1. Services:
Cargo Handling Service:
1.1 Beena Pradeep vs. GOI 2013 (29) STR 225 (Ker.)
The High Court
in this case held as under;
- The activity of group packing in rough form just for easy loading into containers or ships, of goods taken by shipping companies in loose form for transport of the same to destination is classifiable under Cargo Handling Service.
- Packing of cargo is covered by Cargo Handling Service and also under Packaging Service. However, packing covered under Packaging Service is basic packing of products either in course of manufacturing or subsequent to manufacturing for marketing, whereas packing covered by broad definition of Cargo Handling Service is group packing of cargo for easy handling.
- Exemption provided to export cargo is to reduce cost of exporters to send goods for sale in international market at competitive rates. If service tax is demanded at last point packaging of goods for loading into containers or ships, it will lead to escalation of cost for export by way of freight increase.
Tour
Operators Service:
1.2 Choudhary Yatra Co. Pvt. Ltd. vs. CCE, Nashik 2013 (29) STR 240 (Tri-Mumbai)
The appellant in
this case supplied ordinary buses (not tourist vehicles) on rent basis to other
tour operators such as ITDC etc., who were discharging service tax and also to
other commercial or non-commercial concerns. The Tribunal held that, as service
tax has been paid by other tour operators, it could not be demanded second time
on same activity however, buses provided to other commercial concerns/schools
are liable to service tax.
It is further held
that, persons neither holding tourist permit nor having tourist vehicles were
not liable to pay service tax for period prior to 10/09/2004. It is also held
that, since issue involved interpretation of law, neither extended period is
invocable nor penalty is imposable.
1.3 Mangalore Tourist Service vs. CCE, Mangalore 2013 (29) STR 244 (Tri-Bang.)
The appellant in
this case provided tour operators services by using own vehicles and also of
third parties. They contended that service provided by using third parties
vehicles should be treated as Business Auxiliary Service and only amount of
commission retained by them should be subjected to Service Tax. The Tribunal
held that, this contention of the appellant is not acceptable and entire amount
is liable to service tax.
Business
Auxiliary Service – Export of Service:
1.4 Paul Merchants Ltd. vs. CCE, Chandigarh 2013 (29) STR 257 (Tri-Del.)
In this case,
the Tribunal held that services provided by Indian agents/sub-agents to Money
transfer company collecting money from abroad to be remitted to intended
beneficiary in India is liable to service tax under BAS and since it has satisfied
all the conditions mentioned in rule 3(2) of ESR, 2005, the said services
qualifies as export of service and can be exported without payment of tax.
It is further
held that, reimbursement received towards advertisement and sales promotions is
also to be treated as export of service.
2.
Interest/Penalties/Others:
2.1 Vodafone Digilink Ltd. vs. CCE, Jaipur 2013 (29) STR 229 (Raj.)
The
appellant in this case availed Cenvat credit on exempted services in excess of
prescribed limit and utilized also. The Tribunal observed that, no disclosure
in this regard has been made in returns filed. It is held that, disclosure of
such facts were incumbent on assessee, and especially so as it was a
professionally managed corporate. It is willful suppression of facts for which
extended period is invocable and also liable for penalty.
2.2 SKP Securities Ltd. vs. Deputy Director (RA-IDT) 2013 (29) STR 337
(Cal.)
The High Court
in this case held that, rule 5A(2) of STR, 1994 does not empower CAG to audit
accounts of any assessee and it is more
so as it is framed under power from section 94(2) of FA, 1994 which does not
empower Central Government to frame rules for such audit. It only casts
obligation on assessee to make records and documents as specified therein available
to officer authorized by Commissioner, or audit party deputed by Commissioner
or CAG.
2.3 India Trimmings Pvt. Ltd vs. CCE&ST, Coimbatore 2013 (29)
STR 383 (Tri-Chennai)
In this case,
the department denied refund claim as time barred filed under Notification No.
5/2006-CE(NT) under rule 5 of CCR, 2004. The Tribunal observed that, dispute of
eligibility of credit settled in assessee’s favour on 28/01/2009 and claim
filed within one year from that date. It is held that, assessee entitled for
refund from date of settlement of dispute and claim is filed within the time
prescribed.
2.4 Shree Perfect Security Services (India) P. Ltd. vs. CST,
Ahmedabad 2013 (29) STR 389 (Tri-Ahmd.)
The appellant in
this case claimed refund of penalty paid. The department sought to reject the
same on the ground of unjust enrichment. The Tribunal held that, decision
in Unitech Spirits Ltd. (2009) (240)
ELT 513 (Bom.) supports that principle of unjust enrichment is inapplicable
to penalty and the burden of proving passing on of penalty is on department and
not on assessee as in case of duty.
2.5 Tata Consultancy Services Ltd. vs. CCE&ST (LTU) Mumbai 2013
(29) STR 393 (Tri-Mumbai)
The Tribunal in
this case held as under;
- Even though the appellant is not eligible for refund of service tax paid on services used in relation to authorized operation in SEZ under Notification No. 9/2009-ST, they are certainly eligible for refund under section 11B of CEA, 1994 r.w.s. 83 of FA, 1994.
- Once Approval Committee gave nexus and justification, it was unwarranted for adjudicating and appellate authorities to go into the question and come to their own findings in matter.
- Though under Notification No. 9/2009-ST. in case of services wholly consumed within SEZ, there is no necessity to discharge Service Tax liability ab initio, it does not mean that, in case where Service Tax liability has been discharged, assessee is not eligible for refund of Service Tax paid under Section 11B of CEA, 1994 r.w.s. 83 of FA, 1994.
3. Cenvat
Credit:
3.1 CST vs. Hero Honda Motors Ltd. 2013 (29) STR 358 (Del)
The High Court in this case held that, there
is no bar on utilization of cenvat credit for payment of service tax on GTA by
recipient of such service. It is permissible under rule 3(4)(e) of CCR, 2004
and Revenue’s contention that, tax liability had to be discharged in cash, and
assessee was only recipient of taxable service and not its provider, rejected
in view of fiction created by section 68(2).
3.2 C. Cubed Solutions Pvt. Ltd. vs. CCE, Bangalore 2013 (29) STR 385
(Tri-Bang.)
The Tribunal in this case allowed Cenvat
credit of service tax paid on Manpower Recruitment or Supply service, Security
Agency service, Chartered Accountants service, Advertisement, Housekeeping
service, Annual Maintenance Contract Service and Clearing & Forwarding
service as the same were used in relation to the IT enabled output service.
3.3 Bharti Airtel Ltd. vs. CCE, Pune 2013 (29) STR 401 (Tri-Mumbai)
The Tribunal in this case held that, Cell
Site comprising of Base Trans-receiver Station and other equipments housed in
prefabricated building is immovable property and non-excisable and it is
neither classifiable under Heading 85.25 nor capital goods under rule 2(a) of
CCR, 2004. Credit cannot be claimed on tower either as components, part or
accessory of Cell Site as Capital Goods or as item used for providing output
service. Towers are immovable structures and ipso facto non-marketable and
non-excisable and cannot be considered as inputs.
Officer chairs used by telecom service
provider are classifiable under Chapter 94 which, is not specified in rule 2(a)
of CCR, 2004 and hence not a capital goods. Further, there is no evidence of
their use for providing telecom service hence, they are not inputs also.
Though Printers used by the appellant are
covered under the definition of Capital goods, credit is not admissible as no
nexus is established with output service.
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