12A of CEA, 1944 prescribing that provider of goods/service has to indicate quantum of tax in invoice, Section 12B providing that seller is deemed to have passed on full incidence of duty/tax to buyer and Section 64 of Sale of Goods Act, 1930 prescribing that in case of imposition of tax after making of a contract, seller is entitled to be paid such tax.
1.2 Instrumentation Ltd. vs. CCE, Jaipur-I 2011 (23) STR 221 (Tri-Del.)
The Tribunal in this case held that Erection Installation or Commissioning service, Commercial or Industrial Construction service and Construction of Residential Complex service, which involve transfer of property in goods on which tax as sale of goods is leviable is liable to service tax even prior to introduction of Works Contract service w.e.f. 01/06/2007. Works Contract composition scheme and valuation rules only provides a new machinery provision for assessment of Service tax on contract involving transfer of property in goods on which sales tax/Vat is chargeable.
It is further held that, a preposition that a works contract cannot be vivisected and part of it subjected to tax in various Tribunal decision such as Daelim Industrial Co. Ltd, L&T Ltd and Petrotac International Ltd is fallacious. The question of vivisection of an indivisible contract is relevant only in the context of charging Sales tax on the transfer of property in goods involved in providing service, for which by 46th Constitutional amendment Article 366(29A) contained extended definition of “Tax on sale or purchase of goods” was introduced. But there is no need to invoke the legal fiction of Article 366(29A) for charging service tax on a works contract.
1.3 Dessert Inn Limited vs. CCE, Jaipur 2011 (23) STR 254 (Tri-Del.)
The appellant in this case made available car parking facility to clients who availed services of Mandap and contended that same is not liable to service tax under Mandap Keeper service. The Tribunal held that, parking charges are collected separately from clients who hired Mandap and not from persons who parked cars and hence the service is in relation to Mandap, a necessary facility for use of Mandap and therefore liable to service tax. It is also held that, option of payment of 25% penalty within 30 days under section 78 to be provided following decision in case of K. P. Pouches Pvt. Ltd. 2008 (228) ELT 31 (Del.).
1.4 Sahni Video Movies vs. CCE, Chandigarh-II 2011 (23) STR 299 (Tri-Del.)
The Tribunal in this case held that appellant, who is individual professional photographer is entitled to claim benefit of Notification No. 7/2001-ST at any stage, if available to him.
1.5 Small Industries & Development Bank of India vs. CCE, Chandigarh 2011 (23) STR 392 (Tri-Del.)
In this case, department demanded service tax on premium on pre-payment of direct loans from customers under Banking and Financial services. The appellant contended that foreclosure of loan not towards rendering service but is ending of service. The Tribunal held that, in Order there is no indication as to which category of definition of Banking & Financial service, foreclosure falls and foreclosure is ending loan given and is kind of compensation for possible loss of interest revenue on loan amount returned. Hence, the said service cannot be treated as lending service.
2. Interest/Penalties/Others:
2.1 Norasia Container Lines vs. CCE, New Delhi 2011 (23) STR 295 (Tri.-Del.)
In this case, the department denied exemption under notification no. 4/2004-ST in respect of SEZ as containers used for bringing inputs and carrying finished goods were partly used inside SEZ and partly outside. The Tribunal observed that notification uses expression “for consumption of services within such SEZ” but at the same time also uses expression “taxable service provides to unit of SEZ” and these expression have to be read harmoniously. It is held that Section 26 of SEZ Act, 2005 and Rule 31 of SEZ Rules, 2006 do not provide for any restriction regarding consumption of services and exemption is extended to services rendered to SEZ unit for authorized operations.
2.2 Ceolric Services vs.CST, Bangalore 2011 (23) STR 369 (Tri.-Bang.)
In this case revised returns were filed belatedly i.e. after period of 60 days as provided in Rule 7B of STR, 1994. The department pleaded that said returns cannot be considered as filed beyond the period provided in Rule 7B. The Tribunal after considering Rule 7C of STR, 1994, which provides for amount to be paid for delay in furnishing prescribed returns, held that revised return cannot be ignored simply because same filed after period provided in Rule 7B.
3. CENVAT Credit:
3.1 CCE, Coimbatore vs. Lakshmi Technology & Engineering Indus. Ltd. 2011 (23) STR 265 (Tri.-Chennai.)
The appellant in this case is a manufacturer cum service provider. They have utilized cenvat credit from common pool for payment of service tax on taxable services. The Tribunal held that, manufacturer or service provider is entitled to use credit for payment of duty or tax from common pool to which different categories of specified excise duties, custom duty and service tax are allowed to be taken as credit. The cenvat credit rules permit taking of credit under common pool and permit use of the credit from common pool for different purposes and there is no restriction placed to the effect that the credit accounts should be maintained for use for manufacture of excisable goods and for use for providing services.
3.2 CCE, Meerut-II vs. Hindustan Coca-Cola Beverages Ltd. 2011 (23) STR 268 (Tri.-Del.)
The Tribunal in this case held as under;
- Allowed cenvat credit of service tax paid on service of practicing Chartered Accountant for verification of stock;
- Allowed cenvat credit of service tax paid on security of main raw material, however not allowed credit in respect of security of sales office and General Manager’s residence.
- Allowed cenvat credit of service tax paid on Outdoor Caterer service.
3.3 Sundaram Fastners Ltd. vs. CCE, Chennai 2011 (23) STR 272 (Tri.-Chennai.)
The Tribunal in this case after relying on Bombay High Court decisions allowed cenvat credit of service tax paid on Van Hire charges for transportation of employees as without employees manufacture cannot take place.
3.4 CCE, Trichy vs. Sri Rama Vilas Service Ltd. 2011 (23) STR 273 (Tri.-Chennai.)
The Tribunal in this case not allowed cenvat credit of service tax paid on Gardening service as the same is not having any nexus with the assessee activity of manufacture of motor vehicle parts.
3.5 Hindustan Zinc Ltd. vs. CCE, Jaipur-II 2011 (23) STR 274 (Tri.-Del.)
The Tribunal in this case not allowed cenvat credit of service tax paid on Cable TV service and Repair and Maintenance service received in Guest House as these services are not having any nexus with manufacture of finished goods.
3.6 Ucal Fuel System Ltd.. vs. CCE, Chennai 2011 (23) STR 276 (Tri.-Chennai)
The Tribunal in this case allowed cenvat credit of service tax paid on services of preparation of pre-shipment and post-shipment documents for export goods as these services are having nexus with business of manufacturer-exporter.
3.7 CCE, Bangalore –I vs. ECOF Industries Pvt. Ltd. 2011 (23) STR 337 (Kar.)
In this case, Head Office in Chennai registered as “Input Service Distributor” taken cenvat credit of various services like insurance, telephone, advertisement etc. availed by unit in Cuttack but distributed the said credit to unit in Kolar, who used it for payment of Excise Duty. The department contended that credit cannot be availed by Kolar unit as services are availed by Cuttack unit. The High Court held that credit could not be denied on ground that input services were not used/received in relation to manufacture of goods in Kolar. The registered input service distributor is entitled to distribute credit, subject to conditions prescribed in Rule 7 of CCR, 2004.
3.8 CCE, Visakhapatnam-II vs. Sai Sahmita Storages (P) Ltd. 2011 (23) STR 341 (AP.)
The assessee in this case a Storage and Warehousing service provider, claimed cenvat credit of duty paid on cement and TMT bars used for construction of warehouse. The department contended that credit is not allowable on such items. The High Court held that, without use of these items, assessee could not provide storage and warehousing service and therefore they are entitled to claim credit of duty paid on such items.
3.8 Nemlaxmi Books (India) P. Ltd. vs. CCE, Surat 2011 (23) STR 367 (Tri.-Ahmd.)
In this case, appellant filed more than one refund claim for quarter in violation of condition No. 2A of appendix of Notification No. 5/2006-CE(NT). The department rejected refund claim. The Tribunal observed that more than one application for quarter is not sustainable in view of specific condition provided in Notification and upheld rejection of refund claim.
No comments:
Post a Comment