Rent-a-Cab Service :
1.1 CCE, Meerut-II vs. Sapan Mehrotra 2012 (26) STR 219 (Tri-Del)
The assessee in this case had a contract with various units of Indian Army for making available means of transportation such as taxi, mini-buses, deluxe buses and non-deluxe buses on hire basis against request. The Tribunal observed that, facts of the case are akin to case of taxi operator on the street and except the rates for a fairly long duration each of the vehicles were not put at the disposal of army for any fixed duration. Therefore, it is held that, services are not covered under Rent-a-cab Services.
Management, Maintenance or Repair Service:
1.2 Safety Retreading Company (P) Ltd. vs. CCE, Salem 2012 (26) STR 225 (Tri-Chennai)
The appellant in this case engaged in retreading of old and used tyres on job work basis. They have claimed that there is sale of materials like tread rubber, patches, bonding gum to their customers and the same should be treated as works contract. The Tribunal held that, concept of ‘deemed sales’ and apportionment of value of contract towards material supplied would be relevant only in the context of works contract. The invoices unilaterally raised by the appellant indicating the break up without substantiating the amount attributable to the value of goods supplied cannot be considered as documentary proof for the purpose of Notification No. 12/2003-ST. It is further held that, mere fact of payment of value of goods sold cannot be considered as evidencing sale of goods for the purpose of Notification No. 12/2003-ST.
It is also held that, Maintenance and repair service being a specific service cannot be treated as service under category of Works Contract for the Service Tax purposes. Liability to service tax has to be determined without being influenced by the fact of their paying Sales tax/VAT on portion of the value said to represent the material cost.
Interior Decorator’s Service:
1.3 Space Decorators vs. CCE, Pune-III 2012 (26) STR 346 (Tri-Mumbai)
The assessee carried out execution of civil works, sanitation work, plumbing, electrical work and wooden furniture. The Tribunal held that, assessee not rendering advice, consultancy, technical assistance, planning or designing and therefore not within the scope of Interior Decorator’s Service.
2. Interest/Penalties/Others:
2.1 CCE, (Appeals), Bangalore vs. KVR Constructions 2012 (26) STR 195 (Kar.)
The assessee in this case claimed refund of service tax paid wrongly on Construction Service. The High Court observed that, department has not disputed that, it was not payable due to exemption notification, and that it was not passed on. The High Court held that, department did not have legal authority to collect service tax and if did, it could be challenged as unconstitutional. Mere payment of amount could not authorize Department to regularize/validate and retain it. Department’s plea that filing of claim under Form-R indicated that assessee intended to claim refund of duty and they could not latter claimed that it was not a duty, has been rejected by the Court. In that view, refund could not be rejected on ground of limitation under section 11B of CEA, 1944.
2.2 Kiran Ship Breaking Corporation vs. Customs, Excise & Service Tax 2012 (26) STR 195 (Kar.)
In this case, Tribunal dismissed appeal ex-parte for non appearance of the appellant on numerous counts. The High Court after relying on decision in Viral Laminates Pvt. Ltd. 1998 (100) ELT 335 (Guj.) held that, Tribunal has no power to dismiss appeal in default and appeal has to be decided on merits even in case of non-appearance.
2.3 Rashtriya Ispat Nigam Ltd. vs. Dewan Chand Ram Saran 2012 (26) STR 289 (SC.)
The Supreme Court in this case held that, Service Tax is indirect tax which may be passed on and assessee can contract to shift their liability. The FA, 1994 is relevant only between assessee and tax authorities and it is irrelevant to determine rights and liabilities between service provider and recipient as agreed in contract between them. There is nothing in law to prevent them from entering into agreement regarding burden of tax arising under contract between them.
2.4 Amidev Agro Care Pvt. Ltd. vs. UOI 2012 (26) STR 299 (Bom.)
The High Court in this case held that, sending of order by ‘Speed Post’ is not a sufficient compliance to the provisions of section 37C(1)(a) of CEA, 1944. Order is to be served on the assessee or his agent through Registered Post AD or by other modes of service specified in section 37C. The Tribunal Order dismissing the appeal by accepting dispatch of order by ‘Speed Post’ as valid service is set aside.
2.5 CST, Bangalore vs. Prakash & Co. 2012 (26) STR 303 (Kar.)
The High Court in this case held that, assessee is not liable to pay penalties under section 76 and 77 in the present case, as service tax and interest has been paid availing benefit of Amnesty Scheme.
2.6 DCM Textiles vs. CCE, Gurgaon 2012 (26) STR 359 (Tri-Del.)
The appellant disclosed information about the receipt of taxable service of procuring export orders on commission basis from commission agents abroad, in their balance sheet and as soon as information in this regard was asked for by the Department the same was provided. Further, they have also applied for and obtained service tax registration and paid substantial part of the demand. The Tribunal held that, merely non-obtaining Service tax registration or non-payment of tax, it cannot be concluded that the same was with intention to evade the tax and hence penalty under section 78 is not attracted.
3. CENVAT Credit:
3.1 CCE&ST, LTU, Bangalore vs. Ace Designers Ltd. 2012 (26) STR 193 (Kar)
The High Court in this case observed that, when assessee provides outdoor canteen facilities because of a statutory obligation imposed on him under section 46 of the Factories Act, 1948, it becomes a condition of service as far as the employees are concerned. It may be welfare measure but certainly not a charity provided by employer to the employees. It is held that, merely because these services are not expressly mentioned in the definition of input service it cannot be said that they do not constitute input service and assessee is not entitled to cenvat credit.
3.2 CCE&ST, Bangalore vs. Bill Forge Pvt. Ltd. 2012 (26) STR 204 (Kar)
The High Court in this case held as under;
- Since the assessee had not taken benefit of wrong entry in their account books, there was no liability to pay interest. Once entry was reversed, it is as if that Cenvat credit was not available.
- Wrong availment of credit does not attract interest liability, which arises from the date credit is taken or utilized wrongly. It is only when credit has been taken and duty legally due to Government is not paid, Government would sustain loss to that extent. Liability to pay interest arises under section 11AB of CEA, 1944 from date amount became due, to compensate Government. Without liability to pay duty, liability to pay interest does not arise.
- Taking of credit means actually taking credit in account books while clearing finished goods. It is not merely entry in account books showing entitlement to credit. It is more so as words used in Rule 14 of CCR, 2004 are ‘taken’ or ‘utilized’ and not ‘avail’. If before utilization of credit, entry has been reversed, it amounts to not taking credit on inputs.
- The decision of Supreme Court in UOI vs. Ind-Swift Laboratories Ltd. 2011 (265) ELT 3 (SC) has been distinguished.
Note: In this regard reference can also be made to amendments carried out in rule 14 of CCR, 2004 by Notification No. 18/2012-CE(NT) dated 17/03/2012.
3.3 Steel Strips vs. CCE, Ludhiana 2012 (26) STR 270 (Tri-LB)
The Larger Bench in this case held that, cash refund of unutilized Cenvat credit on closure of unit is allowed only when the restriction has been put on utilization of cenvat credit for payment of duty and the assessee has been compelled to pay duty out of PLA. There is no provision in Cenvat credit rules to grant refund except in case of exports.
3.4 BRY Asia Pvt. Ltd. vs. CCE, Delhi-III 2012 (26) STR 333 (Tri-Del.)
The Tribunal in this case held that, repair and maintenance of air-conditioning plant in office used by employees working in connection with manufacturing business of assessee and hence credit of service tax paid thereon is admissible.
3.5 Hot Sport Colour Lab vs. CCE, Indore 2012 (26) STR 336 (Tri-Del.)
In this case, the appellant has taken cenvat credit of duty paid on capital goods in November, 2005, whereas invoice was dated 05/12/2005 and goods were received in factory on 22/12/2005. The Commissioner (A) upheld the denial of credit. It is held that, denial of credit was on technical grounds and there is no reason for denial of credit.
3.6 CCE&ST, LTU, Bangalore vs. Micro Labs Ltd. 2012 (26) STR 383 (Kar.)
The assessee in this case manufacture of medicaments, claimed cenvat credit of service tax paid on Group medical policy and Group insurance health policy. The Court observed that, obligation has been cast on manufacturer under Workmen’s Compensation Act to obtain insurance policy. Therefore, it is held that, policy taken by assessee is a service constituting, activity relating to business which is covered under input service definition and service tax paid on all services utilized directly or indirectly in or in relation to final product eligible as credit.
3.6 J. K. Sugar Ltd. vs. CCE, Meerut-II 2012 (26) STR 391 (Kar.)
The Tribunal in this case held as under;
- Allowed cenvat credit of duty paid on HR Plate/coil, joining sheet & MS stud, and welding electrodes used for maintenance and repair of plant and machinery.
- Allowed cenvat credit of service tax paid on Rent-a-cab Service for transport of inputs and mobiles phones used by officials for company work.
- Taking of credit before payment of service tax is only a technical lapse and on such lapses credit cannot be denied.
No comments:
Post a Comment