1. Services:
Tour Operator’s Service:
1.1 Ideal Travels vs. CCE, Mangalore 2012 (28) STR 257 (Tri-Bang.)
The appellant in this case engaged in business of plying buses on intra-state routes and did not take registration and paid any service tax amount. The Tribunal held that, the assessee is covered under Tour Operators service. Further, they are entitled to benefit of Exemption Notification No. 20/2009-ST effective from April, 2000. It is further held that, taxing authorities were not clear on taxability of transportation of
passengers as evident from notifications, clarifications and section 75 of FA, 1994, hence the appellant can’t be held to have suppressed material facts with intent to evade payment of service tax.
Storage & Warehousing Service:
1.2 CST, Mumbai vs. P. N. Writer & Co. Ltd. 2012 (28) STR 264 (Tri-Mumbai)
The assessee engaged in providing storage and warehousing of old records, files of client etc. They have contended that, they are not liable to service tax as discharged cheques, vouchers, deeds, books of accounts etc. are not Goods as not intended for sale, having no commercial value. The Tribunal observed that, section 2(7) of Sale of Goods Act, 1930 provide saleabilty as essential criteria to constitute goods and after relying on decision of Supreme Court in R. D. Saxena vs. Balram Prasad Sharma AIR 2000 SC 92, it is held that, records in question cannot be considered as goods and therefore assessee is not liable to service tax.
Commercial or Industrial Construction Service:
1.3 CST, New Delhi vs. Fankaar Interiors Pvt. Ltd. 2012 (28) STR 270 (Tri-Del)
The department in this case contended that, civil, electrical, interior and miscellaneous work is covered under CIC service, though clause ‘c’ relating to completion and finishing service has been introduced w.e.f. 16/06/2005. The Tribunal held that, clause ‘c’ to become redundant, if Revenue’s stand of service to be covered by earlier definition is accepted and therefore the appeal is liable to be rejected.
Intellectuel Property Right Service:
1.4 Eicher Good Earth Ltd. vs. CST, New Delhi 2012 (28) STR 279 (Tri-Del)
The Tribunal in this case held that, when transaction is read as whole it is indeed a contract for transfer of the right to use the Trademark for limited purpose but on a permanent basis. The facts that certain post transfer conditions are attached to transfer of the right does not change the nature of contract. The contract in question is in its pith and substance is not a ‘transfer of right to use’ and is more in the nature of permission to use the trademark which continues to be the property of licensor and therefore liable to service tax under IPR service.
It is further held that, dispute is a matter of interpretation of complicated legal issues. It is unfair to allege intention to evade tax on the part of the appellant and therefore, a fit case for invoking section 80 of FA, 1994.
Business Auxiliary Service:
1.5 P. Muraleedharan vs. UOI 2012 (28) STR 344 (Ker.)
The High Court in this case held that, discount or commission received by distributors/agents and retailers for marketing lottery tickets was consideration for service rendered to promoter/organizer of lottery. Without such service, lottery tickets cannot reach ultimate customers who are participants in draw. In that view, whole scheme of lottery, printing and distribution of tickets and conduct of draw found to involve service from various agencies, most important being the distributors. These were subject to tax under explanation to section 65(19)(ii) read with Section 65(105)(zzb) of FA, 1994 i.e. under Business Auxiliary Service.
Banking & Other Financial Service:
1.6 Canara Bank vs. CST, Bangalore 2012 (28) STR 369 (Tri.-Ahmd.)
The appellant in this case is RBI agent authorised to act on behalf of the Government. The agreement disclosed that, RBI is regulator of Banks and the appellant is required to maintain account with RBI for various purposes. The Tribunal held that, in view of section 21, 21(a) and section 45 of RBI Act, 1934, RBI is empowered to transact Government business and allow agent to perform its functions. The decision in Cement Allocation Co-ordinating Organizations (1971) 2 SCC 587 (SC) is applicable in this case and exemption available to principal available to agent also. Since RBI is exempt from Service Tax for same functions carried out by the appellant, therefore, said benefit is also available to the appellant.
2. Interest/Penalties/Others:
2.1 Max India Ltd. vs. CCE, Chandigarh 2012 (28) STR 248 (Tri-Del)
The appellant in this case claimed refund of Inland haulage, terminal handling, bill of lading services received classified as Port Services by service provider. The department rejected refund claim on the ground that, services not classifiable under Port services and therefore refund is not allowed under Notification No. 41/2007-ST. The Tribunal held that, argument of classification of services not to change at recipient’s hand is sufficient to allow the appeal. It is further held that, department has advanced diametrically opposite argument advanced in Western Agencies Pvt. Ltd. 2011 (22) STR 305 (LB) and department is not allowed to approbate and reprobate on same issue.
2.2 Sterling Hoffman Software Consultants P. Ltd. vs. CCE, Vadodara 2012 (28) STR 253 (Tri-Ahmd.)
The department in this case rejected refund claim on the ground that, the appellant has not received consideration in convertible foreign exchange. The Tribunal held that, appellant has submitted banker certificate confirming payment of customer in to Indian currency and thereafter paid to assessee and therefore, the legal requirement fulfilled and rejection of refund claim is unwarranted.
2.3 Bhawana Motors vs. CCE, Jaipur-II 2012 (28) STR 268(Tri-Del.)
The department issued show cause notice for subsequent period on same facts and alleged willful ignorance of payment of tax and failure to submit ST-3 returns. The Tribunal held that, assessee’s activity were within Department’s knowledge in view of earlier SCN issued and department cannot accuse assessee of suppression of facts for subsequent period. The demand raised is unsustainable on ground of limitation.
2.4 Saurabh Organics Private Limited vs. CCE, Thane 2012 (28) STR 321(Tri-Mumbai.)
The Tribunal in this case observed that, the grounds on which the duty liability confirmed are different from those alleged in show cause. In view therefore it is held that, the order in appeal is traversed beyond show cause notice and hence unsustainable and bad in law.
2.5 Skoda Auto India Private Limited vs. CCE, Aurangabad 2012 (28) STR 391(Tri-Mumbai.)
The appellant in this case paid service tax liability on import of services for period prior to 18/04/2006 though not liable to pay along with interest. After relying on decision in Indian National Ship Owners Association 2009 (13) STR 235 (Bom), they have instead of claiming refund availed Cenvat credit of service tax paid and claimed refund of interest paid. The Tribunal held that, once liability is admitted same is to be paid along with interest and therefore claim of refund on interest is not maintainable.
2.6 Paschimanchal Vidyut Vitran Nigam Ltd. vs. CCE, Meerut 2012 (28) STR 412(Tri-Del.)
The Tribunal in this case observed that, to bill for sale of electricity to consumer it was necessary to install meter having capacity to withstand the load provided to consumer. It is held that, erection, commissioning or installation of meters as also technical testing and analysis, are services related to transmission and distribution of electricity provided and therefore it is exempt from service tax under Notification no. 45/2010-ST.
3. Cenvat Credit:
3.1 CCE & ST (LTU) vs. Lupin Ltd. 2012 (28) STR 291 (Tri-Mumbai)
The Tribunal in this case allowed Cenvat credit of service tax paid on following services as the said services qualify as input service;
· Tour operator used for transporting staff from residences to factory and back;
· Waste management, a statutory requirement to remove waste from factory to treatment plant;
· Garden maintenance to maintain factory premises neat and clean;
· Repair of fans in factory;
· Photography of machines for obtaining insurance;
· Dry cleaning of uniform of staff;
· Construction of premises for manufacturing activity;
· Brokerage for selling products of company;
· Architects;
· Courier
· Catering;
· Manpower recruitment;
· Advertisement;
· Telephone;
· Machinery/ETP cleaning; and
· Repair and maintenance
It is further held that, definition of input service is very wide and it covers not only services directly or indirectly used in or in relation to manufacture of final products, but also thereafter.
3.2 CCE, Nashik vs. Mahindra & Mahindra Ltd. 2012 (28) STR 382 (Tri-Mumbai)
The Tribunal in this case held that, as per section 4(3)(d) of CEA, 1944 value of warranty and service is post manufacturing includible in assessable value and therefore entitled for input service credit.
3.3 Shree Bhawani Paper Mills Ltd. vs. CCE, Lucknow 2012 (28) STR 409 (Tri-Del)
The appellant in this case availed Cenvat credit of service tax paid on Consultancy Engineering services used for modernization of power plant of appellant and such power plant is used for manufacture of paper which is liable to Central Excise Duty. The Tribunal held that as long as the services of consultancy engineering by the appellant are in relation to development of the power plant, which in turn is used for manufacture of paper, such services get covered under the cover of definition of input services.
3.4 Arya Vaidya Pharmacy (Coimbatore) Ltd. vs. CCE, Calicut 2012 (28) STR 415 (Tri-Bang.)
The appellant in this case claimed Cenvat credit of service tax paid on construction of factory building on the other side of road to expand production facilities. The registration no. of existing and new factory was same. The Tribunal held that, department itself subsequently accepted that appellant had set up a factory and registered it and in that view, construction service was for building the factory and therefore input service on which the appellant was entitled to take Cenvat credit.
3.5 CCE, Coimbatore vs. GTN Engineering (I) Ltd. 2012 (28) STR 426 (Mad)
The High Court in this case held that, even though section 11B of CEA, 1994 does not cover refund of Cenvat credit, Notification No. 5/2006-CE (NT) makes it applicable for that purpose. The relevant date for computing one year period prescribed under section 11B is to be determined by applying Rule 5 of CCR, 2004. Since without reading of rule 5 with Notification 5/2006 refund claim cannot be filed, limitation provided under section 11B has to be satisfied. The CESTAT view that no time-limit was applicable for refund claim is incorrect.
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