1. Services:
Maintenance and Repair Service:
1.1 CC&CE, vs. Balaji
Tirupati Enterprises 2013 (32) STR 530 (All)
The High Court
in this case held that, goods used during repair service are goods deemed to be
sold in execution of works contract and therefore not in purview of levy of
service tax.
1.2 Jagat Machinery Manufacturers P. Ltd. vs. CCE, Ghaziabad 2013 (32)
STR 663 (Tri-Del)
The appellant in
this case, undertook job work of deshelling, reshelling and further processing
of old and worn out sugar mill rollers and the period involved was July 2003 to
February, 2006. The department confirmed demand under Maintenance or Repair
service. The Tribunal held that, definition of maintenance or repair service
amended w.e.f. 16/06/2005 and prior to 16/06/2005 it does not cover
reconditioning and restoration service and said activity was liable to service
tax w.e.f. 16/06/2005.
1.3 Hindustan Aeronautics Ltd. vs. CST, Bangalore 2013 (32) STR 783 (Tri-LB)
The appellant in
this case claimed exclusion of cost of goods sold or deemed to have been sold
to service recipient. The department contended that, benefit of Notification
No. 12/2003-ST is confined to sale of goods, excluding ‘deemed sale’. The
Tribunal observed that, precedent decisions found to limit scope of section 67
of FA, 1994 only to ascertain value of service component, wherever complex
transactions involving service and sale element including deemed sale were
presented for valuation of transaction as taxable service. It is also observed
that, jural bases of Larger Bench decision in Aggarwal Colour Advance Photo System 2011 (23) STR 608 (Tri-LB) was
eclipsed by binding authority of other decisions of Supreme Court and Delhi
High Court. In view thereof it is held that, as core dispute was settled by
higher authority of Supreme Court and Delhi High Court, there was no need for
Larger Bench to decide issued referred for its consideration and it is to be
decided by regular Bench.
Clearing & Forwarding Agent’s
Service:
1.4 CST, Mumbai vs. Shah Coal
Pvt. Ltd. 2013 (32) STR 568 (Tri-Mumbai)
The department
sought to demand tax on supervision of loading and transportation of coal by
road under Clearing & Forwarding Agent Service. The Tribunal held that,
section 65(25) of FA, 1994 does not define or describe ‘Clearing and Forwarding
operations’. The Board Circular No. B-43/7/97-TRU, dated 11/07/1997 clearly
specify functions undertaken by C&F Agent in normal course of business. The
said circular was issued at the time of inception of levy to be given weightage
in view of principles of ‘administrative construction’ of statute.
1.5 Karamchand Thapar & Bros. (Coal Sales) Ltd. vs. CST Kolkata.
2013 (32) STR 568 (Tri-Kolkata)
In this case,
the appellant was appointed by clients to supervise and involve in movement of
allotted quantity and quality of coal from collieries to their premises for its
consumption, without interruption and delay and remuneration for such movement
was fixed in accordance with quantity of coal received by principal at place of
its consumption. The Tribunal held that, it was not service of mere loading of
coal in railway wagons by collieries and its automatic onward movement to
pre-determined destination for consumption. The appellant was required to ascertain
correct quality and quantity of coal through strict supervision before or at
time of its loading in railway wagons, which indicated that, they had requisite
authority as agent for their principal to receive only agreed quantity of coal
and reject coal which is not conforming to specifications. Though destination
was already fixed, but all related services till coal reached its destination
was rendered by appellant. Hence, services rendered by the appellant were
connected with C & F operations and therefore liable to service tax.
It is held that,
it is not necessary to undertake all activities/services narrated in Mumbai
Commissionerate Trade Notice No. 8/97-ST. The activities/services mentioned in
CBEC Circular No B/43/7/97-TRU dated 11/07/1997 are only illustrative in nature
and not exhaustive. If person undertakes activities/renders services, not
mentioned in aforesaid list of services, but satisfies all ingredients of
definition of C&F Agent then he would fall within its scope.
Freight
financing charges collected from customers includes services connected with
C&F operations and therefore liable to service tax.
As per section
66 of FA, 1994 service tax is chargeable on value of taxable service received
by assessee. Assessee’s registered office was at Kolkata, where their
profit/loss account and balance sheet had been prepared on trial balance from
respective branch offices. Hence there was centralized accounting system at
Kolkata and Commissioner at Kolkata had jurisdiction to decide issue of
non-payment of service tax on taxable value received by assessee for services
rendered through various branches. Rules 4(2) and (3A) of STR, 1994 are
designed for convenience of taxpayers, for easy administration of FA, 1994 and
to avoid overlapping of jurisdiction and conflicting views in assessment of
service tax of same assessee rendering services from different locations.
Construction Service:
1.6 G. D. Builders vs. UOI 2013 (32) STR 673 (Del)
The High Court
in this case held as under;
- The scope and ambit of Commercial or Industrial and Residential construction service cannot be read down on imposition of service tax on works contract, which covers contractor only supplying labour or undertaking construction service, whether with or without supply of material. The levy under construction services is valid, the only condition being that, it should be on service element and not on materials or goods used, as power to levy Sales Tax or VAT is with State Government.
- After 46th amendment to Constitution of India composite contracts can be bifurcated to compute the value of goods sold/supplied in contracts for construction of building with labour and material. Service portion of composite contracts can be subjected to Service Tax. Aspect doctrine can be applied for bifurcating/vivisecting the composite contract.
- Notification providing for 67% abatement towards value of material used for computing service tax payable is to ensure that service element is taxable. It is alternative to otherwise subjective determination in each case, which may be cumbersome and require detailed examination for ascertainment of service element. It provides convenient, alternative, optional and hassel free method for exclusion of non-service element and payment of service tax provided requirements mentioned in the notification are satisfied.
- Service tax can be levied on service element. Computation of this component is matter of detail and not relating to validity of imposition of service tax. It is procedural and matter of calculation and merely because no rules are framed for computation, it does not follow that no tax is leviable.
Erection, Commissioning or Installation
Service:
1.7 Suvidha Engineers India Ltd. vs. CCE, Noida 2013 (32) STR 735 (Tri-Del)
The appellant
undertook and executed various turnkey projects which included activities of
fabrication, installation and commissioning during period 01/07/2003 to
15/06/2005. The department demanded
service tax under ECI service. The appellant contended that, their activities
brought under definition of Section 65(39a)(ii) (c ) in relation to heating,
ventilation, or air-conditioning w.e.f. 16/06/2005. The Tribunal held that,
installation of plant, machinery or equipment covered in the definition from
very beginning and it is very difficult to distinguish that heating system,
ventilation system, and AC system is different from heating plant etc. and
therefore activities of the appellant are taxable prior to 16/06/2005. It is
further held that, since appellant submitted monthwise details of payment
received on 05/09/2005, the department was free to issue SCN within one year
after details of value of taxable service was made available and there is no
reason to invoke extended period of limitation.
Site Formation and Clearance,
Excavation and Earth Moving and Demolition Service:
1.8 Karamjeet Singh & Co. Ltd. vs. CCE, Raipur 2013 (32) STR 740 (Tri-Del)
In this case the
issue was regarding the value of diesel supplied by service recipient free of
cost to assessee includible in gross amount for charging service tax. The
Tribunal after relying on Delhi High Court decision in Intercontinental
Consultants & Technocrats Pvt. Ltd. 2013 (29) STR 9 (Del.) held that
rule 5(1) of Valuation Rules, 2006 is invalid and ultra virus the provisions of
section 67 of FA, 1994. In view thereof, value of diesel supplied free of cost
by service recipient to assessee for providing taxable service would not be a
component of the gross value charged for service provided for computation of
tax under section 67.
2.
Interest/Penalties/Others:
2.1 Vihar Aahar Pvt. Ltd. vs. CST, Ahmedabad 2013 (32) STR 563 (Tri-Ahmd.)
The department in this case, confirmed demand falling within
jurisdiction of various other Commissionerate. The Tribunal held that, in
absence of Notification or Board Circular authorizing/directing Commissioner
Ahmedabad-I to issue SCN and adjudicate demand for services rendered at Mumbai,
Karnataka and Kanpur, the jurisdiction exercised for confirming demand is
beyond jurisdiction.
2.2 Eastern Shipping Agency vs. CST, Ahmedabad 2013 (32) STR 630 (Tri-Ahmd.)
The appellant in
this case filed refund claim subsequent to Order-in-Appeal reducing the
appellant’s tax liability. The Tribunal held that, first appellate
authority’s finding that payment not
shown as ‘receivables’ in balance sheet is not in consonance with Modi Oil & General Mills 2007 (210) ELT
342 (P&H) and not to carry Revenue’s case further. It is observed that, Chartered Accountant
certificate categorically certifying verification of books of accounts and upon
verification amount certified to have not been passed to clients. The decision
of Crane Betel Nut Powder Works 2010
(251) ELT 118 (Tribunal) and Mangal
Textiles Mills Pvt. Ltd. 2004 (171) ELT 160 (Guj.) are directly applicable
as CA certificate was undisputed.
2.3 WNS Global Services Pvt. Ltd. vs. CCE, Nashik 2013 (32) STR 657 (Tri-Mumbai)
In the present
case, refund claim was rejected on the ground that service provided by telecom
authorities by leasing of telecom lines not eligible as input service. The
Tribunal held that, exports undertaken electronically through dedicated lines
from office premises to telecom authorities and without dedicated lines, the
appellant cannot deliver output service, therefore leasing of telecom lines by
telecom authorities is input service. It is further held that, prior to 2006
there was no requirement for registration. If nexus can be established between
input service and output service, the appellant is entitled for credit.
2.4 Kijiji (India) Pvt. Ltd.
vs. CCE, Mumbai-I 2013 (32) STR 661 (Tri-Mumbai)
In this case,
the appellant claimed refund of input service credit on office utilities,
infrastructure support service for running office, chartered accountants
service, management consultancy service, insurance auxiliary service,
advertisement service and professional services. The department rejected refund
on the ground that there is no direct nexus between input services received and
output service rendered. The Tribunal held that, all the services are essential
in running business of rendering of output service “BAS” and appellant has
rightly entitled for refund of service tax paid on such services.
2.5 Havels India Ltd. vs. CCE, New Delhi 2013 (32) STR 668 (Tri-Del)
The appellant in
this case claimed refund under Notification No. 17/2009-ST in respect of
exports made prior to issuance of such Notification. The Tribunal observed
that, CBEC Circular No. 354/256/2009-TRU dated 01/01/2010 clarified that, new
notification does not bar exports prior to issuance of Notification therefore
scheme under Notification No. 17/2009-ST is applicable.
2.6 Kingfisher Airlines Ltd. vs. CST, Mumbai-I 2013 (32) STR 744 (Tri-Mumbai)
The department
in this case provisionally attached 10 aircrafts belonging to assessee against
default in payment of service tax dues. The Tribunal held that, only orders
passed under section 73 or 83 of FA, 1994 adjudging service tax liability or
penalty are appealable before Tribunal. Section 73C does not empower officers
to determine service tax liability or penalty and order passed thereunder is
not appealable to Tribunal.
3. Cenvat
Credit:
3.1 Deepak Fertilizers & Petrochemicals Corpn. Ltd. vs. CCE, Belapur
2013 (32) STR 532 (Bom)
The
High Court in this case held that, use of ‘directly or indirectly’ and ‘in or
in relation to’ in the definition of Input Service are words of width and
amplitude. The inclusive definition in rule 2(l) of CCR, 2004 is not restricted
to input services used only for procurement and inward transportation of
inputs. Input services utilized in relation to installation of ammonia storage
tanks situated outside factory of production are admissible as input service.
3.2 Rajdhani Crafts vs. CCE, Jaipur 2013 (32) STR 607 (Tri-Del.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on transport of
goods from factory to port, CHA service and terminal handling charges and
similar other charges incurred within port area.
3.3 Aircel Cellular Ltd. vs. CST, Chennai 2013 (32) STR 618
(Tri-Chennai)
The
appellant a mobile telecom operator has taken services of BSNL for connecting
their customers to other persons located in areas by landlines of BSNL and
claimed credit of service tax paid to BSNL. The Tribunal held that, BSNL did
not provide mere facility it was telecom service which was required by operator
for providing output services to their customers and hence input service under
rule 2(l) of CCR, 2004.
3.4 Nirma Ltd. vs. CCE&ST, Vadodara-I 2013 (32) STR 622
(Tri-Ahmd.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on pest control
service, services for maintaining garden in factory premises and for
construction of compound wall in view of the fact that, the appellant was under
obligation to maintain 33% of green area to mitigate effects of pollution as
per direction of Ministry of Environment and Forest. Further, the construction
of compound wall are input service as such construction is essential to
demarcate registered factory premises and for protection of goods from
pilferage and potential clandestine removal.
3.5 IFB Industries Ltd. vs. CCE, Bangalore 2013 (32) STR 650
(Tri-Bang.)
The
Tribunal in this case held that, outdoor catering service has nexus with
manufacturing activity when it is provided by manufacturer in discharge of
statutory obligation under section 46 of Factories Act. 1948 and it is factored
into cost of production of final product. On facts of the present case,
appellant has employed less than 250 workers during the period in dispute, they
did not have statutory obligation to provide canteen service, and hence it was
not input service eligible for taking Cenvat credit.
Cenvat
credit of service tax paid on repairs/maintenance of guest house is not
admissible in absence of nexus with manufacturing activity.
3.6 Nectar Lifesciences Ltd. (Unit-I) vs. CCE, Chandigarh 2013 (32)
STR 659 (Tri-Del)
The
Tribunal in this case held that, dismantling of plant is not input service
resulting in any tangible output or intimately connected with manufacture and
therefore Cenvat credit availed thereon is recoverable. Further, service tax
paid on installation charges of door is not input service when door not proved
to be capital goods under Central Excise Tariff.
3.7 Meghmani Dyes & Intermediates Ltd. vs. CCE, Ahmedabad 2013 (32)
STR 671 (Tri-Ahmd.)
The
Tribunal in this case allowed Cenvat credit of service tax paid on bank charges
paid in relation to purchase of raw material and sale of finished goods as same
are relatable to manufacture of final products.
3.8 CCE, Tirupathi vs. India Cements Ltd. 2013 (32) STR 672
(Tri-Bang.)
The
Tribunal in this case allowed service tax paid on insurance premium, though
paid by contractor as insurance of labourers being essential for smooth
functioning and amount of premium reimbursed by the manufacturer from part of
cost of cement.
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