1. Services:
Outdoor Catering Service:
1.1 CST, Bangalore vs. The Grand Ashok 2013 (31) STR 528 (Kar.)
The High Court
in this case held that, outdoor catering consists of article of food etc. which
constitute sales and other part consists of service to bring food to place
designated by client, including transportation, which alone is liable to service tax and not the
entire cost received from client. It is composite but divisible contract of
service under Article 366(29A) (f) of Constitution of India on which State
Legislature is competent to levy Sales tax on sales aspect only. Hence, sale of
goods has to be bifurcated from service provided.
Manpower supply & Security Service:
1.2 CCE, Indore vs. International Logistics 2013 (31) STR 563 (Tri-Del.)
The Tribunal in
this case held that, reimbursement of expenses in case of manpower and security
services are to be included in assessable value as such expenses are
inseparable and integrally connected with performance of taxable service. It is further held that, mere filing of
balance sheet and returns does not amount to disclosure of facts.
1.3 Seven Hills Construction vs. CST, Nagpur 2013 (31) STR 611 (Tri-Mumbai.)
In this case, the
department sought to tax supply of manpower for running and maintenance of
crushing plant, loading crushed stones in various sizes as required by clients
under agreement of supply of manpower as per rate contract under Manpower
supply service. The Tribunal after following decision in Divya Enterprises
2010 (19) STR 370 (Tri.), held that lump sum work given to assessee is not
covered under supply of manpower service category.
Erection, Commissioning and
Installation Service:
1.4 CCE, Rajkot vs. PSL Ltd. 2013 (31) STR 570 (Tri-Ahmd.)
The assessee in
this case engaged in job of laying the coated pipes on behalf of their
customers for Government of Gujarat for GWRDC and NWRSDSK projects. The
Tribunal held that, as per para 13.2 and 13.4 of Boards Circular No.
80/10/2004-ST dated 17/09/2004 and decision in Larson & Toubro Ltd. 2011
(22) STR 459 (Tri.) service tax is leviable on construction done for
commerce or primarily commerce and in the instant case, the supply of water was
for the needy citizens of State and therefore, the activity is not chargeable
to Service Tax.
Business Auxiliary Service:
1.5 Good Wind Travels Pvt. Ltd. vs. CCE, Ahmedabad 2013 (31) STR 598
(Tri-Ahmd.)
The department
in this case sought to tax services provided in the nature of assistance in
Visa and Passport related work under BAS. The Tribunal held that, CBEC Circular
No. 137/6/2011-ST dated 20/04/2011 covers the issue in favour of the appellant
and impugned services are not covered under any category of services leviable
to service tax.
1.6 Katrina R. Turcotte vs. CST, Mumbai-I 2013 (31) STR 670 (Tri-Ahmd.)
The Appellant in
this case paid service tax on various promotion or marketing services through
her agent under Advertising Agency Service. The department sought to demand
service tax under Business Auxiliary Service. The Tribunal held that, service
tax liability discharged by the agent cannot be denied merely on the ground
that, it has paid service tax under Advertising Agency service. Just by paying
the service tax liability under wrong head does not mean that service tax
liability has not been discharged. Further the expression “Assessee” under
section 65(7) means a person liable to pay tax including his agent.
1.7 Smart Chip Ltd. vs. CCE, Bhopal 2013 (31) STR 727 (Tri-Del.)
The Tribunal in
this case held that, the primary activity of issuance of Smart Card with
relatable chip is composite contract to build a system and cannot be conceived
to be Business Auxiliary Service.
Club or Association Service:
1.8 Sports Club of Gujarat Ltd. vs. UOI 2013 (31) STR 645 (Guj)
The High Court
after relying on the decision in Ranchi Club Ltd. 2012 (26) STR 401 (Jhar.)
held that, service tax on club rendering services to its members is ultra
vires and beyond legislative competence of Parliament. There was no loss of
mutuality of club members, even if club was incorporated under Companies Act,
1956. The Court also rejected department’s plea that, they have not accepted
Jharkhand High Court judgment and held that persuasive value of the said
judgment was not lost and more so because it has relied on a Full Bench
decision of High Court.
Banking and Financial Service:
1.9 CST, Delhi vs. Lufthansa Technik Service India P. Ltd. 2013 (31) STR
730 (Tri-Del)
The Tribunal in
this case held that, providing aircrafts parts/equipments to airlines on leas
for fixed period on payment of monthly lease charges is not a financial lease
but operating lease and not liable to service tax under BFS. It is further held
that, in absence of definition, the term or expression to be interpreted in
sense in which it is understood in common parlance or trade parlance.
Télécommunication Service:
1.10
Vodafone Essar
Cellular Ltd. vs. CCE, Pune-III 2013 (31) STR 738 (Tri-Mumbai)
The appellant in
this case, claimed export of telecom services provided in India to
International in bound roamers registered with foreign telecom network
operators, for which consideration was received in convertible foreign
exchange. The Tribunal held that, there is no contract/agreement between
assessee and subscriber of foreign telecom operator and therefore foreign
telecom service provider is paying for services as recipient of service.
Telecom service falls under category III of ESR, 2005 and CBEC in circular No.
111/5/2009-ST dated 24/02/2009 clarified that benefit accruing to foreign
service provider as subscriber billed for services rendered. The ratio of
Tribunal’s decision in Paul Merchants 2013 (29) STR 257 (Tribunal) is
squarely applicable to the present case and therefore service is qualified as
export of service.
2.
Interest/Penalties/Others:
2.1 Chitra Builder’s P. Ltd. vs. ADC, CE &ST, Coimbatore 2013 (31)
STR 515 (Mad.)
The department in this case collected Rs. 2.00 crores from the
petitioner company during search and stated that same has been paid
voluntarily. The High Court held that, though it is stated that amount has been
paid voluntarily, it is not shown by the department that the petitioner was
liable to pay service tax relating to the works being carried on by it during
the course of its business. No tax can be collected from the assessee, without
an appropriate assessment order being passed by the authority concerned and by
following the procedures established by law.
2.2 Bhagwati Security Services (Regd.) vs. UOI 2013 (31) STR 537 (All.)
In this case
petitioner provided security services to BSNL under an agreement. The
petitioner deposited service tax on reimbursement of expenses and applied for
reimbursement of service tax from BSNL, which was denied on the ground that,
the same was not contemplated in the agreement. The High Court held that,
Service tax is statutory liability and Statute is imposing the tax upon the
person to whom the service is being provided and the service provider is merely
a collecting agency, therefore the respondent is liable to make reimbursement
of service tax to petitioner.
2.3 Elgi
Equipment Ltd. vs. CCE, Coimbatore 2013 (31) STR 583 (Tri.-Chennai)
In this case
appellant, applied for refund of amount paid after stipulated period of one
year under section 11B on the ground that, mere erroneous deposit of Service
Tax not to be treated as tax and therefore section 11B is not applicable. The Tribunal held that, the Commissioner (A)
has rejected refund following Supreme Court decision in Doaba Co-operative Sugar
Mills 1988 (37) ELT 478 (SC) and powers of Central Excise Officers are
confined within statute of Central Excise Act, therefore the rejection of
refund is required to be upheld.
2.4 CCE,
Daman vs. Asian Plastowares Pvt. Ltd. 2013 (31) STR 594(Tri.-Ahmd)
The department
in this case objected for common appeal against two orders sanctioning refund.
The Tribunal observed that, two separate numbers were given to two orders and
common order not covering both refund claims hence there is no justification for
filing common appeal.
2.5
Ultratech Cement Ltd. vs. CCE, Bhavnagar 2013 (31) STR 600(Tri.-Ahmd)
In this case,
the refund claim filed under Notification No. 17/2009-ST has been rejected as
time barred for failure to file claim within one year from date of export of
goods. The Tribunal held that, it is settled law that Notification issued by
Government to be considered as part of Statute and the said Notification is
self contained providing for exemption by way of refund in respect of exports.
Filing of claim within one year from date of exports becomes statutory and
substantive requirement. It is further
held that, Tribunal being creature of law not to go beyond provision of law and
Statute and given relief.
2.6
Prithvi Hotels (Gujarat) Pvt. Ltd. vs. CST, Ahmedabad 2013 (31) STR 612(Tri.-Ahmd)
In this case the
appellant received OIO dated 09/04/2010 on 16/04/2010 and filed appeal against
the same on 01/06/2011. The Tribunal held that, Commissioner is not empowered
to condone delay of 14 months as section 85(3) of FA, 1994 is very clear and
provides specific time limit for filing appeal.
2.7 CCE,
Mangalore vs. Kudremukh Iron Ore Company Ltd. 2013 (31) STR 633(Tri.-Bang.)
The Tribunal in
this case held that, where the exemption under Notification No. 41/2007-ST is
available for “the whole of Service Tax”, the Education Cess also stands to be
exempt.
2.8 CIT
(TDS), Jaipur vs. Rajasthan Urban Infrastructure 2013 (31) STR 642(Raj.)
The High Court
in this case held that, if the agreement stipulating that service tax was to be
paid separately and it was not included in fee for professional/technical fees
then expression “any sum paid” appearing in section 194J relates to fees for
professional or technical services and therefore service tax amount paid separately
is not subjected to TDS.
2.9
Infinity Infotech Parks Ltd. vs. UOI 2013 (31) STR 653(Cal.)
In this case,
pursuant to audit, the SCN dated 18/04/2012 was issued for the financial years
2007-08 to 2010-11alleging that, if Audit team had not visited the appellant
premises the fact that, they were engaged in providing taxable service of
Renting of Immovable Property would not have been known to Dept and they had
willfully suppressed the facts within intent to evade service tax. However,
Court observed that, records indicate that in response to notice dated
13/04/2009 by jurisdictional authorities’ copies of lease agreements etc. have
been submitted. The Court held that, allegations against the appellant about
suppression were vague and the payment of service tax on premium for long term
lease was question of interpretation of law.
2.10 Hari
& Co. vs. CCE(ST), Tirunelveli 2013 (31) STR 681(Tri-Chennai.)
The department
in this case rejected refund claim as supporting documents submitted after
considerable delay as due to delay in issue of certificate by Port Trust
Authorities. The Tribunal held that,
assessee not to be penalized and export benefit not to be refused for no fault
of theirs. Refund claim filed within the stipulated time though relevant documents
submitted later to be treated filed within time and refund to be allowed.
3. Cenvat
Credit:
3.1 CCE & ST (LTU), Chennai vs. Turbo Energy Ltd. 2013 (31) STR 573
(Tri-Chennai)
The
assessee in this case claimed Cenvat credit of service tax paid on services
such as sales promotion, handling, storage, assembly, logistics, quality
services, repacking, warehousing, delivery etc. provided by agent located
outside India. The department sought to deny the credit. The Tribunal held
that, there is no reason to distinguish the services of Commission Agent
falling within the ambit of BAS on different footing as compare to other
services falling within the scope of same taxing category for the purpose of
allowing Cenvat credit.
3.2 Hindustan Zinc Ltd. vs. CCE, Jaipur 2013 (31) STR 575 (Tri-Del.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on;
·
Transportation of employees from residence to
factory and back.
·
Hiring of ambulance for treatment of employees
in case of accident is required to be kept as per the provisions of the
Factories Act.
·
Transportation of employee’s children from the
residential colonies to schools as the factory is located at a remote place,
and providing a residential colony for staff is essential and providing of transportation
for school children is more essential.
3.3 CCE, Panchkula vs. Jamuna Auto Industries Ltd. 2013 (31) STR 587
(Tri-Del.)
The
Tribunal in this case after relying on CBEC Circular No. 97/8/2007 dated
23/08/2007 allowed Cenvat credit of service tax paid on GTA services for
outward transportation of goods beyond place of removal as the freight was part
of the price on which duty has been discharged.
3.4 Jindal Pipes Ltd. vs. CCE, Meerut II 2013 (31) STR 588 (Tri-Del.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on Travel Agent
services availed at Head office by the Company’s officers and services of
maintenance of Head office.
3.5 Federal Mogul Goetze (India) Ltd. vs. CCE, Chandigarh-II 2013 (31)
STR 628 (Tri-Del.)
The Tribunal in this case allowed Cenvat credit of service tax paid
on insurance premium for protection of plant & machinery from risks and
hazards as the same though does not contribute to manufacture directly but
manufacture is made with such facility having indirect nexus.
3.6 United Telecom Ltd. vs. CCE, Bangalore-I 2013 (31) STR 636 (Tri-Bang.)
The
appellant in this case claimed Cenvat credit of service tax paid on stock
brokers service used for disposal of shares held by appellant in another
company. The Tribunal held that, integral connection between sale of shares and
any of the appellant’s business activities has not been established and
affidavit of Director does not bring out clear picture and therefore credit is
inadmissible.
3.7 Delta Energy Systems Ltd. vs. CCE, Delhi-III 2013 (31) STR 684 (Tri-Del.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on Clearing
house agent, erection and commissioning, inward freight, courier service,
credit card service, real estate agent and repair and maintenance service are
utilized in relation to business hence admissible as input service. It is
further held that, Cenvat credit of catering service would be eligible for
Cenvat credit only if the assessee is not charging to the employees.
3.8 J. K. Cement vs. CCE, Jaipur-II 2013 (31) STR 687 (Tri-Del.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on accident
insurance policy for workers as insurance for workers even contract workers is
required by law and insurance service has to be treated as service in or in
relation to manufacture of finished products.
3.9 MRF Ltd. vs. CCE&ST (LTU), Chennai 2013 (31) STR 689 (Tri-Chennai.)
The
appellant in this case claimed service tax paid on security services availed by
appellant for guarding the inputs which had been sent to the premises of
Job-Worker where the goods were converted into an intermediate product and sent
back to the factory of the appellant. The Tribunal held that, definition of
input service nowhere specifies that the services have to be received and
utilized within the factory and therefore there is no reason to deny Cenvat
credit on said security services. It is further held that, service tax paid on
security services availed at the guest house maintained by the appellant near
factory is not admissible as the said guest house is used for business process
as well as for satisfaction of personal needs.
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