CESTAT RULING M/s Xerox India Ltd Vs CST (Dated : April 11 ... · M/s Xerox India Ltd Vs CST (Dated...

CESTAT RULING

2012-TIOL-1967-CESTAT-DEL

M/s Xerox India Ltd Vs CST (Dated : April 11, 2012)

Service Tax – Stay / Pre-deposit of Tax – Business Support Services – Taxable Value -The dispute involved is that the appellants were not paying service tax on the full value realised under the contracts but were deducting value of materials supplied under each of the contract and was paying service tax on the service component –Held that : The issue is no longer res integra that in a contract for providing service of the type involved in this case the service component and value of materials can be separated - Notification 12/2003-ST also recognised this principle (Para 9).

2012-TIOL-1966-CESTAT-MAD

L S Mills Ltd Vs CCE (Dated : August 22, 2012)

Service Tax - Penalty - Service Tax on commission paid to overseas commission agents under reverse charge - The appellant is an exporter of goods and is entitled for refund of service tax paid - Penalty under Section 76 is set aside, by invoking the provisions of Section 80.

2012-TIOL-1965-CESTAT-AHM

M/s Gokul Refoils & Solvents Ltd Vs CCE (Dated : July 24, 2012)

Service Tax - Goods Transport Agency Service - Eligibility of Notification No. 32/2004-ST for recipient of service - Followed the decision of CESTAT in the cases of Texport Garments Vs. CST, Bangalore - (2009-TIOL-2578-CESTAT-BANG) and A.P. Paper Mills Ltd. (2009-TIOL-2577-CESTAT-BANG) - Recipient of GTA service is not required to furnish evidence of GTA not availing benefit of Cenvat scheme to qualify for the benefit of Notification 32/2004-ST (Para 4).


M/s India Trimmings Pvt Ltd Vs CCE (Dated : August 7, 2012)

Service Tax – Penalty under Section 78 – Service tax on GTA service and on Commission paid to overseas commissioner agent – Appellant paid the service tax with interest after pointing out by the Department – The appellants are entitled for CENVAT Credit on the service tax paid and it cannot be said that by suppressing the fact that the appellants are going to get extra benefit on account of suppression –Penalty under Section 78 set aside.


M/s Maltanb Construction Engineers (P) Ltd Vs CCE, C & ST (Dated : July 23, 2012)

Service Tax - Stay/Dispensation of pre-deposit - Cleaning services provided to Charitable Hospital - Prima facie not taxable in view of CBEC Circular dated 17.09.2004 - Pre-deposit waived.


M/s Jaisu Shipping Co P Ltd Vs CCE (Dated : December 04, 2012)

ST – Port Services - supply of fresh water by barge and bunker to vessels is part of port services – it is not a simple transaction of sale of water - from the invoice it is quite clear that it is not the cost of water alone that is charged, but it includes other elements – supply of bunkers - since no Sales Tax has been paid and no evidence has been shown that the transaction is a transaction of right to use and was liable to salestax, the natural conclusion would be that the transaction is supply of tangible goods for use without parting with the right of possession and control – appellants have not made a prima facie case in favour - it also cannot be said that the case against the appellant is hundred per cent against them, since the matter has to be heard in greater detail to understand the nature of transaction and interpretations that are possible on the basis of facts – Pre-deposit ordered of Rs.3.5 Crores: CESTAT [paras 6, 8, 9 & 10]

Also see analysis of the Order

2012-TIOL-1956-CESTAT-BANG

M/s Rajashree Cements Vs CCE (Dated : July 19, 2012)

Service Tax – CENVAT – Eligibility of CENVAT Credit of Service Tax paid on Mobile Phone Service during the period from October, 2004 to October, 2005 – It is not in dispute that the mobile phones were owned by the appellant and supplied to their employees to be used in or in relation to the manufacture and clearance of their final product (cement) – Followed the decision of Excel Crop Care ( 2008-TIOL-568-HC-AHM-CX ) - Service Tax paid on Mobile phones is eligible for Cenvat Credit (Para 1 & 2).


M/s Flyjac Logistics Pvt Ltd Vs CST (Dated : July 24, 2012)

Service Tax – Stay / Pre-deposit of Tax – Cargo Handling Service - Demand - The dispute relates to amount collected from the importers as airfreight charges which were in excess of the actual freight charges - The submissions on behalf of the assessee that the differential amount is a profit made in freight appears, prima facie, not acceptable – The appellants have not rebutted the finding of fact that they have acted as console agents - The appellants have not made out a prima facie case for total waiver of the dues as per the impugned order – Ordered for pre-deposit of Rs.25 lakhs (Para 6 & 7).


M/s Eduquity Career Technologies Pvt Ltd Vs CST (Dated : August 06, 2012)

Service Tax – Stay/Pre-deposit of Tax – Limitation - Management Consultant Service -It is not in dispute that the entire amount was included by the appellant in their ST-3 returns, albeit as non-taxable - They also declared in their returns that these amounts were based on their books of accounts - At the stage of audit objection, they produced these books of accounts including the agreement, which was in July, 2006 -Nevertheless, the SCN came to be issued only in June 2008 - This delay is not satisfactorily explained in the SCN or in the O-I-O or in the Order-in-Appeal - Prima facie , the appellant appears to have a case on the ground of limitation against the impugned demand - Waived pre-deposit of adjudged dues (Para 4).


M/s Electrical Manufacturing Co Ltd Vs CCE (Dated : July 24, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Switching over to Works Contract Service with effect from 01.06.2007 in respect of ongoing contracts on which service tax was paid under Erection, Commissioning or Installation service – Prima facie case

has been made out for waiver of pre-deposit in view of decisions that prior to 01.06.2007, no service tax was payable.


Erode Milk Consumer Co-Operative Society Ltd Vs CCE (Dated : July 17, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Business Auxiliary Service –Procuring milk and milk products and selling them at a price fixed by the supplier –The appellant are acting as an agent – No prima facie case for waiver of pre-deposit –50% of the service tax ordered to be deposited.


CCE Vs M/s Fairline Worldwide Express (Dated : July 17, 2012)

Service Tax – ROM – Service Tax – Matter remitted to the Tribunal by High Court to consider the ROM application on merits in terms of Section 35C(2) of the Central Excise Act, 1944 - Held: As per the provisions of Section 35C(2), ROM application filed beyond six months from the date of the order cannot be entertained – ROM application dismissed.

2012-TIOL-1936-CESTAT-MUM

Abhijit Travels Vs CCE (Dated : December11, 2012)

Stay application against Service Tax demand of Rs.17,14,394/- upheld by Commissioner (A) pending before CESTAT – Department initiates recovery action u/s 87 of the Finance Act, 1994 by issuing notice to service-recipient to deduct Rs. 1 lakh per month from amount payable by service-recipient to the applicant – amount in excess recovered in this manner – CESTAT vide order dated 03.07.2012 ordered for withdrawal of this instruction – since order not honoured, applicant filing miscellaneous application praying for directions to be issued to department to withdraw notice and return the excess amount recovered over and above Rs.17,14,394/- of service tax payable by them – since AR submitting that notice u/s 87 has been withdrawn and assuring that amount would be returned, compliance was called for on 19.11.2012 by CESTAT vide order dated 11/12.10.2012. [ See 2012-TIOL-1935-CESTAT-MUM ]

Matter adjourned on request of Revenue to 10.12.2012 – on 11.12.2012, AR submitting a letter of Dy. Commr (Review), CE, Raigad that certified copy of CESTAT order not received as yet and based on photocopy of order received from

Commissioner(AR), matter is under process and order will be implemented only after acceptance by CCE, Raigad & seeking four weeks more time.

Wilful disobedience of directions of CESTAT, WZB, Mumbai – Dy. Commissioner directed to show cause as to why contempt proceedings should not be initiated against him for non-compliance of CESTAT order dated 12.10.2012 seeks to initiate contempt proceedings against Deputy Commissioner, Service Tax Division, Raigad for wilful disobedience of the directions contained in its order – Notice returnable within 15 days. [para 3]



Abhijit Travels Vs CCE (Dated : October 11, 2012)

Stay application against Service Tax demand of Rs.17,14,394/- upheld by Commissioner (A) pending before CESTAT - Department initiates recovery action u/s 87 of the Finance Act, 1994 by issuing notice to service-recipient to deduct Rs. 1 lakh per month from amount payable by service-recipient to the applicant - amount in excess recovered in this manner - CESTAT vide order dated 03.07.2012 ordered for withdrawal of this instruction - since order not honoured, applicant filing miscellaneous application praying for directions to be issued to department to withdraw notice and return the excess amount recovered over and above Rs.17,14,394/- of service tax payable by them - since AR submitting that notice u/s 87 has been withdrawn and assuring that amount would be returned, compliance called for on 19.11.2012. [para 2]


M/s Modipon Ltd Vs CCE (Dated : October 3, 2012)

CENVAT - Appellants discharged Service Tax liability in respect of GTA services employed for transport of inputs to their factory and availed CENVAT credit of the same – department alleging that the said GTA service is not an Input Service and appellant should have paid ST in cash - even after deletion of Explanation in Rule 2(p) of CCR, 2004 the GTA services received would still be entitled to be considered as output service in terms of the provisions of Rule 2(r) of CCR, 2004 – Division bench decision in Shree Rajasthan Syntex Ltd. (2011-TIOL-1320-CESTAT-DEL) . prevails over Single Member decision in Iswari Spinning Mills (2011-TIOL-767-CESTAT-MAD) -appeal allowed with consequential relief: CESTAT [paras 5 & 6]


M/s Vivek Ltd Vs CST (Dated : July 23, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Demand of CENVAT Credit on input services as the appellants are involved in sale of electronic goods – Appellants contend that they are also rendering taxable service of erection, commissioning and attending to the complaints – Prima facie, activity of sale at show room is not taxable service – Pre-deposit of 70% of the Credit is ordered.


Mahindra Logistics Ltd Vs CC, CE & ST (Dated : October 8, 2012)

ST - Mahindra and Mahindra Limited is a legal entity which is having two separate divisions – appellant is the logistics division which provided various logistics services to the Farm Equipment sector Division – merely by taking separate ST registrations it cannot be said that both are separate legal entities – demand for period 2007 to 10.09.2008 not sustainable – for the period thereafter as the appellant submits that they have become separate legal entities and were registered at Mumbai office who discharged ST liability on the service rendered by them at Nagpur, fact needs verification from R/S Mumbai – matter remanded: CESTAT [paras 6 & 7]


2012-TIOL-1918-CESTAT-KOL

M/s Orissa Mining Corporation Ltd Vs CCE,C&ST (Dated : August 23, 2012)

Service Tax – Refund – Refund not allowed on the ground that the appellant is not an exporter - It is not in dispute that the goods manufactured by the appellants had been exported through canalizing agency, M/s MMTC in view of the Export & Import Policy 2004-2009 – In terms of the agreement between the appellant and M/s MMTC, if any dispute arising between M/s MMTC and the foreign buyers, then the sellers shall accept the full liability under the same without dispute - These facts indicate that the agreement though termed as sale agreement between the appellant and M/s MMTC, but there is an inextricably link between the goods exported and the sale of goods by the appellant for export through M/s MMTC - In the case of Azad Coach Builders (2010-TIOL-70-SC-CST-CB) , the Supreme Court allowed the benefit of export under Karnataka Sales Tax Act observing that when there is an inseverable link in the transaction of sale or purchase of goods with the export of goods by the exporter to the foreign buyer, the benefit under Sub-section 3 of Section 5 of Central Sales Tax, 1956 is admissible - No doubt, the said judgment is delivered in the case of Central Sales Tax, but it has relevance in the context and needs to be examined and applied to the present case – Matter remanded for fresh decision (Para 5).


M/s Shreenathji Builders Vs CCE (Dated : September 11, 2012)

Service Tax - Commercial & Industrial Construction Services - Demand - Stay /Dispensation of pre-deposit - The contract for construction was entered into by the service provider with the service receiver on 10.07.2004 i.e. prior to Service Tax liability on Commercial & Industrial Construction services came into existence. The dispute is whether the appellant has provided the services prior to 10.09.2004 and raised the bills subsequently. It is difficult to accept that in two months, the service provider could have completed 75% of the job. Prima facie case not made out for complete waiver of pre-deposit of the amounts involved. (Para 5 & 6)


M/s VPR Mining Infrastructure Pvt Ltd Vs CC, CE & ST (Dated : January 18, 2012)

Service Tax – Pre-deposit by way of debit in CENVAT account - Revenue Filed Misc. Application on the ground that the pre-deposit by way of debit in CENVAT account is not in order – Held that : the longstanding practice of appellants being allowed to make pre-deposits by way of debit in CENVAT account is still in vogue - No provision of law has been barring such practice – Misc. Application rejected (Para 2).


M/s Steel Authority Of India Ltd Vs CCE(Dated : September 6, 2012)

Central Excise - CENVAT - Input Service - Rent-a-Cab - Goods Transport Agency -Input Service Distributor - Non-filing of ST3 Returns - Denial of Credit - Stay /Dispensation of pre-deposit - Cenvat credit in respect of rent-a-cab service availed for bringing the staff and workers to the factory and dropping them back is covered under the definition of 'input service', and credit is admissible. Denial of credit of GTA service on the ground that, ST3 returns were not filed by the ISD, is not correct. Prima facie case made out for grant of stay. (Para 5)


CC & CE Vs M/s Xiotech India Pvt Ltd (Dated : June 1, 2012)

Service Tax – Refund – Appeal filed by the Revenue on the ground that 'Group Medical Insurance' applicable to the employees and the families could not be treated as 'input services' in respect of the 'Information Technology Services' exported by them –Followed the decision of Stanzen Toyotetsu India (2009-TIOL-697-CESTAT-BANG) -There is no reason for interfering with the impugned order of the Commissioner (Appeals) (Para 7).


Mr Y Ramachandraiah Vs CCE (Dated : March 20, 2012)

Service Tax – Demand – Mis-match between the duty confirmed and the findings in the body of the O-I-O - prima facie, there is a mis-match between the demand as confirmed by the Commissioner and the findings in the body of the order - matter requires fresh consideration by the Commissioner (Para 4).


CC, CE & ST Vs Mr Ch Lazarus (Dated : July 11, 2012)

Service Tax – Service Tax Demand on Partnership firm – SCN issued after death of one of the Partners of the Partnership Firm and reply to SCN filed by the legal heir –Original authority confirmed the demand – Commissioner (Appeals) sent the case back to the adjudicating authority for issue of appropriate directions to the firm to submit the reply to the notice and to entertain reply from the firm only and not from the legal heirs of the deceased unless they were included as a partner in place of their father in the reconstituted firm – Revenue filed appeal against the Commissioner (Appeal) order on the ground that the Commissioner (Appeals) did not have the power of remand – Held that : The basic question of fact emanating from the above submissions is whether the partnership firm stood dissolved on 22/02/2008 or continued thereafter - Any deed of partnership is not forthcoming - This is a question to be addressed by the original authority – The partnership firm of 4 partners in this case stood dissolved on 22/02/2008 with the death of Ch. Devadanam unless the partnership deed contained a contract to contrary - Whether the partnership deed expressly or by necessary implication provided continuance of the firm in the event of death of one of the partners is a pure question fact and the same has to be settled by the original authority after giving all the surviving partners as well as the legal heir of the deceased partner a reasonable opportunity of adducing evidence - The Commissioner (appeals), albeit without the power of remand, took the correct view that the matter required to be re-adjudicated (Para 6).


CST Vs M/s D & B Transunion Analytic And Decision Services Private Ltd (Dated : July 16, 2012)

Service Tax – Refund claim under Rule 5 of the CENVAT Credit Rules, 2004 for the period prior to obtaining registration with the department - Refund cannot be rejected in view of the precedent decisions.


Canon School Of Catering And Hotel Management Vs CST (Dated : July 17, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Commercial coaching or training service - Prima facie, benefit of exemption under Notification No 24/2004 ST dated 10.09.2004 is admissible to the assessee – Pre-deposit waived.


CST V M/s Applied Materials India Pvt Ltd (Dated : March 8, 2012)

Service Tax – Refund – Power of Commissioner (Appeal) to remand the case back to original authority – It is clear from the impugned order that, though a connection was found by the appellate authority between the exported output service and the input services in question for the purpose of refund under Rule 5 of the CENVAT Credit Rules, a final decision was, nevertheless, left to the lower authority on the nexus issue - the ld Commissioner (Appeals) erred in assuming that the nexus issue required to be examined on the basis of Chartered Accountant's certificate to be produced by the party in terms of the Board's Circular dated 19.1.2010 - It is also indisputable that the procedure laid down by the Board in the aforesaid Circular was not available to the original authority when it passed the order of adjudication - The appellate authority required the original authority to follow that procedure, and rightly so – Directed the original authority to quantify the amount of refund on the basis of Chartered Accountant's certificate to be produced by the party (Para 4).


M/s BSNL Vs CCE (Dated : July 27, 2012)

Service Tax - CENVAT Credit on equipment installed at different Secondary Switching Areas availed by BSNL Salem - If the DGM (Projects), Salem followed the procedure of getting registered as "input service distributor" and then distributed the credit to SSA Salem there was nothing wrong in the credit availed by the appellant - The issue involved is one of procedures and not a case of mis-utilisation of any ineligible credit –Impugned order demanding CENVAT Credit is set aside.


M/s Cholamandalam Ms General Insurance Co Ltd Vs CCE (Dated : July 18, 2012)

Service Tax - Stay/Dispensation of Pre-deposit – CENVAT Credit of service tax paid by the authorized service stations for repair of vehicles damaged - The said repairs were undertaken under cashless scheme on behalf of Insurance Companies - Prima facie credit on such service is admissible as input service for Insurance - Pre-Deposit waived.


M/s Shapoorji Pallonji & Company Ltd Vs CST (Dated : November 7, 2012)

ST- Commercial or Industrial Construction Service - appellant was given mobilisation advance of 15% of the contract value by client - appellant discharged the ST liability at the rate of 12.36% as per the rate prevalent when the advance was received -subsequently when they raised the running bills, when the services were rendered, the service tax rates came down to 10.30% - appellant calculated ST liability on the amounts of bills raised by them and reduced the amount of service tax liability of the advance which was adjusted against such running bills- department contending to the contrary- prima facie calculations as has been worked out by the department seem to be relevant, considering the decision of the Tribunal in the case of Vigyan Gurukul (2011-TIOL-1724-CESTAT-DEL) - however since the aspect of ‘mobilisation advance' has not been discussed, issue needs to be gone into detail at the time of hearing-appellant to be put to some condition for hearing the appeal- pre-deposit ordered of Rs.4 lakhs: CESTAT [para 5]


M/s Shri Amrut Metal Coats Vs CCE (Dated : September 27, 2012)

Service Tax - Business Auxiliary Service - Powder coating on metal components by Job-worker - The appellate authority has not considered the factual matrix as regards the consumption of powder coated material cleared by the job worker to the principal. It also has to be seen that whether the principals have consumed these materials for manufacturing of finished goods on which the Excise duty is payable or paid, to extend the benefit of notification 8/2005-ST to the job-worker. All these facts as reported by the Superintendent of Central Excise, were not before the first appellate authority.Matter remanded to the appellate authority to consider these facts and pass orders afresh. (Para 4)


CCE Vs M/s Amar Nath Aggarwal Builders Pvt Ltd (Dated : April 16, 2012)

Service Tax – Construction of Residential Complex Service – Whether the Ex planation to clause 65 (105) (zzzh) of Finance Act, 1944 is prospective or retrospective - The explanation clause 65 (105) (zzzh) of Finance Act, 1944 added on 1.7.2010 can have only prospective effect and cannot have retrospective effect because the explanation

added creates tax liabilities for past periods against position clarified by CBEC itself (Para 6 & 8).


M/s Andhra Pradesh Mineral Development Corporation Ltd Vs CC, CE & ST (Dated : July 12, 2012)

Service Tax - Stay / Pre-deposit of Tax - Demand - It is not in dispute that service tax was collected by the appellant from their customers but did not credit it the exchequer - They do not have prima facie case against the impugned order - The appellant has not pleaded financial hardships in the present application - The plea of limitation is also not convincing in the absence of any time bar provision having been incorporated in Section 73A of the Act - Ordered for Pre-deposit of Rs.2 Crores (Para 3 & 4).


CST Vs M/s Akamai Technologies India Pvt Ltd (Dated : July 31, 2012)

Service Tax - Power of Commissioner (Appeal) in remanding the case - Refund -Respondents claimed refund of accumulated CENVAT Credit on input services used for export of Information Technology Software Service and Business Auxiliary Service -Original authority rejected the refund the ground that there was no nexus between the input and output service - The Commissioner (Appeals) found nexus in respect of all services except 'Air Travel Agent service and ordered lower authority to grant consequential relief to the assessee on submission of Chartered Accountant's certificate - Held that : The order of the Commissioner (Appeals) is not a remand order and he has clearly held that the refund was available in respect of all services except Air Travel Agent service (Para 7).


M/s Axis Bank Ltd Vs CST (Dated : December 3, 2012)

ST - ‘Issue Management' related service provided by merchant bankers are classifiable under ‘Banking and other financial service' of the FA, 1994 & not as ‘Underwriting services' - Prima facie applicant liable to pay ST in view of Tribunal decision in Jubilant Life Sciences Ltd. (2012-TIOL-199-CESTAT-DEL) - Pre-deposit ordered of Rs.50 lakhs & applicant directed to report compliance on 3 rd December, 2012 - Since applicant has not made the pre-deposit of Rs.50 lakhs, appeal dismissed for non-compliance with provisions of s.35F of CEA, 1944 r/w s.83 of FA, 1994: CESTAT [para 2]


M/s Paul Merchants Ltd Vs CCE (Dated : November 27, 2012)

Service Tax - Money Transfer from abroad - whether Export or Service rendered in India – It is export of service – CESTAT by Majority (Third Member): The term "export" has not been defined either in Article 280 (l)(b) or in any of the article of the Constitution of India. There is no question of Export of Service Rules, 2005, being in conflict with Article 286 (1) (b) of the Constitution of India. There is nothing in Export of Service Rules, 2005 which can be said to be contrary to the principle that a service not consumed in India is not be taxed in India. What constitutes export of service is tobe determined strictly with reference to the provisions of Export of Service Rules, 2005. Not doing so and leaving this question to be determined by individuals tax payers or tax collectors for each service, based on their deductive ability would result only in utter confusion and chaos. Money transfer service is being provided by the Western Union from abroad to their clients who approached their offices or the offices of their Agents for remitting money from to friends/ relatives in India. The service being provided by the agents and sub-agents is delivery of money to the intended beneficiaries of the customers of WU abroad and this service is "business auxiliary service", being provided to Western Union. It is Western Union who is the recipient and consumer of this service provided by their Agents and sub-agents, not the persons receiving money in India. The consumer of the service provided by the Agents and sub-agents of WU in India is the Western Union, located abroad who use their services for their money transfer business not the persons receiving money in India. Since the service provided is Business Auxiliary Service classifiable under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 2005, and has been provided in relation to business of Western Union located abroad, and the payment for the service has been received in India in convertible foreign currency, the same has to be treated as export of service. The destination has to be decided on the basis of the place of consumption, not the place of performance of service. Reimbursement of advertisement and sales promotion activities received from WU is not taxable as the same are for the services provided to WU, which are export of service. The services provided by the Agents and sub-agents throughout during the period of dispute are classifiable as "Business Auxiliary Service" under Section 65(105)(zzb) read with Section 65(19) of the Finance Act, 1994 and the same have been exported in terms of the provisions of Rule 3(1)(iii) read with Rule 3(2) of the Export of Service Rules 2005 and hence no service tax is leviable.



M/s Barbwire Security Services Vs CCE (Dated : June 28, 2012)

Service Tax – Demand – Original authority confirmed the service tax demand and appropriated the full payment towards duty - The O-I-O was reviewed in the department and an appeal accordingly filed with the Commissioner (Appeals) for upward revision of the assessee's tax liability and also wanted penalties to be imposed under Sections 76, 77 & 78 of the Finance Act, 1994 – Held that: When the department wanted the tax liability of the assessee to be revised, it was incumbent on the appellate authority to record a clear finding and to spell out in quantitative terms what should be the correct tax liability of the assessee - When the department wanted the assessee to be penalised under the provisions invoked in the SCN, again, it was incumbent on the appellate authority to consider the plea and, in the event of the

assessee being found liable to any such penalty, determine the quantity of the penalty - None of these is forthcoming in the case - Needless to say that The Tribunal is unhappy over the manner in which the impugned order was passed (Para 4).


M/s ACE Credit Vs CCE(Dated : July 19, 2012)

Service Tax – Business Auxiliary Service – Demand – The appellant was marketing the services provided by the Banks - The terms and conditions of the relevant Agreements show that the appellant was using the infrastructure, staff and expertise to market products of the Banks - The appellant was referred to as "Direct Sales Association/Agent", in the agreements - The products of the Banks were nothing but “Banking services” – Hence, ex facie, the appellant was marketing the services provided by the banks - The activities squarely fell within the ambit of "promotion or marketing of services provided by client" which function was a part of the definition of BAS since 1.7.2003 - The liability of the appellant to pay service tax under the head “BAS” in terms of clause (ii) of the definition of this service under Section 65 (19) of the Act during the entire period is undeniable - Hence, the plea that the appellant was liable to pay service tax only from 10.9.2004 in terms of clause (vi) of the definition of BAS is not acceptable (Para 3).

Service Tax – Business Auxiliary Service – Demand – Limitation - There was no disclosure of material facts before October 2004 - In other words, during the extended period, there was suppression of facts by the appellant, which justified invocation of the proviso to Section 73 (1) of the Act (Para 4).

Service Tax – Business Auxiliary Service – Penalty - The appellant seems to have believed, on the basis of the terms and conditions of the Agreements, that their liability to pay service under BAS arose under clause (vi) of the definition - It is not in dispute that they got themselves registered with the department and paid service tax under BAS from 10.9.2004, the date on which clause (vi) became a part of the definition - It is also on record that the appellant invoked the “Extra-ordinary Taxpayer-Friendly Scheme” introduced in September 2004 - They invoked this scheme in October 2004 with a view to avoid penal liability - In the totality of these circumstances there appears to be a valid ground for the appellant to claim the benefit of Section 80 ibid, where under, if reasonable cause for non-payment of tax was shown to exist, penal action could be averted - Reasonable cause existed in this case – Penalty set aside (Para 5).


Aban Loyd Chiles Offshore Ltd Vs CST (Dated : June 7, 2012)

Service Tax - Storage and Warehousing Service - Amount paid in connection with operations of Floating Storage and Offloading Unit through which crude oil from the subsea wells is transported to fleet - Not covered under the ambit of Storage and Warehousing Service as defined under Section 65(105)(zza) - Appellant not liable to pay service tax.


M/s Chandigarh Network System (P) Ltd Vs CCE (Dated : March 29, 2012)

Service Tax – Condonation of Delay – 765 days delay in filing of Appeal – Appellants contention that they did not receive the order - The proof advanced by the Revenue indicates dispatch of the said order to the a ppellants - There is no complete address given in the said registry - As such, a doubt can arise as to whether the said order stand actually received by the appellant or not - The order was passed in 2009, revenue only approached the appellant in 2011 for recovery of dues - If the Revenue would have approached the appellant for recovery of the confirmed demand at an early date, the appellant could have come to know about passing of the impugned order – Delay Condoned (Para 6 & 8).


CCE Vs M/s Maktel Systems (Dated : September 14, 2012)

Whether during April to September, 2005 ST on GTA services could be paid from CENVAT credit availed for ST paid on GTA – since prior to 19.04.2006 in view of explanation contained in rule 2(p) of CCR, 2004, the service for which the service receiver is liable to pay Service Tax is deemed as an ‘output service', answer lies in the affirmative: CESTAT [para 3]

Whether the appellant is eligible for the credit of Service Tax paid on outward transportation of finished goods from the place of removal during the period from April, 2005 to September, 2005 - issue is settled in favour of the assessee by the Karnataka High Court decision in M/s. ABB Ltd., 2011-TIOL-395-HC-KAR-ST –inasmuch as prior to 01.03.2008, credit of ST would be available in respect of ST paid on outward transportation of finished goods from place of removal: CESTAT [paras 5 & 6]

Entire demand and penalties imposed by adjudicating authority cannot be sustained –no infirmity in order of Commissioner(A) - Appeal filed by the Revenue rejected....para 6


M/s Prathima Estates Ltd Vs CC, CE & ST (Dated : July 3, 2012)

Service Tax – Stay / Pre-deposit of Duty – Construction of Complex Service – There is no prima facie case for the appellant against the demand of service tax – The activities undertaken by the appellant included flooring, painting, commissioning of lift and other works necessary for completion of the individual residential flats into dwellable condition - Prima facie, these activities were covered by the definition of

'Construction of Complex Services' and liable to pay service tax, which they did not pay - The plea for treating the gross value as cum-tax value was prima facie liable to be considered by the revisionary authority - The plea for abatement under certain notifications was considered by the learned Commissioner – Ordered for pre-deposit of Rs. 5 lakhs (Para 3).


M/s Gondal Prestressed Concrete Vs CCE (Dated : September 18, 2012)

Service Tax - Goods Transport Agency Service - Demand - Stay / Dispensation of pre-deposit - The assessee receives truck load of sand and claimed benefit of Notification No. 34/2004-ST as the gross amount charged by the service provider is Rs. 1,500/-. In the assessee's own case for the subsequent period, the same authority has allowed the benefit of the notification. Also in another case, the Tribunal had granted stay. Prima facie case made out for grant of stay. (Para 3 & 4)


M/s Mohindra Word City (Jaipur) Ltd Vs CCE (Dated : April 4, 2012)

Service Tax – Refund - Appellants providing various services to SEZ and DTA units -CENVAT credit taken on various input services - Filed refund claim in terms of notification No.9/09-ST which provides exemption for input services used for providing services to SEZ - The dispute is what should be the basis for apportioning the value of input services relatable to service rendered in area outside SEZ – Held that : The ratio based on areas developed in SEZ and outside SEZ is not a good criterion for the purpose for various reasons - Revenue will not be able to do verification of the measurements considering the activity involved vis-a-vis amount of refund to be granted - The quality of development and facilities provided inside SEZ and outside SEZ are likely to be different - The period during which such activity was carried out also is not easily determinable - Ratio of value of services realized for output services rendered in areas inside SEZ and outside SEZ is easily determinable and does not involve the defects pointed out above for the ratio of areas - Refund may be granted adopting the ratio of value of services rendered – Matter remanded for fresh consideration (Para 5).


M/s Kijiji (India) Pvt Ltd Vs CCE (Dated : September 6, 2012)

Refund - ST - Services such as legal services, market data, payroll processing, customer support activities etc. are essential in running the output services namely “BAS” to customers located abroad – any service which has nexus with business activity has to be treated as ‘Input Service' – appellant entitled to refund of ST paid on input services – Appeal allowed: CESTAT [para 6.1]



CST Vs M/s Mercedes Benz Research And Development India (P) Ltd (Dated : July 6, 2012)

Service Tax - Denied Credit of tax paid on various services viz., rent paid on car parking, cafeteria and terrace of the building, in-house training of professionals, credit of service tax paid on to Chartered Accountant - Commissioner (Appeals) allowed credit on these input services in the light of Board's Circular No. 120/01/2010-ST dated 19.01.2010 - Held that : The grounds of appeal in the department's appeal do not indicate any reason to question the validity of the finding of the Commissioner (Appeals) that these services should be as ‘input services' in relation to the ‘output services' rendered by the assessee - It merely says that the assessee has not made any attempt to prove that they are related to ‘output services' (Para 6.7).


M/s Peninsular Capital Market Ltd Vs CCE, C & ST (Dated : June 11, 2012)

Service Tax – Stay/Pre-deposit of Tax – Stock Broker Service – The Appellants collected amounts from the customers in the name of 'Brokerage charges' up to 2.5% and a transaction charge at a rate varying from 0.006% to 0.009% which is payable to the stock exchange based on their annual turnover - As regards the transaction charges, the documents submitted in the form of 'FAQ-Equities', prima facie, make it clear that the appellants are entitled to collect transaction charges levied by NSE –Hence, the same cannot be treated as charges towards stock brokerage – Waiver of dues as per the impugned order and stay of recovery (Para 6).


M/s Premier Sales Retread Vs CST (Dated : December 13, 2011)

Service Tax – Stay/Pre-deposit of Tax - Maintenance or Repair Service – Retreading of old and used Tyres - Prima facie, the submission of the ld advocate that the retreating activity will amount to manufacture, is not legal - However, the benefit of Notification No.12/03 is available – Ordered for pre-deposit of Rs.2 Lakhs (Para 5).


M/s Quantium Mail Logistics Solutions India Pvt Ltd Vs CST (Dated : June 22, 2012)

Service Tax – Courier Service – Demand – The plea of the appellants is that the alleged non-payment of service tax on a part of the value declared in the month of September 2007 is incorrect and the same is only a clerical mistake - The dispute relates to verifiable facts - The appellant should produce necessary documentary evidence like invoices relating to the two payments, the details of cheques under which the amounts were received from the service recipient and Bank statement and other relevant documents to show that this was merely due to arithmetical mistake –Matter remanded to original authority for fresh decision (Para 5).


CCE Vs M/s Suzlon Wind International (Dated : July 20, 2012)

Service Tax – Refund – Refund of Education Cess under Notification No.41/2007-S.T dated 6.10.2007 – CBEC vide Circular No.134/3/2011-ST dated 8.4.2011 clarified that refund available in terms of Notification No.41/2007-S.T includes refund of education cess and secondary & high education cess – Revenue Appeal dismissed (Para 4 & 5).


The India Cements Ltd Vs CCE (Dated :July 17, 2012)

Service Tax - CENVAT - Eligibility of CENVAT Credit on Outward transportation of finished goods from the place of removal - Outward transportation of finished goods from place of removal covered by definition of 'input service' upto 31.03.2008 - The assessees are entitled to claim CENVAT credit on GTA services availed for outward transportation of their final products from their factories (place of removal) to their customer's premises during the period prior to 31.3.2008 (Para 3).


M/s Vishal Enterprises Vs CCE (Dated : April 17, 2012)

Service Tax – Stay / Pre-deposit of Tax – Rent-a-Cab Scheme - A close perusal of records, prima facie, indicates that the appellant was collecting rent from the aforesaid company on the basis of the seating capacity and mileage of the vehicles which were allowed to be used by the said company for a certain period - The records show that the vehicles were maintained by the appellant in accordance with the specifications laid down by the service recipient - The activity, prima facie, amounts to operation of rent-a-cab scheme by the appellant for the benefit of service recipient -Ordered for pre-deposit of Rs.2.5 Lakhs (Para 3).


M/s Solotech Unique Service Centre Vs CST (Dated : March 16, 2012)

Service Tax – Condonation of delay by Commissioner (Appeals) - There is more than two years delay in the filing of the appeal before the Commissioner (Appeals) by the Appellants – Commissioner (Appeals) cannot condone delay beyond 30 days (Para 6).


Mr M M Sulaiman Vs CCE (Dated : June 27, 2012)

Service Tax – Stay / Pre-deposit of Tax – Real Estate Service - In connection with the sale and transfer of the estate, the appellant along with other persons have rendered certain services and received an amount of Rs.4.88 Crores by the appellant - The activities undertaken by the appellant, as per the agreement, prima facie, fall under the category of "Real Estate Services" - Therefore, if Rs.4.88 crores is taken as the service charges received by the appellant, the tax liability comes to around Rs.49 lakhs only - The appellant claimed that they already deposited Rs.27,85,793/-Ordered for pre-deposit of Rs.20 lakhs (Para 5.1 & 6.1).


Sri Gopi Moothedath Vs CCE (Dated : May 8, 2012)

Service Tax – Stay / Pre-deposit of Tax – Construction of Residential Complex Service – the original authority dropped the proceedings and the demand has arisen due to the order-in-revision passed by the Commissioner - The agreement is a combined agreement for sale of undivided share of land and subsequent building of the flat in the same land belonging to the prospective buyer - the flat as such is being not sold to the individual clients - It appears to be a case where undivided share of land alone is registered on sale and the constructed flat is merely handed over - the merits of the case are arguable in nature (Para 5).

Service Tax – Stay / Pre-deposit of Tax – Construction of Residential Complex Service – Limitation - In view of the apparently contradicting clarifications of the Board, the invocation of extended period of limitation may not be justified - Ordered for pre-deposit of Rs.6 Lakhs (Para 5 & 6).


M/s Jay Travel Agency Vs CST (Dated : November 2, 2012)

ST - Travel Agent Service - In view of the fact that during the previous year appellants were availing the SSI benefit, denial of the same in the next year on the ground of non-filing of declaration is not appropriate – since the appellant had failed to obtain registration certificate after crossing the turnover limit and had not paid ST of Rs.2930/-, penalties imposed are upheld – Appeal disposed of: CESTAT [paras 4 & 5]


M/s Hindustan Aeronautics Ltd Vs CCE (Dated : April 9, 2012)

Service Tax – Penalty – Applicant is a Govt. of India undertaking engaged in repair and overhaul of aircr afts of Indian Air Force, Army, Coast Guard and navy - It is not disputed by the adjudicating authority that the appellants were in correspondence with the Ministry of Finance seeking exemption on the maintenance and repair services of aircrafts pertaining to Ministry of Defence - Such correspondence resulted in denial of said request for exemption by Ministry of Finance on 26.7.2005 - In as much as the appellants were bonafidely contesting the issue before the appropriate authority and the appellants being a Govt. of India unit, no malafide with intent to evade the payment of duty can be attributed to them so as to invoke penalties – The provisions of section 80 of Finance Act, 1994 are required to be applied holding that there was a justifiable reason entertained by the appellants for non-payment of duty -Set aside the penalties (Para 6).


M/s Interocean Shipping Company Vs CST (Dated : November 12, 2012)

Service Tax - Ship brokers are not Commission Agents: a 'commission agent' acts on behalf of a principal and sells or buys the goods or provides or receives the services on behalf of his principal for some commission, The commission agent as agent of the principal can also deal with the goods or services, collect payment for sale price of goods or services sold or provide guarantee for the payment or undertake any activity relating to such sale or purchase of such goods or service. But all this activity must be as an agent acting on behalf of principal. From the nature of their activity, it is clear that brokers are purely intermediaries who do not act on behalf of either ship owner or the charterer and, therefore, they cannot be said to be commission agents. A ship broker , as the name itself suggests, is essentially a broker. Ship brokers are specialist intermediaries for negotiations between ship owner and charterers who use the ship to transport some cargo or between the buyers and sellers of the ship.

Words and Phrases- ‘On Behalf Of' : The words, 'on behalf of' in the statute connote an agency when one person acts on behalf of the other. The former acts as the agent of the latter. No doubt, ordinarily, an agency is the relationship of principal and agent in terms of a contract express or implied while an agency may also be created by a statute. The broker by the nature of the role played by him is different from a commission agent. The distinction between a broker and a commission agent is that a commission agent, having control over the goods sells them to others. Though he may

act for a disclosed principal at either end, he negotiates the sale with the purchaser on his own behalf. The broker does not sell the goods on his own behalf, but merely brings the vendor and the vendee together and settles the price.



M/s Bajaj Hindustan Ltd Vs CCE (Dated : April 9, 2012)

Service Tax – Stay/Pre-deposit of Tax – CENVAT – Input Services – Construction of Residential units for employees – Followed the AP high Court decision in the case of ITC Ltd. ( 2012-TIOL-199-HC-AP ) - Staff colony is intrinsically related to manufacturing activity and as such fall in the input service definition – Dispensed the condition of balance of amount of Pre-deposit (Para 3 & 4).


UTI Asset Management Co Ltd Vs CST (Dated : September 18, 2012)

ST - Applicant is deputing their employees to other associate companies of UTI -whether it can be construed to be a service classifiable under ‘Manpower recruitment & supply agency service' and charged to Service Tax - no evidence on record that the applicant's employees are sent on deputation for some consideration - in view of CESTAT decision in ITC Ltd. (2012-TIOL-855-CESTAT-DEL) , applicant has a strong case in their favour - pre-deposit of adjudged dues are waived and Stay granted: CESTAT [para 4]


CCE Vs M/s SSGA Investment Research Services Pvt Ltd (Dated : July 9, 2012)

Service Tax - Power of Commissioner (Appeal) in remanding the case - Refund -Respondents claimed refund of accumulated CENVAT Credit on 23 input services used for export of Business Support Service - Original authority partly allowed and rejected the remaining on the ground that there was no nexus between the input and output service - The Commissioner (Appeals) found nexus and ordered lower authority to calculate the eligible refund in terms of Board in Circular No. 120/1/2010 dated 19.1.2010 Held that : Lower appellate authority considered the nexus issue in relation to each of the 'input services' and placed reasons for holding that these 'input services' were essential/necessary for providing output service - There is no element of remand as a definite view was taken on the substantive issue (nexus issue) and the matter was sent back to the original authority for quantification of refund (Para 5).


M/s Lakshmi Machine Works Ltd Vs CCE (Dated : July 13, 2012)

Central Excise - CENVAT Credit - Maintenance of Air Craft - Credit is admissible if the Aircraft is used for the business activity - Matter remanded to the Adjudicating Authority to verify the fact and allow the credit if it is proved that the Aircraft has been used for business activity.


Zenith Computers Ltd Vs CST (Dated : November 1, 2012)

ST - Promotion of brand or promotion of branded goods - Matter referred to Third Member due to difference of opinion - ROM by applicant on the ground that M(J) had not given his findings on the issue of export of service and limitation, therefore, there is a mistake apparent on the records - since M(J) has given his findings on merit, therefore, he is not required to give findings on other issues - ROM dismissed: CESTAT [paras 4, 4.1, 5 & 6]



CST Vs M/s Robert Bosch (India) Ltd (Dated : July 23, 2012)

Service Tax - Management Consultant/Market Research Agency – Demand – The Respondent provided services to their parent-company during the period from 16/10/1998 to 27/02/1999 - None of the functions attended to by the respondent could fall within the ambit of the statutory definition of “Management Consultant' nor can any of them be brought within the scope of “Market Research Agency” - The learned Commissioner (Appeals) took the right decision after analyzing the nature of functions and examining whether they could be brought within the purview of the taxable service – No merit in the department appeal (Para 3, 4 & 5).


M/s NCR Corporation India Pvt Ltd Vs CST (Dated : July 4, 2012)

Service Tax - Stay / Pre-deposit of Tax - Construction Service / Industrial or Commercial Construction Services - Demand - Appellants provided service of supply, installation and commissioning of ATM for SBI in different parts of the country - The terms and conditions of the 'Master Solutions Agreement', in relation to 'site installation services', would clearly indicate that these activities pertaining to 'site installation' for ATMs essentially involved construction of civil structures and allied amenities required for the installation of ATMs - It is not in dispute that the appellant received 'commercial consideration' separately from the Bank for this part of the activities undertaken under the above Agreement - Appellant paid service tax under a different head on a few activities covered by the same Agreement - The contract was vivisected by the appellant himself for the purpose of payment of service tax and hence they are estopped from claiming under 'works contract' - These activities were covered by the definitions of "Construction Service" (up to 15.6.2005) and "Commercial or Industrial Construction Service" (from 16.6.2005) and hence the appellant is liable to pay service tax - Having prima facie found no merit in the plea of limitation, they are liable to pay the entire demand of service tax - After allowing abatement, the appellant is liable to pay an amount of approximately Rs.1.25 crores -Ordered for pre-deposit of Rs.1,25,00,000/- (Para 3).


M/s Infosys Technologies Ltd Vs CCE (Dated : June 13, 2012)

Service Tax – Stay / Pre-deposit of Tax - Maintenance of application software already licensed and installed in the computer systems of the banks – Department holding that service tax payable under ‘Management, maintenance or repair services' –Followed the decision of SAP India Pvt. Ltd. (2010-TIOL-1569-CESTAT-BANG) –Activity correctly classifiable as ‘information technology service' and same is exigible to service tax with effect from 16.05.2008 – Stay Granted (Para 4).


M/s Indo-Us Mim Tec Pvt Ltd Vs CST (Dated : July 5, 2012)

Service Tax – Stay /Pre-deposit of Tax - I ntellectual Property Service - Prima facie, the appellant was receiving intellectual property service from the US-company and was paying a commercial consideration for that service by way of royalty - The appellant has no prima facie case on merits against the impugned demand of service tax – Ordered for pre-deposit of Rs.5 Lakhs (Para 2 & 5).


M/s Aditya Kumar Vs CCE (Dated : April 30, 2012)

Service Tax - Valuation - Commercial Training and Coaching - Stay / Dispensation of pre-deposit - Keeping in view the finding arrived at by the adjudicating authority, as

regards evidence in support of non-providing of pre-schooling coaching, non-submission of receipts for sales of books, charging of one consolidated fee from the student, non-disclosure of information in ST 3 returns and non-rebuttal of above finding by the assessee by production of evidence to the contrary, the assessee does not have prima facie, case in their favour. Keeping in view the assessees stand to treat Service Tax as cum duty price and rate of duty etc, the assessee is to make part pre-deposit. (Para 9)


Dell India Pvt Ltd Vs CCE (Dated : July 17, 2012)

Service Tax - Stay / Pre-deposit of Tax - Demand - Out of total demand of Rs.25.77 crores, about Rs.13.14 crores stands appropriated in the impugned order - The appellants have paid service tax while importing Information Technology Software services and while rendering the said services to the customers in India, they have paid service tax under the same category - I t is claimed that the appellants have taken credit of service tax paid by the subcontractors under the category of 'Management, Maintenance or Repair service' and utilised the credit while executing their annual maintenance contract the their customers - prima facie, substantial part of the balance of the demand may not be sustainable - Ordered for pre-deposit of Rs.62 Lakhs (Para 5 & 6).


WNS Global Services Pvt Ltd Vs CCE (Dated : October 30, 2012)

ST - Refund - BAS - appellant undertakes processing of data and which are exported electronically by transmitting to a server of telecom authorities in India and thereafter uplinked/transmitted to the foreign service recipient - dedicated telecom lines are essential for this purpose & is to be considered as Input Service as defined in rule 2(l) of CCR, 2004 - ST paid on leased telecom lines is available as CENVAT credit - View adopted by Revenue authorities that export has not been effected directly is completely irrational - matter remanded for verification as to whether payments received in foreign convertible currency by Head office situated in Bombay relates to exports made by Nashik unit: CESTAT [paras 6, 6.1 & 6.2]



Bajirao Sakharam Patil Vs CCE (Dated : September 18, 2012)

ST - Manpower Recruitment and Supply Agency Service - applicant along with 21 other labourers entered into a contract with the sugar factory for cutting and supply of sugar cane - there is no evidence that the applicant provided any service directly or indirectly for recruitment and supply of manpower - Pre-deposit of ST demand of Rs.1.06 lakhs waived and Stay granted: CESTAT [para 5]


B E Billimoria & Co Ltd Vs CST (Dated : June 5, 2012)

Notfn. 1/2006-ST – abatement – Centralised CENVAT credit account - Commercial or Industrial Construction service & Construction of Complex Services – appellant submitting that they are maintaining separate account project wise while performing the above services and availing benefit of exemption or otherwise – since this is a factual matter which can be ascertained by the adjudicating authority order confirming ST demand of Rs.5.42 crores set aside and matter remanded: CESTAT [paras 8 & 9]


M/s Amrit Construction Vs CCE (Dated : August 29, 2012)

ST - Road repair services is exempted with retrospective effect vide section 143 of the Finance Act, 2012 - Order set aside and appeal allowed: CESTAT [para 4]


Wanbury Ltd Vs CCE, ST & CC (Dated : October 8, 2012)

ST - Applicant providing technical knowhow service - although they have made entries in their books of accounts, they have not received any amounts for providing the service - prior to May, 2008, ST was payable only on receipt basis - for the later period the service provided does not appear to qualify as ‘Scientific & Technical Consultancy Services' - prima facie case made for waiver of pre-deposit of Rs.1.56 Crores - Stay granted: CESTAT [para 5]



CCE Vs Sai Advantium Ltd (Dated : June 29, 2012)

CE - Commissioner(A) has set aside the order of the adjudicating authority and given one more opportunity to the department to consider the matter in terms of guidelines he has stated and for reconsidering the matter in terms of Board's Circulars and

judgements on the issue – it cannot be said that this is a mere remand order –Revenue appeal dismissed : CESTAT [para 4]


M/s Sai Teia Constructions Vs CCE (Dated : June 26, 2012)

Service Tax – Stay / Pre-deposit of Tax – Construction of Residential Complex Service - It is not in dispute in the present case that the residential units were constructed as two-storeyed blocks, each consisting of less than 12 units - It is debatable as to whether these complexes can be considered to be residential complexes for the purpose of levy of service tax – Followed the decision of Macro Marvel Projects (2008-TIOL-1927-CESTAT-MAD) – Pre-deposit waived (Para 3).


CCE & ST Vs M/s R S Yadav & Co (Dated : October 31, 2012)

ST – Cargo Handling Service – Commissioner has set aside major portion of the demand by referring to the Work orders which were not a part of the show cause notice – since the adjudicating authority has traversed beyond the scope of the SCN, matter is required to be remanded to decide the case afresh – Revenue appeal allowed by way of remand: CESTAT [para 6.1]


Ms Katrina R Turcotte Vs CST (Dated : October 9, 2012)

ST - Appellant has provided service for promotion of product by agreeing to model for advertisement films, TV commercials, still photography, footage, press advertisement, outdoor, packaging and sales material etc. - Revenue issuing ST demand treating the activity as “Business Auxiliary Service” - appellant has appointed M/s Matrix as her agent to discharge service tax liability on her behalf and same has been discharged by M/s Matrix – in view of section 65(7) of FA, 1994 demand not sustainable - mere payment of ST liability by agent under wrong head of Advertisement Agency Service does not meant that service tax liability has not been discharged – Proceedings by way of issuance of SCN and adjudication was not warranted – order set aside and appeal allowed: CESTAT [paras 6, 7 & 8]



M/s M Subhas Reddy Vs CC, CE & ST (Dated : June 11, 2012)

Service Tax – Stay/Pre-deposit of Tax – Demand of Service Tax under for the same activity under head ‘Site Formation and Clearance Service' for the period prior to 31.05.2007 and later period under head ‘Mining Service' - prima facie, the activity in question cannot be considered as ‘Site Formation and Clearance' for the period prior to 01.06.2007 - Similar activity is admittedly classifiable under the head ‘Mining Services' for the period from 01.06.2007 - Appellant paid major part of the demand for the period from 1.6.2007 – Pre-deposit waived (Para 2).


M/s Bhumica Consultancy Pvt Ltd Vs CCE (Dated : September 19, 2012)

Service Tax - Stock Broking Services - Service Tax Short Paid - Stay / Dispensation of pre-deposit - The issue needs to be gone in detail as regards the reason for short payment of Service Tax - Assessee has not made out a case for complete waiver of pre-deposit. Part pre-deposit ordered. (Para 6)


MMA CETP Co-Operative Society Ltd Vs CCE & ST (Dated : September 27, 2012)

ST - Club or Association Service - Appellant is a registered co-operative society and set up a common effluent treatment plant for the benefit of its members - plant set up with financial assistance of the State/Central Government - in view of retrospective exemption granted in terms of section 145 of the Finance Act, 2012, service provided by appellant is exempted - order set aside and appeal allowed: CESTAT [paras 4 & 5]


BASF India Ltd Vs CCE (Dated : July 25, 2012)

CENVAT - Business Support Service - Denial of Credit of Service Tax paid on Business Support Service received from Input Service Distributor on the ground of non availability of documentary evidence - The appellant claims to have all the relevant documents to support the claim for CENVAT credit - They have produced copies of these documents with a miscellaneous application - These documents include the ST-3 returns of the ISD, relevant challans and other documents related to distribution of services to the appellant by the ISD - Directed the adjudicating authority to reconsider the appellant's claim for CENVAT credit on the strength of these documents (Para 3).


CCE Vs M/s Actavis Pharma Manufacturing Pvt Ltd (Dated : July 13, 2012)

Central Excise – CENVAT Credit of service tax paid on Rent-a-Cab and Tour Operator service – In view of the Mumbai High Court judgement in case of M/s Ultratech Cement Ltd, no merit in appeal by revenue - In the absence of mentioning in the grounds of appeal that the adjudicating authority has not considered the admissibility of input service credit on Tour Operator Service, plea for remanding the matter to the Adjudicating Authority is not acceptable.


CST Vs M/s Hardy Exploration & Production (India) Ltd (Dated : June 11, 2012)

Service Tax - Stay/Dispensation of pre-deposit - Refund of service tax claimed by the service recipient - Service provider has not challenged the levy of service tax - Refund allowed by the Commissioner (Appeals) - Prima facie, the order is not proper in view of the Supreme Court judgements in cases of Flock(India), Priya Blue and Mafatlal Industries - Prima facie, the departmental authorities have to function within the ambit of the statute which has created these authorities and they cannot assume powers and jurisdictions of constitutional courts - Stay application of revenue allowed.


M/s HDFC Bank Ltd Vs CCE (Dated : July 26, 2012)

ST - Business Auxiliary Service - applicant entered into an agreement with Western Union Financial Services, USA who are engaged in Money Transfer and related services - applicants distributing money to customers of Western Union in India -Tribunal in case of Muthoot Fincorp Ltd. holding that Services rendered by appellant directly to principal abroad whose beneficiaries are outside India are not taxable services in India - in view of the said decision, pre-deposit of dues are waived and recovery stayed - Stay petition allowed: CESTAT [para 2]


ILF&S Maritime Infrastructure Co Ltd Vs CST (Dated : August 30, 2012)

ST demand of Rs.17.24 lakhs confirmed by denying the benefit of notfn. 01/2006-ST dt. 01.03.2006 on the ground that appellant availed CENVAT credit of Tax paid on Input Services - applicant submitting that the credit availed was in respect of services received prior to 01.03.2006 and they had not availed any credit in respect of input services used to render services post 01.03.2006; instead of denying the benefit of notfn. the demand should be in respect of credit availed of Rs.6.72 lakhs - no prima facie case in favour - Pre-deposit ordered of Rs. 6.72 lakhs: CESTAT [para 5]


M/s Pooja Forge Lab Vs CCE (Dated : October 10, 2012)

Rule 2(l) of CCR, 2004 - Appellants entered into FOR contract with their customers –Chartered Accountant's certificate is to the effect that sale is on FOR basis and all expenses incurred up to the buyers premises form part of the cost of final product -accordingly they arranged transportation and paid ST on the said GTA services – since appellants were the owners of the goods up to the place of delivery i.e the buyers' premises, the GTA services so availed by them are to be treated as Input services –CENVAT Credit correctly availed – Appeal allowed with consequential relief: CESTAT [para 5]


M/s Core Tree Solutions Pvt Ltd Vs CCE (Dated : June 22, 2012)

Service Tax – Stay / Pre-deposit of Tax – Business Auxiliary Service – Penalty - Delay in payment of Service Tax amounts - Considerable delay consistently for about 21 months and the same cannot be condoned - Prima facie, Section 76 is attracted –Ordered for pre-deposit of Rs.1,50,000/- taking into consideration of the plea of financial hardships made by the appellant (Para 5 & 6).


CCE & CC Vs Spentex Industries Ltd (Dated : June 29, 2012)

CENVAT credit of Input Services - Revenue is disputing assessment and collection of tax at the service provider's end - it is a well settled law that CENVAT credit cannot be denied to the receiver of duty paid input/input service by the Central Excise authorities having jurisdiction over the input/input service receiver by revising the assessment of duty at the supplier's end - no merit in Revenue appeal, hence dismissed: CESTAT [para 5]


M/s Tata Steel Ltd Vs CCE & ST (Dated : September 12, 2012)

Appellant did not contest payment of Service Tax nor is it their case that there is no delay in payment of Service Tax - Appellant are required to pay interest on delay in payment of Service Tax in terms of Section 75 of FA, 1994, irrespective of the fact that the Applicant have paid the Service Tax before issue of show cause notice -Commissioner has not imposed any penalty under Sections 76 or 77 and the Department has not challenged the non-imposition of penalty - in these circumstances, there was a reasonable cause and, therefore, the penalty u/s 78 is not imposable as per the provisions of Section 80 of the Finance Act, 1994 – Appeal disposed of: CESTAT [paras 5 & 5.1]


M/s Shree Vallabh Industrial Services Vs CCE & CC (Dated : June 26, 2012)

Service Tax – Stay / Pre-deposit of Tax - Manpower Recruitment Agency Service –The appellant is doing the job for cutting, welding, fabricating, pipe fittings etc. on the engineering raw materials supplied in the factory premises of the customer - It is also on record that the work force employed for doing the job was paid by the appellants –Followed the decision of Ritesh Enterprises (2010-TIOL-539-CESTAT-BANG) - The appellants have made out a prima facie case for waiver of pre-deposit of the amounts involved (Para 4 & 5).


M/s Bindal Sponge Ltd Vs CCE C & ST (Dated : October 27, 2012)

S. 33A of CEA, 1944 - Appellant had been afforded a personal hearing to appear before the lower Adjudicating Authority consecutively on 07.12.2009, 08.12.2009, 10.12.2009 and 11.12.2009 by a single correspondence - vide their letter dated 11.02.2009, which was also acknowledged, they had sought an adjournment, however, the Order was subsequently passed ex parte by the Commissioner without giving any finding for not granting adjournment and without granting the Appellant an effective hearing in breach of principle of natural justice – Appeal allowed by way of remand: CESTAT [para 6.2]


CCE Vs M/s Abbas J Chavda (Dated : October 5, 2012)

ST - Respondent is providing services for loading & unloading within the premises of M/s. J. M. Baxi & Co – such a service will not come within the purview of ‘Cargo Handling Services' – even otherwise Board Circular dated 1/08/2002 categorically clarifies, that if an individual is undertaking activity of loading and unloading of cargo, it would not come under the purview of service tax as Cargo Handling Services –Revenue appeal devoid of merits, hence rejected: CESTAT [paras 8 & 9]


M/s Lote Parshuram Environment Protection Co-Op Society Ltd Vs CCE (Dated : July 27, 2012)

ST – Applicant, a co-operative society set up a Common Effluent Treatment plant for providing effluent treatment to their member industries – Service Tax of Rs.1,42,50,531/- confirmed along with interest and penalties on the ground that the service is taxable under the head Club or Association Service – project cost was raised by members and with assistance from Ministry of Environment & Forest, MIDC and MPCB – in view of retrospective ST exemption granted to effluent plants by section 145 of the Finance Act, 2012, order confirming ST under the head "Club or Association Service" set aside and appeal allowed: CESTAT [paras 4, 5 & 6]


Link Intime India Pvt Ltd Vs CST (Dated : August 28, 2012)

ST - Applicant providing taxable services and also some services to SEZ by claiming benefit of notfn. 4/2004-ST - Revenue contending that since applicant not maintaining separate records of receipt and utilization of input services, they are entitled to utilize the credit only to the extent of 25% of ST on Input service in terms of rule 6(3)(c) of CER, 2004 - as the applicant has now paid the duty in respect of taxable services provided to SEZ unit prima facie case made for waiver of adjudged dues - Stay petition allowed: CESTAT [para 5]


CST Vs Heidelberg India Private Ltd (Dated : July 20, 2012)

Service Tax – Service Tax on Commercial Coaching or Training service availed from foreign service provider – No infirmity in the order of Commissioner (Appeals) that no amount was paid to the service provider and expenditure in foreign currency was only towards travel and accommodation etc – Even if any amount was paid for the service, service tax cannot be demanded on training rendered outside India as per provisions of Taxation of Services (Provided from outside India and received in India) Rules, 2006.


Thermax Instrumentation Ltd Vs CCE (Dated : October 15, 2012)

ST - Contempt notice for misleading the Bench - Application for modification of Miscellaneous order - contentions raised by appellant are not acceptable as Stay was granted considering the statement of the Counsel while disposing Stay application - if the submissions are accepted then it will amount to review of order which is not permissible in the eyes of law - time extended for making pre-deposit - in view of unconditional apology tendered, SCN issued for initiation of contempt proceedings withdrawn: CESTAT [paras 9 & 11]



M/s Cholamandalam Ms General Insurance Co Ltd Vs CST (Dated : June 12, 2012)

Service Tax – Adjustment of excess service tax paid under Rule 6(3) of the Service Tax Rules, 1994 – Transaction wise details have been produced for the first time before the Tribunal and the same are required to be verified.

Mode of return of value of service - The adjudicating Commissioner has objection to the fact that the refunds have been made by way of credit and not by issue of cheques - The department cannot insist that in every case the refund may be made in particular manner ie., by cash or by issue of cheque. The whole rationale behind Rule 6 (3) is that where the service tax has been paid on amounts received for providing particular service and that service for some reason has not been provided by an assessee, he can make adjustment of the excess tax paid in the succeeding period -There would be no harm in allowing refund by adopting widely accepted industry practice - Matter remanded to the adjudicating authority.


M/s Cauvery Coffee Traders Vs CCE (Dated : July 13, 2012)

Service Tax - Refund - Original authority sanctioned refund of service tax including education cess and secondary & higher education (SHE) cess, paid in terms of Notification No.41/2007-ST dated 6.10.2007, in respect of input services utilised for the goods exported - The Commissioner reviewed the order and ordered recovery of refund sanctioned representing the components of education cess and SHE cess of service tax - CBEC vide its Circular No. 134/03/2011-ST dated 8.4.2011 clarified that the 'whole of service tax' including education cess and SHE cess are exempted by Notification No.41/2007-ST dated 6.10.2007 - Commissioner's orders for recovery of

part of the refunds sanctioned are set aside (Para 4 & 5).


M/s Bond Security And Private Detective Agency Vs CCE (Dated : June 15, 2012)

Service Tax – Penalty – Penalty under Section 78 of the Finance Act, 1994 - It is not in dispute that there was investigation and confirmation of demand of service tax and imposition of penalties on the identical activities undertaken by the appellant in the year 2002 - Under these circumstances, the plea of ignorance has to be dismissed as totally devoid of any merits - The fact that the appellants have not collected any service tax is of no consequence and does not give justification to invoke Section 80 of the Finance act - The basic reason for setting aside the penalty under Section 78 is the Tribunal's decision that when Section 78 penalty is sustained, there is no justification for a separate penalty under Section 76 – There is no merit in the assessee's appeal (Para 6).


M/s Indu Projects Ltd Vs CCE (Dated : June 12, 2012)

Service Tax – Stay / Pre-deposit of Tax – Demand of Service Tax on amount billed and but not received - prima facie, the demand should have been restricted to the amount actually realized and not on the billed amounts - the appellant has not made such a claim before the Commissioner (Para 5).

Service Tax – Stay / Pre-deposit of Tax - Service Tax demand in respect of transaction between the associated enterprises and the appellant for the period prior to 10.05.2008 – Followed the decision of Sify Technologies Ltd. (2011-TIOL-123-CESTAT-MAD) – No Service tax need be payable - Taking facts and entire circumstances into account Ordered for pre-deposit of Rs.2 Crores (Para 8).


CCE Vs M/s Maktel Systems (Dated : September 14, 2012)

ST - Whether during the period April, 2005 to September, 2005, ST on GTA could have been paid from CENVAT credit availed for the ST paid on GTA services –Explanation to rule 2(p) of the CCR, 2004 has been removed on 19.04.2006 and, therefore, it is quite clear that after 19.04.2006, the service for which the service receiver is liable to pay Service Tax cannot be termed to be the output service – since the period involved is prior to that date, in the presence of specific provision providing for treatment of service for which the Assessee is liable to pay Service Tax to be output service appellant is eligible for CENVAT credit – reliance on decision in India

Cement Ltd. (2007-TIOL-645-CESTAT-MAD) by Commr(A) is proper: CESTAT [para 3]

Whether the appellant is eligible for the credit of Service Tax paid on out-ward transportation of finished goods from the place of removal during the period from April, 2005 to September, 2005 – for the period prior to 01.03.2008 issue is settled in favour of the assessee in view of the Karnataka HC decision in the case of M/s. ABB Ltd. - 2011-TIOL-395-HC-KAR-ST . [paras 5 & 6]


M/s Rajpath Club Ltd Vs CST (Dated : August 21, 2012)

Service Tax - Business Support Services - Demand - Stay / Dispensation of pre-deposit - Demand of service tax raised on the ground that the Club is providing services of Business Support Services to the restaurant that is operating from the premises of the club. The Tribunal in precedent cases has granted stay on the ground that any commission received by the Club for providing facility in the Club would not fall under the category of Business Support Services.Hence, stay granted. (Para 6)


Smt Chuniben S Jadia & Others Vs CST (Dated : August 29, 2012)

Service Tax - Renting of Immovable Property Services - Multiple / Joint owners of property - SSI Exemption to each of the owners - Clubbing of receipts - Stay / Dispensation of pre-deposit - The cheques for rent are received individually by all the assessees. The agreement between the individuals for the purpose of renting out of premises to another person make it specific that individually they are renting out the property to a person. As per notification No.6/2005-ST dated 01.03.2005, the aggregate value of the taxable services rendered, should be considered for the purpose of exemption and in this case if individually all the assessees be considered as provider of such service, their aggregate value does not exceed the threshold limit. Prima-facie, case made out for waiver of pre-deposit. (Para 6)


CCE Vs M/s Heubach Colour Pvt Ltd (Dated : September 21, 2012)

Central Excise - CENVAT - Input Service - Security Services - Outward transport of goods from factory to port - Denial of credit - The security services are engaged by the assessee in respect of movement of finished goods from factory premises to the port in container. The security services are engaged in order to safe-guard the business interest and will be covered under the definition of input services. Also, in respect of export goods, the place of removal is considered as port and any expenses or tax till the goods reach the place of export, the benefit of CENVAT Credit has to be

extended. (Para 8)


M/s Doshion Ltd Vs CCE (Dated : October 5, 2012)

ST - Appellant had collected the amount of service tax from their clients but not paid the same to the Government nor reflected the same in half yearly return filed with the revenue authorities - appellant-assessee was registered under service tax and was in knowledge of the provisions of the Finance Act - penalty imposed u/s 76 proper -appellant was also correctly visited with penalty u/s 78 of the FA, 1994 - however, since the ST has already been paid, appellant given an option to pay 25% penalty imposed u/s 78 within 30 days of receipt of order - Appeal disposed of: CESTAT [paras 6, 7 & 8]


Canara Bank Vs CCE & CC (Dated : May 30, 2012)

Service Tax – Stay / Pre-deposit of Tax - Credit Card, Debit Card, Charge Card or other Payment Card Service – Taxable Value - Service Tax demand on Interest amounts paid by card holders for delayed payments - The bank's customers holding credit cards purchase goods from shops and the bank pays to the shop keeper on their behalf -Till the customers pay up the money to the bank, they are debtors and they stand in the shoes of borrowers - If that be the case, the amount transacted is a “loan” and interest must accrue to the bank in the event of delay in repayment thereof - An amendment of Section 67 added "interest on loans" to the excluded category under Section 67 w.e.f. 10.09.2004 - This legal position continued up to 18.04.2006 - The exclusion of "interest on loans" from the taxable value under Section 67 came to be incorporated in Rule 6 of the Service Tax (Determination of Value) Rules 2006 w.e.f. 18.04.2006 - During the period of dispute, "interest on loans" was in the excluded category and was not to be included in the gross value charged by the bank for rendering ‘credit card services' - The appellant having made out a prima facie case – Pre-deposit waived - Section 65 (105) (zzzw) of the Finance Act 1994 (Para 2 & 3).


Mason & Summers Alcobev Pvt Ltd Vs CST (Dated : June 7, 2012)

Service Tax – Stay / Pre-deposit of Tax – IPR Service - Demand is under the head “IPR service” and the same is on the "Technical Assistance Fee" received by the appellant from various Contract Bottling Units (CBU's) – Followed the decision of Skol Breweries ( 2010-TIOL-1894-CESTAT-MUM ) - On merits, the appellant has not made out prima facie case - Ordered for pre-deposit of Rs.50 Lakhs (Para 4 & 5).


M/s Priya Marine Products Vs CCE (Dated : August 27, 2012)

Service Tax - Business Auxiliary Services - Export of services - Demand - Stay / Dispensation of pre-deposit - The services rendered by the assessee is on specific appointment of him by the foreign buyers. The acceptance of the finished goods i.e. processed foods are done only on an approval/inspection done by the assessee and are then exported. Prima-facie, the service rendered by the assessee may get covered under BAS. As per the Board's circular dated 24.02.09, services shall not be taxed, even when all the relevant activities though taking place in India, benefits of these services are accrued outside India. Prima-facie case made out for the waiver of the pre-deposit. (Para 5)


M/s Nag Interiors (P) Ltd Vs CCE (Dated : May 9, 2012)

Service Tax – Stay / Pre-deposit of Tax – Works Contract Service - Denial of benefit of exemption under Notification No.12/2003-ST dated 20/6/2003 - As per Board's clarification dated 22/5/2007, any contract which is considered as works contract involving payment of VAT deserves to be treated as works contract for purposes of levy of service tax - Denial of benefit of Notification No.12/03 may not be justified in the light of documents submitted by the assessee which contained detailed specifications and value of the material supplied/utilized while rendering the services –Pre-deposit waived (Para 4.4, 5 & 6).


M/s Gujarat Guardian Ltd Vs CCE (Dated : October 23, 2012)

Services utilised in residential colony set up by the appellant so that personnel are available 24 hours near the factory - CENVAT Credit not available on such welfare activity in view of precedent decisions of High Courts in Manikgarh Cement and Gujarat Heavy Chemicals Ltd. - however, since there were also Tribunal decisions in favour, appellant could have entertained a belief that they were entitled to credit –demand beyond a period of one year not sustainable but interest payable – penalty not imposable as issue involves interpretation of law: CESTAT [paras 6 & 7]



M/s Gopinath & Sharma Vs CST (Dated : June 12, 2012)

Service Tax – Condonation of delay - There was a delay of more than two years in seeking appeal remedy before the first appellate authority - According to Section 85 of the Finance Act, 1994, the first appellate authority has no power to condone delay beyond the statutory period of three months plus the discretionary period of another three months under the proviso to sub-section 3 (3) of Section 85 of Finance Act, 1994 - It is also settled law that no court can compel a statutory authority to act beyond statutory mandate -Tribunal has no power to pass an order to direct the first appellate authority to exercise his jurisdiction beyond his authority.


M/s Ford India Pvt Ltd Vs CCE (Dated : July 17, 2012)

Service Tax – Services received from outside India – Demand of service tax during the period from 16.08.2002 to 31.03.2006 is set aside in view of the judgement in case of Indian National Shipowners Association – Demand of service tax on other services –No case to impose penalty in view of the provisions of Section 73(3) of the Finance Act, 1994.


M/s Alstom Projects India Ltd Vs CC, CE & ST (Dated : July 12, 2012)

Service Tax – Refund – Refund of service tax paid on commission received from foreign clients – Issue of taxability has already decided in favour of the appellants –Refund cannot be denied by taking recourse to the alternate plea of the appellants that the gross amount received should be treated as cum tax to hold that they have already collected the service tax from the clients - The alternate plea taken at the time of issue taxability of service has no relation while considering refund claim –Appellant entitled for refund.


M/s Maharashtra Scooters Ltd Vs CCE (Dated : May 18, 2012)

CENVAT credit – GTA Service - Outward freight incurred in respect of goods sold from factory/depot up to the place of the dealers and which amount did not form part of the taxable value of the goods sold – period involved is January, 2005 to March, 2007 – appellant has a prima facie case in favour in view of LB decision in ABB Ltd. - (2009-TIOL-830-CESTAT-BANG-LB) as upheld by Karnataka HC - (2011-TIOL-395-HC-KAR-ST) and a similar view taken in Parth Poly Wooven Pvt. Ltd. (2011-TIOL-891-HC-AHM-ST) – Pre-deposit waived and stay granted: CESTAT [paras 5 & 6]


CST Vs Alliance Francaise De, Delhi (Dated : August 29, 2012)

ST – Commercial Coaching & Training Services – Commissioner dropping a part of the demand on limitation - Revenue in their appeal has again raised the issue from the angle of merit of the case but not advanced any reasons to rebut the finding of the adjudicating authority on the issue of limitation – there was confusion and doubt regarding service tax liability during the material period – even Tribunal decisions were in favour of respondent assessee - Subsequent amendment made under the law with retrospective effect cannot be considered relevant for attributing suppression or misstatement to the assessee – no reason to interfere with order – Revenue appeal rejected: CESTAT [para 2]


M/s Abhijit Travels Vs CCE (Dated : July 3, 2012)

Commissioner (A) rejecting appeal not on merits but only on the basis of non-compliance with the statutory provisions of s.35F of the CEA, 1944 - since appellants have now complied with pre-deposit orders, matter remanded to dispose appeals on merit - Appeal disposed of: CESTAT [para 7]

Condonation of delay - Main partner acquainted with facts was looking after his ailing wife hence appeal not filed on time - reasons satisfactory hence delay condoned: CESTAT [para 2.2]


Econ Hinjewadi Infrastructure (P) Ltd Vs CCE (Dated : September 25, 2012)

ST – Applicant collecting rent and paying service tax under the category of ‘Renting of Immovable Property Service' – however, electricity charges collected from tenants not included in value of taxable service – as electricity is ‘goods', said charges may not form part of taxable value in terms of notfn. 12/2003-ST – Prima facie case made for waiver of Pre-deposit of adjudged dues of over Rs.5.70 Crores – Stay granted: CESTAT [para 4]



Archivista Engineering Projects Pvt Ltd Vs CCE (Dated : May 21, 2012)

ST – Commercial and Industrial Construction services – Notfn. 1/2006-ST – appellant had availed abatement of 67% on gross value of services and also availed credit on inputs which is not permitted in terms of the proviso to the notification – demand issued for denying the benefit of the notification – after issuance of SCN appellants have reversed the entire input credit along with interest - in B.G.Shirke Technology P. Ltd. (2012-TIOL-511-CESTAT-MUM) Tribunal has held that such reversal is sufficient for availment of benefit of notfn. – since lower appellate authority has dismissed appeal for non-compliance of provisions of s. 35F without going into merits, in interest of justice matter remanded to Commr(A): CESTAT [paras 2 & 3]


M/s ASM Technologies Ltd Vs CST (Dated : December 15, 2011)

Service Tax – Stay/Pre-deposit of Tax - Manpower Recruitment or Supply Agency Service – Taxable value adopted did not include amounts recovered in the name of reimbursements - prima facie, the submissions of the ld. Advocate that the activities may fall under the category of ‘Information Technology Services' and may not be classifiable under the category of ‘Manpower Recruitment or Supply Agency Service', appears to be legal (Para 5).


Arya Vaidya Pharmacy (Coimbatore) Ltd Vs CCE (Dated : February 17, 2012)

Central Excise – CENVAT – Denial of credit on Construction Service - It is quite clear that the factory building constructed by the appellant was for setting up of a factory and therefore the service utilized by them is an 'input service' and therefore CENVAT credit has been correctly availed - The appellant is eligible for the benefit of CENVAT credit on the construction service utilized by them (Para 3).

Central Excise – CENVAT – Security Services - CENVAT credit of service tax paid on security service is held to be admissible and allowed (Para 3).

Central Excise – CENVAT – Denial of credit on GTA Service and Telephone Service -These two services are not covered by the list of common services in respect of which credit would be admissible that used for exempted as well as dutiable goods - In such a situation, assessee is required to maintain separate records for taking the credit and its utilization - Since assessee has failed to maintain separate accounts, the credit availed in respect of these two services has to be disallowed and has rightly been disallowed (Para 4).


Hindalco Industries Ltd Vs CCE (Dated : August 17, 2012)

CENVAT - ST paid on Bus Transport Service used for the activities involving social gathering, marriage, picnic and taking children to school is prima facie not admissible as these activities do not fall in the category of business activity - Pre-deposit ordered: CESTAT [para 5]


CCE Vs M/s Prime Developers Ltd (Dated : September 14, 2012)

ST - Construction of residential complex - Commissioner (A) holding that in the absence of issue of show-cause notice proposing to confirm the amount paid by the respondents towards service tax, the amount paid by the respondents remained only a deposit and therefore rejection of refund was not in order - Revenue submits that sub-section (3) of section 73 of FA, 1994 not considered by appellate authority - since both sides agree, matter remanded for fresh consideration: CESTAT [paras 5 & 6]

Although appeal was listed and heard earlier, preamble to order did not indicate the appeal number - none of the parties filed a ROM and so the appeal is heard since listed - there is no alternative but to pass another order on the very same issue: CESTAT [para 2]


Kolte Computers Pvt Ltd Vs CCE (Dated : July 12, 2012)

ST - BAS- Applicant conducting regular courses of computer training as authorized training centre of M/s Maharashtra Knowledge Corporation - in view of agreement entered into with M/s MKCL which authorised the applicant to conduct regular computer courses, applicants have made a case that they are not providing any business auxiliary service - pre-deposit waived and stay granted: CESTAT


M/s Rattha Holding Co Pvt Ltd Vs CST (Dated : August 1, 2012)

Applicant entered into an agreement for purchase of a property and paid Rs.80 lakhs as advance - finding that there was a title dispute they backed out but later found one buyer for the property and in whose favour they relinquished their right in property -for this sale of right they obtained a consideration - prima facie, such a transaction

may not amount to ‘Real Estate Agency Service' - prima facie case made for waiver of pre-deposit of entire amount - Stay granted: CESTAT [para 3]

Joint venture with foreign company - 40% shares sold to foreign buyer - revenue view that this amounts to promotion of brand name and chargeable to ST under BAS -since the transaction is for sale of shares of the company, appellant not liable to pay ST under BAS - pre-deposit waived and stay granted: CESTAT [para 2(iii)]

CENVAT availed on Input services of ‘Construction of Immovable Property' prior to 01.06.2007 - since ‘Renting of Immovable Property Service' has come into force only w.e.f 01.06.2007, appellant not entitled to take credit - no case made for waiver -Pre-deposit ordered of 50% of the CENVAT credit denied: CESTAT [para 2(iv)]

Renting of immovable property prior to 01.06.2007 but payment received later -amounts also received as deposits for obtaining electricity connection etc. - issues to be considered at the time of final hearing - pre-deposit waived: CESTAT [para 2(i)]


M/s Walker Chandiok & Co Vs CCE (Dated : October 16, 2012)

ST - Appellant a Chartered Accountant - SCN did not indicate the method of working out the Service tax amount short paid and this fact has resulted in protracted proceedings at three levels to sort out dispute of such a small amount of Rs. 1080/-and simple issues - appellant submitting that amount received is inclusive of Service Tax - matter remitted to adjudicating authority to verify calculation - issues already settled in proceedings cannot be reopened by Revenue in denovo proceedings: CESTAT [paras 7, 8 & 9]


CCE Vs M/s Atlas Copco India Ltd (Dated : July 3, 2012)

ST - Revenue appeal involving Service Tax amount of Rs.5975/- & equal penalty since less than Rs.50,000/- is not admitted - Appeal dismissed: CESTAT [para 2]


Welspun Maxsteel Ltd Vs CCE (Dated : June 1, 2012)

ST - Rule 2(l) of CCR, 2004 - Security service at pump house for pumping water from Kundalika river, which is required as a coolant in manufacturing operations is an Input service - as far as Input services are concerned, by their very nature, it cannot be insisted that they should be provided within the factory premises - CENVAT credit allowed: CESTAT [para 5.2]



M/s Divis Laboratories Ltd Vs CCE (Dated : June 7, 2012)

100% EOU – Stay / Pre-deposit of Duty – CENVAT – Use of common inputs in respect of manufacture of dutiable and exempted goods - Demand of an amount @ 10% of the total sale price of the Exempted goods in terms of Rule 6 (3)(b) of the CENVAT Credit Rules, 2004 - the appellant debited a total amount of Rs.1,69,10,609/- in their CENVAT credit account towards duty payable on the inputs indigenously procured and those imported and used in the manufacture of the bulk drug cleared to DTA during the material period - The appellants appear to have created a hypothetical situation in which duty of excise should be deemed to have been paid on the DTA clearances -Had duty of excise been paid on the goods at the time of its clearance to the DTA, the appellant could have utilized CENVAT credit and, therefore, it is contented that the reversal of CENVAT credit as above would amount to payment of duty on the goods cleared to the DTA - The goods cleared to DTA should therefore be treated as duty-paid - In this manner, the ld counsel has endeavored to challenge the impugned demand raised under Rule 6(3)(b) - These arguments bring up a debatable question, which will be considered at final hearing stage - There is no dispute regarding the reversal of CENVAT credit amounting to over Rs.1.69 Crores which is more than the amount demanded in terms of Rule 6(3)(b) - The appellant shall not be required to pre-deposit any amount over and above the amount so reversed (Para 5 & 6).


M/s Corelogic Global Services Pvt Ltd Vs CCE (Dated : May 9, 2012)

Service Tax - Stay/Pre-deposit of Tax - Refund - The revisionary authority ordered for recovery of refund granted mainly based on a finding that the assessee could not prove remittances from the over-seas service recipient - Prima facie, the fact certified by the Chartered Accountant for the present purpose is enough - waived pre-deposit (Para 5).


CCE Vs M/s Continuous Computing India Pvt Ltd (Dated : March 16, 2012)

Service Tax - Refund - Power to remand by the Commissioner (Appeals) - the Commissioner (Appeals) has examined the nexus issue closely and given his own findings and the matter was remanded to the original authority only for the purpose of quantification based on the Chartered Accountant's certificate - This cannot be treated as a case of remand by the Commissioner (Appeals) - No other valid grounds have been adduced to interfere with the impugned order (Para 7).


Bharti Televentures Ltd Vs CST (Dated : June 7, 2012)

Service Tax - Sale of SIM cards - In view of the different judicial pronouncements on the subject during the disputed period, appellant's prayer for paying the tax for the normal period is accepted - Appellant shall also pay interest - Penalty shall not be exigible.


Asian Paints Ltd Vs CCE (Dated : August 28, 2012)

CENVAT credit of the service tax paid on cable operator service, repair and maintenance service, manpower supply service, pest control service, telephones, Business Auxiliary Service used/received in the residential township constructed for their employees – appellant submitting that since the factory is located in a remote place they are required to set up residential colony for employees so as to undertake the manufacturing activity and hence these are Input service – contrary decisions are available on the subject matter – jurisdictional Bombay HC in case of Manikgarh Cement (2010-TIOL-720-HC-MUM-ST) has held that services rendered in residential colony is a welfare activity and has no nexus with manufacturing activity and hence credit not eligible – appellant not making a case for complete waiver – Pre-deposit ordered of 50% of adjudged dues for obtaining stay: CESTAT [para 5]


CST Vs M/s General Motors India Pvt Ltd (Dated : February 29, 2012)

Service Tax - Refund - Power of Commissioner (Appeals) to remand the case - There is a valid point in the objection raised by the department against the impugned order - It appears from the impugned order that the substantive issue was remanded to the original authority without the power of remand, which is not legal - However, there is no fault in the reasoning adopted by the learned Commissioner (Appeals) for taking the view that the original authority should revisit the refund claims - The Board's Circular which laid down a procedure for dealing with such refund claims was not available to the original authority when it passed orders - Remanded the matter back to original authority to reconsider the refund claims (Para 4).


M/s Tata Steel Ltd Vs CST (Dated : September 20, 2012)

ST - Appellant borrowed money by way of ‘syndicated loans' from various overseas banks for purpose of international acquisitions and capital expansions - Borrowing and lending are two sides of the same coin and one cannot exist without the other - hence a service rendered in relation to ‘borrowing' could also be considered as a service in relation to ‘lending' - appellant paid arrangement fees, agency fees, commitment fees or other fees for procuring lender/lender syndicate - SCN clearly lists the activity undertaken to be ‘lending' which is one of the specified services under ‘Banking and Financial Services' - service correctly classifiable under Banking & Financial Services -tax liability under reverse charge mechanism has come into force from 18.04.2006 in terms of section 66A of the Finance Act, 1994 - demand for the prior period not sustainable - appellant did not inform their activities to the department even though they had Service Tax registration for other purposes - they could have sought clarification from the department if they had any doubt - withholding of information tantamount to suppression of facts especially in the context of a tax regime based on self-assessment and voluntary compliance - appellant has not pleaded any financial hardship - since the balance of convenience lies in favour of revenue and the appellant has not made a prima facie case for waiver, appellant ordered to make pre-deposit of Rs. 1Crore: CESTAT [paras 5, 5.1, 5.2, 5.3, 5.4, 5.5 & 6]



M/s Gujarat Reclaim & Rubber Products Ltd Vs CCE (Dated : May 1, 2012)

Central Excise - CENVAT - Input Service - Maintenance of SAP System - Input Service Distributor - Proportionate Credit - Stay / Dispensation of pre-deposit - SAP system is definitely relatable to manufacture. It is settled law that there is no provision in the law to require the assessee's unit to take only proportionate credit. Prima facie case made out for grant of stay.(Para 4)


M/s Apollo Tyres Ltd Vs CCE (Dated : June 29, 2012)

Service Tax – Refund – Denial of refund of Service Tax amount paid on the services rendered by the service provider, under the category of Terminal Handling Services –Followed the decision of Tribunal in the case of Macro Polymers Pvt. Limited (2010-TIOL-1534-CESTAT-AHM) - Terminal Handling Charges paid to port authorities for port services and collected by CHA as reimbursement from assessee, service tax paid thereon allowable as refund (Para 5).


M/s St Mary's Tyre Re-Moulding Works Vs CCE (Dated : June 28, 2012)

Service Tax – Stay / Pre-deposit of Duty – Maintenance and Repair Service -Retreading of tyres whether service or manufacture - the appellant receives tyres from various transporters and others for retreading the same - The argument of the ld. counsel is that it would amount to manufacture - Prima-facie, if the appellant purchases the tyres, retreads himself and sells the same, then it may be manufacturing - The activity undertaken by the appellant, prima-facie may be covered under definition of maintenance and repair services - The appellant has not made out a prima-facie case for complete waiver of the amounts involved – Ordered for pre-deposit of 25% of the amount of service tax liability confirmed (Para 5).


M/s VED Pharmaceuticals Pvt Ltd Vs CCE (Dated : June 28, 2012)

Service Tax - Condonation of Delay – 29 days delay in filing of appeal before the Tribunal – Director of the applicant company was abroad during the time when the orders were received from the superintendent - The appellant company or the director was not aware of the receipt of the passing of the order - In support of that, the appellant filed a notarized affidavit - The applicant has made out case for condoning the delay (Para 2 & 3).


J C Maroo Vs CCE (Dated : July 25, 2012)

As Respondent Shri J.C.Maroo has expired, appeal abates but Revenue can take further action in accordance with the provisions of rule 22 of the CESTAT (Procedure) Rules, 1982: CESTAT [para 1]


M/s Enercon (India) Ltd Vs CCE(Dated : October 29, 2012)

ST- Prior to 01.06.2007 specific service mainly Works Contract was not available in the statute and, therefore, applying the principles of classification as enumerated in Section 65A of Finance Act, 1994, the claim of the appellant that prior to 01.06.2007 the service itself was not liable to tax cannot be upheld - Moreover, it was never the case of the appellant that their contract was Works Contract inasmuch as they were paying ST from the date of levy under the category of Erection, Commissioning or Installation Service, Commercial or Industrial Construction service – Benefit of notfn. 1/2006-ST is not available as appellant was availing CENVAT credit on inputs/input services – Pre-deposit ordered of Rs.4.5 Crores: CESTAT [paras 10, 11, 12, 13 & 17]



HDFC Bank Vs CCE (Dated : September 24, 2012)

ST - Activity of issue of Credit card and service in relation thereto – prima facie view is that applicant is liable to pay ST on the said activity for the period 18.04.2006 to 30.04.2006 under the category of ‘Banking & Financial Services' – Pre-deposit ordered of adjudged ST amount: CESTAT [para 2]


M/s TVS Motor Company Ltd Vs CCE (Dated : June 13, 2012)

Service Tax – Services received from outside India – Liability to pay service tax under Section 66A of the Finance Act, 1994 arises only from 18.04.2006 – Demand prior to 18.04.2006 set aside.

Valuation under reverse charge – Income tax deducted and paid by the recipient of the service in India on behalf of the overseas service provider is includable in the taxable value – Section 67 of the Finance Act, 1994.

Limitation - Since law was not in force prior to 18.4.2006 to bring the appellant to the purview of service tax on the disputed issue following apex court decision in National Ship-owners Association case, the appellant shall be liable to tax for the normal period covered by the Show Cause Notice.

Penalty - considering the difficulty in understanding the law applicable at inception and date of incidence to taxability, penalty under Section 78 is set aside.

Vakalat – In the absence of a valid Vakalatnama by the Advocates purported to represent the appellant, they can neither be allowed to represent the appellants nor any adjournment request from them can be entertained. Hence, the adjournment request is declined.


CCE Vs M/s Swapan Kumar Paul (Dated : July 3, 2012)

Service Tax - Rent a Cab - Demand - Principles of Natural Justice - From the record it is seen that the lower adjudicating authority has not given effective hearing and has not given findings on the submission made by the assessee. Commissioner (Appeals)

also has not given any findings on the submissions made by the assessee. Matter remanded to the lower adjudicating authority for deciding the issue afresh, following the principles of natural justice. (Para 6)


M/s Eveready Industries India Ltd Vs CCE (Dated : June 15, 2012)

Service Tax – Input Service Distributor – Proportionate distribution is not required till the amendment of relevant Rules from 01.04.2012 – Matter remanded in the light of Karnataka High Court judgement in case of ECOF Industries Pvt Ltd.


M/s Elixir Training Services Pvt Ltd Vs CCE (Dated : August 2, 2012)

ST - Applicants are conducting various courses in respect of spoken English – Demand of Rs.3.88 Crores confirmed on the ground that applicants are providing ‘Commercial Training & Coaching Services' – prima facie case in favour in view of Board Circular 59/8/2003-ST clarifying that foreign language institutes are not liable to pay Service Tax – Pre-deposit waived and stay ordered: CESTAT [paras 4 & 5]



Reliance Industries Ltd Vs CC (Dated : May 28, 2012)

ST - IPR Service - applicant under bonafide belief that since the service of technical transfer is a secret of their trade activity and is not registered as a patent ST is not leviable - if applicant had paid ST, the same was entitled as CENVAT credit - being a revenue neutral situation, applicant has made a strong prima facie case for waiver of pre-deposit - Pre-deposit waived and stay granted: CESTAT [para 5]


CST Vs M/s TTS Systemetix Pvt Ltd (Dated : July 13, 2012)

Service Tax - Consulting Engineering - Demand - Power of remand by Commissioner (Appeals) - Commissioner (Appeals) does not have power under Section 85 (4) of the Finance Act, 1994 to remand the case to the lower adjudicating authority. However, on going through the findings of the ld. Commissioner (Appeals), it is seen that the issues considered therein are required to be examined by the adjudicating authority. In these circumstances, matter remanded to the adjudicating authority for deciding the issue afresh. The order of the Commissioner (Appeals) is set aside and the appeal filed by the Revenue is allowed by way of remand. (Para 5)


M/s Rajpath Club Ltd Vs CST (Dated : July 4, 2012)

Service Tax – Membership of Club/Association Service – Service Tax payable on charges collected towards residential rooms to the members and their guests on a temporary basis under the head Membership of Club/Association Service – Ordered for pre-deposit – Prima facie case in favour of Revenue - the issue is required to be considered in the light of not only the definition of different services, but also the issues which have been rendered during the relevant period. Since lot of details are required to be gone into for consideration and prima facie, the Service Tax may be levied, it is appropriate that the appellant should be asked to make some deposit.–Ordered for pre-deposit of Rs.15 Lakhs (Para 3 & 4).


Crompton Greaves Ltd Vs CCE (Dated : September 7, 2012)

Leviability of Service Tax on a transaction which took place abroad – since issue concerns leviability of tax matter cannot be heard by Single Member Bench but by a Division Bench in view of section 86(7) of the Finance Act, 1994 read with section 35D(3) of the CEA, 1944: CESTAT [para 1]



M/s Indokem Ltd Vs CCE (Dated : April 26, 2012)

Central Excise - CENVAT - Input Service - Absence of duty paying documents - The assessee submits that they now have the original documents and can satisfy the department that the credit has been taken on the basis of original documents. Matter remanded for verification of original documents and passing orders afresh. (Para 2 & 4)


M/s Welspun Corporation Ltd Vs CCE (Dated : August 13, 2012)

Service Tax - Services Received from Abroad - Reverse Charge Mechanism - Demand from Service Receiver - Stay / Dispensation of pre-deposit - It is seen from the record that the Head office of the assessee has deposited service tax demanded. However, the challans under which deposits are made does not indicate the heading under which the amount has been paid and whether it is for the services received at their Branches. The fact is the amount deposited is equal to the demand confirmed. In the circumstances, the said amount can be considered as enough deposit to hear and dispose the appeal. (Para 6)


M/s BSNL Vs CST (Dated : June 5, 2012)

Service Tax – CENVAT Credit – CENVAT Credit demanded on the ground that telephone cables in respect of which credit has been availed were removed outside the premises and not brought back within 180 days - Cables were laid underground which was essential for providing the output service viz., telephone services and the same cannot be brought back to the premises again – No violation of Rule 3(5) of the CENVAT Credit Rules, 2004.


PRS Permacel Pvt Ltd Vs CCE (Dated : August 13, 2012)

CENVAT – Service tax paid on services availed by the job worker, whether entitled for credit – applicant has not disclosed the nature of services availed by the job worker before the lower authorities – in such a scenario, applicant has not made a prima facie case in their favour – pre-deposit ordered: CESTAT [para 5]


M/s Carpenters Classics India Pvt Ltd Vs CST (Dated : April 17, 2012)

Service Tax – Stay/Pre-deposit of Tax – Demand – Limitation – Followed the decision of Altair Engineering India Pvt. Limited ( 2011-TIOL-1988-CESTAT-BANG ) -Prima facie, in agreement with the Commissioner finding regarding absence of guilty mind

for warranting imposition of penalty under Section 78 of Finance Act, 1994 - Extended period of limitation not invocable – Waived pre-deposit of dues (Para 3).


CC & CE Vs M/s The India Cements Ltd (Dated : February 27, 2012)

Central Excise – CENVAT – Eligibility of CENVAT Credit paid on Outdoor Catering Service – Followed the decision of Stanzen Toyotetsu India (P) Ltd. - (2011-TIOL-866-HC-KAR-ST) – Remanded the case back to original authority to ascertain whether (a) the respondent employed more than 250 workers during the material period and (b) the amount of Rs.16,380/- reversed by them in their CENVAT account in the month ofMarch 2011 represents the service tax element in the cost of canteen coupons collected from their workers/employees during the relevant period (Para 5 & 6).


M/s Bharat Petroleum Corporation Ltd Vs CCE (Dated : April 18, 2012)

CENVAT – Input Service - ST paid on telephone installed at the residence of the company officials is available as credit – issue settled in case of Keltech Energies Ltd. - (2008-TIOL-419-CESTAT-BANG) – prima facie applicant has a strong case in favour – pre-deposit waived and stay granted: CESTAT [para 2]


Anand Ashok Budhraja Vs CCE (Dated : May 31, 2012)

Service Tax on Activity of Management, maintenance and repairs of Roads has been exempted retrospectively for the period 16.06.2005 to 26.07.2009 by insertion of section 97 in the FA, 1994 by the Finance Act, 2012 – demand not sustainable –orders confirming ST demands set aside and appeals allowed with consequential relief: CESTAT [para 5]


Chennai City Centre Holding Pvt Ltd Vs CST (Dated : June 8, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Maintenance of common areas of commercial mall and collection of charges incurred for such maintenance from the individual shop owners – No prima facie case made out for waiver of pre-deposit –50% of the balance amount to be paid ordered to be deposited.


Smt Beena Goyal Vs CCE (Dated : September 6, 2012)

Service Tax - Stock Broker service - Short payment of service tax on the commission received as sub-broker - Penalty - No case to impose penalty under Section 76 and 78 - Penalty under Section 76 set aside and penalty under Section 78 upheld - Demand of service tax under Business Auxiliary service - Appellant's contention that during the material period, only services rendered by commercial concerns were taxable is acceptable - Demand under Business Auxiliary service set aside.


M/s Trivedi Associates Vs CST (Dated : September 21, 2012)

ST – Financial difficulty - Nobody can make a claim that the investment in equity shares should be kept intact while the Service Tax liability should be deferred by exercising the discretion of the Tribunal – Commercial or Industrial construction -claim that amount received for services rendered prior to 10.09.2004 has also taken while computing demand of Service Tax is unfounded – annexure to SCN gives allowance for these amounts & same not contradicted by appellant – claim that service falls under Works Contract & which is chargeable to ST from 01.06.2007 has not been made before lower authorities or in appeal memorandum filed before CESTAT and, therefore, is too late for being considered - Pre-deposit ordered of adjudged ST amount: CESTAT [para 4]



Vodafone Essar South Ltd Vs CST (Dated : April 30, 2012)

Service Tax – Stray / pre-deposit of Tax – Denial CENVAT Credit on Rent-a-cab Service – Followed the decision of Federal Mogul Goetze (India) Ltd. ( 2011-TIOL-650-HC-P&H-ST) - 'rent-a-cab service' utilised for ferrying employees is an 'input service' under Rule 2 (l) of the CENVAT Credit Rules, 2004 – Waived pre-deposit in relation to Rent-a-cab service (Para 2).

Service Tax – Stray / pre-deposit of Tax – Denial CENVAT Credit on Outdoor Catering Service & Housekeeping Service – Followed the decision of Ultratech Cement Ltd. ( 2010-TIOL-745-HC-MUM-ST) and Toyotetsu India (P) Ltd. ( 2011-TIOL-866-HC-KAR-ST) – the appellants have to comply with the statutory requirement under Section 46 of the Factories Act - The ld counsel has submitted that the 'outdoor catering service' was availed by various output-service-providing units of the appellant, and that the

total strength of workers is more than 250 - There is no documentary evidence in this behalf - the appellant has not made out a prima facie case against the demand raised – Ordered for pre-deposit of Rs.15 Lakhs (Para 3, 4 & 5).


M/s Tinna Oils & Chemicals Ltd Vs CCE, C& ST (Dated : May 2, 2012)

Service Tax – Stay / Pre-deposit of Tax – The major demand is under the head 'Storage and Warehousing Service' - The Department has held that the entire activities fall under the category of 'Storage and Warehousing Service', whereas the appellants are contending that the entire activities fall under the category of 'Cargo Handling Service' - On a careful reading of the clauses of the agreement, it appears that the appellants are rendering the services of cargo handing as well as warehousing and that they have prescribed separate rates for both the activities - The warehousing rents are roughly 10% of the cargo handling rates - Ordered for pre-deposit of Rs.15 Lakhs (Para ).


M/s P C Snehal Construction Co Vs CST (Dated : June 25, 2012)

Service Tax – Stay / Pre-deposit of Tax – Valuation - Non-inclusion of cost of free material supplied to the appellant by the service recipient - Service Tax Valuation Rules provides for inclusion of free material supplied by service recipients - In this case, the appellant already deposited an amount of Rs.9,04,000/- against the demand of Rs.38.53 lakhs for the entire period - the amount deposited by the appellant is enough deposit to hear and dispose the appeal (Para 3).


M/s Edelweiss Stock Broking Ltd Vs CST (Dated : June 25, 2012)

Service Tax – Stay / Pre-deposit of Tax – Stock Broker Service - Service Tax liability on NSE/BSE transaction charges and SEBI turnover fees – Followed the decision of Shah Investors Home Ltd.- ( 2012-TIOL-1557-CESTAT-AHM ) - Service Tax is not leviable on such payments received by the assessee - the appellant has made out a case for waiver of pre-deposit of amounts involved (Para).


M/s Unitop Chemicals Private Ltd Vs CCE (Dated : August 14, 2012)

CENVAT – ST paid by Customs House Agents in connection with the export of goods from the port is an Input Service – similarly, ST paid on telephone and Insurance charges in respect of plant and machinery and employee are also input services, however, ST paid on Insurance charges in respect of goods in transit, after removal of goods from factory is not covered in definition of Input Service under CCR – applicant directed to make a pre-deposit in this regard: CESTAT [para 5]


State Bank of Hyderabad Vs CC, CE & ST (Dated : February 17, 2012)

Service Tax – Service of Order-in-Original - The Order-In-Original was sent by Speed Post and not by Registered Post acknowledgment due - No doubt according to provisions of Section 37C if the letter had been sent by registered post acknowledgment due, whether it was deemed to be received was required to be examined - It is clear that the Order-In-Original was sent by speed post, the responsibility to show that it was received by the appellant is on the department - It was submitted by the learned DR that department did not have any evidence to show that the appellant has received the Order-In-Original - Under these circumstances, the claim made by the appellant that they had not received the Order-In-Original and they had collected it on 22.03.2011 has to be accepted – Matter remanded for reconsideration of the Commissioner (Appeals) for fresh decision (Para 4).


Ordnance Factory Vs CCE (Dated : September 25, 2012)

ST demand confirmed under the category ‘Renting of Immovable property service' –appellant submitting that since the gross amount is less than Rs.8 lakhs, benefit of exemption under notification 6/2005-ST available – Revenue representative informs that the applicant is also registered under ‘GTA' and if the gross amounts of both the services are included then benefit of notfn. not available – prima facie applicant liable to pay ST - pre-deposit ordered of entire ST demanded: CESTAT [para 5]


CST Vs M/s Aviva Global Services (Bangalore) Pvt Ltd (Dated : February 21, 2012)

Service Tax – Refund – Power of Commissioner (Appeals) for remand of cases - The original authority rejected the claim of refund on the ground that no nexus was established between the input services and the output service - the Appellate authority found nexus between the output service and some of the input services and directed the lower authority to re-quantify the amount for refund – Revenue filed

appeal on the ground that the appellate Commissioner did not have the power of remand - the appellate authority itself took a view on the nexus issue and sent the case back to the original authority for the limited purpose of re-quantification of the amount for refund - It was not a remand and hence the Revenue's challenge fails (Para 4).

Service Tax – Refund - Registration - Denial of refund on the ground of absence of registration with the department – In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law (Para 5).

Service Tax – Refund - Eligibility of Air ticket booking and Professional Charges - The air tickets were used by employees of the company in connection with the business of the company - The professional charges were paid to Chartered Accountants in connection with the business of the company - The ld counsel for the assessee submits that, given an opportunity, the requisite evidence can be adduced before the original authority – Ordered to take on these services after hearing from the assesses (Para 6 & 7).


M/s Mandovi Motors Pvt Ltd Vs CCE (Dated : February 17, 2012)

Service Tax - Authorized Service Station Service – SCN proposed demand of Service Tax on the ground that premium received towards extended warranty services by the appellant was liable to service tax under the category of 'Authorized Service Station Service' whereas the Commissioner (Appeals) confirmed the demand of Service Tax under the category 'Business Auxiliary Service' - the Commissioner (Appeals) travelled beyond the scope of the SCN - the appellants are not challenging the demand for service tax and appropriation of the amount of service tax and interest paid by them and therefore whatever has been paid and appropriated has to be upheld - while upholding the appropriation of service tax and interest paid by the appellants as not contested, imposition of penalty under Section 76 of Finance Act 1994 is set aside and appeal allowed to this extent (Para 4 & 5).


CCE Vs M/s Vardhman Acrylic Ltd (Dated : June 26, 2012)

Central Excise - CENVAT - Input Service - Out-door catering Service - Service tax paid on outdoor catering provided in the factory canteen is input service and hence eligible for credit. (Para 2)


M/s Royal Touch Aluminium Pvt Ltd Vs CCE (Dated : April 27, 2012)

Central Excise - CENVAT - Input Service - Job-worker Service - Cargo handling Service - Cenvat credit of service tax paid by the job worker is eligible and is a settled matter. Regarding cargo handling service, the invoice clearly shows the name of the assessee and amount has been paid on their behalf and there is no dispute that service has been received by them, the credit is admissible. (Para 3)


Shri Pankajbhai Champaklal Parekh Vs CST (Dated : September 18, 2012)

ST – Renting of immovable property - Three individuals are co-owners of a building and have rented out the premises to a person who issues different cheques to all individuals – Revenue considering the amounts received by all individuals collectively and by denying benefit of SSI exemption holding them liable to Service Tax on an individual basis – Prima facie, each applicant would get benefit of SSI exemption as they are provider of service on individual basis – strong case in favour – Pre-deposit waived and stay granted: CESTAT [para 6]



Panacea Biotec Ltd Vs CST (Dated : September 4, 2012)

Central Excise – CENVAT Credit – Credit availed on the strength of invoices issued by ISD sought to be denied on the ground that the invoices based on which the credit has been availed details of service provider at Head Office – Contention of the assessee that the service tax was paid at Head Office under reverse charge and the question of details like Invoice No etc does not arise – Since this plea was not raised before the lower authorities, matter remanded – Issue of admissibility of CENVAT Credit on outdoor catering and Mandap Keeping service also remanded in the light of High Court judgements .


M/s Surya Engineers Vs CC, CE &ST (Dated : May 30, 2012)

Service Tax – Stay / Pre-deposit of Tax - Commercial or Industrial Construction Service – the appellant paying duty on works contract service from June, 2007 –department issued SCN for the period prior to June, 2007 under the head Commercial or Industrial Construction Service – the plea of the appellant that the activities

undertaken prior to 01.06.2007 and thereafter were similar and hence cannot be classified under different heads – Held: On a perusal of definitions of 'Works Contract Service' and 'Commercial or Industrial Construction Service', there is some parity between two clauses of the two definitions - These clauses cover construction of civil structure for purposes involving commercial/industrial element – It is contentious to argue that the activity in question classifiable only under Works Contract Service to the exclusion of the other service (Para 2).

Service Tax – Stay / Pre-deposit of Tax – Limitation - prima facie case for the appellant on the ground of limitation – SCN issued on 15.04.2010 for recovery of service tax for the period from October 2004 to March 2008 - The extended period of limitation was invoked on the alleged ground of suppression of facts by the assessee with intent to evade payment of service tax - Enough materials to indicate that the appellant did not have any intent to evade payment of service tax - demand is prima facie hit by limitation (Para 3).


TVS Motor Company Ltd Vs CCE (Dated : June 13, 2012)

Service Tax – Business Auxiliary Service – Referral Charges received from ICICI Bank, HDFC Bank and Oriental Insurance Company in relation to providing infrastructural facility by the dealers and authorized service centres to promote the business of extending credit facility and insurance service to the prospective customers identified by the appellant - There was flow of consideration from banks to the appellant for the promotion and marketing services provided by the latter to the former – Demand of service tax under Business Auxiliary Service upheld – Penalty under Section 78 is upheld while penalty under Section 76 is set aside – Original authority should also give the option of paying 25% penalty – Cum-tax benefit is allowed.


H T Shinde Vs CCE (Dated : August 1, 2012)

ST – Applicant entered into contract with sugar factory for execution of work of transporting sugar bags, stacking and de-stacking of the same – prima facie it cannot be said that applicant is engaged in supply of labour or manpower so as to be charged to ST under the category of ‘Manpower recruitment Agency service' – strong prima facie case for waiver of Pre-deposit of the adjudged dues: CESTAT


M/s Srilankan Airlines Vs CST (Dated : July 16, 2012)

Service Tax – Demand of service tax on Transportation of cargo by Air – Demand upheld for the period from 16.06.2005, i.e., after insertion of the condition in Export of Service Rules, 2005 that the payment for service should be received in convertible foreign currency vide Notification No 28/2005 ST, effective from 16.06.2005 –Appellant started paying service tax from 24.06.2005 only – Demand upheld for the period from 16.06.2005 to 23.06.2005.

Suppression of facts - When the appellant came to know of the position say on 23.06.2005, they should have paid service tax for the previous 7 days also. Therefore the argument that they were under the bonafide belief is not acceptable -Extended period of time can be invoked.

Section 80 - Section 80 provides for waiver of penalty imposed under Section 78 also - That means even under a case where there is suppression there is a scope for invoking Section 80 though such case can be rare – The very fact that Section 80 mentions penalty under section 78 shows that in exceptional cases waiver can be granted under Section 80 even when suppression is invoked – Benefit of Section 80 extended to the appellant.



M/s BESL Infra Projects Ltd Vs CCE (Dated : June 20, 2012)

Service Tax – Stay / Pre-deposit of tax - Commercial or Industrial Construction Service - The remand order passed by the Bench has not been carried into effect in letter and spirit by the adjudicating authority - In any case, the findings recorded in the impugned order by the ld Commissioner by merely following his predecessor's findings without independent application of mind do not inspire confidence – Pre-deposit waived (Para 4).


M/s Gauri Ganesha Real Estates (Dissolved Firm) Vs CST (Dated : June 28, 2012)

Service Tax – Stay / Pre-deposit of Tax – Real Estate Agency Service – The appellants were not purchasing and selling immovable properties - They were only holding 'General Power of Attorney' of the property owners and, in that capacity, selling the property to M/s Sahara India - The 'sale consideration' was given to the sellers and the difference between that amount and the higher amount mentioned in the relevant purchase' agreement was retained by the appellants - For all practical purposes, the appellants were acting as agents of the sellers of the immovable properties - The nature of these transactions would prima facie bring them within the ambit of the definition of "real estate agent" under Section 65 (88) of the Finance Act, 1994 -Prima facie , the money retained by the appellants after executing the 'sale deeds' in favour of Sahara India on behalf of the sellers is in the nature of 'commission' - The impugned demand is on this 'commission' and the same is prima facie sustainable on

merits (Para 4).

Service Tax – Stay / Pre-deposit of Tax – Limitation - It is not in dispute that the appellants did not care to get registered with the department in respect of Real Estate Agency service and also did not file returns - Needless to say that they did not pay service tax on the above 'commission' - They suppressed the relevant facts before the department -– Ordered for pre-deposit of Rs.30 Lakhs (Para 4 & 5).


M/s Freight Systems P Ltd Vs CST (Dated : August 1, 2012)

Prima facie Service tax is not leviable on freight forwarding agency service and multimodal transport service - Pre-deposit waived and stay granted: CESTAT [para 2]


Shah Investors Home Ltd Vs CCE (Dated : March 22, 2011)

Service Tax – Stay / Pre-deposit of Tax – Stock Broker Services - Demand of Service Tax on NSE/BSE transaction charges and SEBI turnover fees – Followed the decision of Anagram Capital Ltd. (2009-TIOL-1018-CESTAT-AHM) wherein the Tribunal held that such charges were liable to Service Tax from May 2008 and not before that - the period of dispute is before May 2008 and the ratio of the above decision would fully apply to the facts of the present case - Pre-deposit waived (Para 2).

Judicial Discipline - Non-following of precedent by the Commissioner (Appeals) and directed for pre-deposit - Modification application filed by assessee relying on Tribunal order waiving pre-deposit in an identical dispute disposed by Commissioner (Appeals) observing that only interim order of unconditional stay given in relied upon order - No discussion as to how facts different - Commissioner (Appeals) not appreciating fact that Tribunal's stay order relied upon for purpose of stay only - Impugned order not justifiable (Para 2 & 3).


M/s Rotographics Vs CCE (Dated : June 13, 2012)

Service Tax – Stay / Pre-deposit of Tax – Business Auxiliary Service – Limitation -Demand on amounts collected from customer for Lamination/Metalization of duty paid plastic film – The plea of the appellants that they informed the department about their nature of the ongoing activities vide their letter dated 24.10.2005 - The letter also did not advert to any service-tax-related subject like Business Auxiliary Service - Nothing contained in the said letter dated 24/10/2005 can be construed as a communication of relevant facts to the department - The plea of limitation is prima facie unacceptable -

Needless to say that the appellant was liable to pay service tax under the Head "Business Auxiliary Service" during the entire period of dispute inasmuch as their activity was one which was declared by the apex court, as early as in February 2004, as not amounting to manufacture - Ordered for pre-deposit of Rs.50 Lakhs (Para 2 & 4).


M/s Sai Maruthi Travels Vs CCE (Dated : June 19, 2012)

Service Tax – Limitation – The Power of Commissioner (Appeals) to condone delay in filing of appeals – Followed the decision of Singh Enterprises (2007-TIOL-231-SC-CX) - Commissioner (Appeals) cannot condone delay beyond prescribed in law (Para 3 & 4).


M/s Divya Tourism Pvt Ltd Vs CST (Dated : September 25, 2012)

ST – Investigation report by the Commissioner indicates that his office could not trace the dispatch records for the period December 2008 to January 2009 to prove that the O-in-O dated 29.12.2008 was served – appellant's claim that they received the order only in December, 2010 and filed appeal in March, 2011 before Commr(A) and which is in time as per statute has to be accepted – Matter remanded: CESTAT [paras 7 & 8]



M/s Acumen Capital Market (India) Ltd Vs CCE, C & ST (Dated : December 29, 2011)

Service Tax - Stay/Pre-deposit of Tax – Taxable Value of Stock Broker Service –Collection of Account Maintenance Charges - Prima facie, the activity of a stock broker and that of a Depository Participant are two distinct activities and they are separately registered for the said purposes - Prima facie, a Depository Participant need not be a stock broker and similarly a stock broker need not be a Depository Participant - The charges collected towards 'account maintenance charges' as a Depository Participant may not be includible in the taxable value of stock broking services – Pre-deposit waived (Para 5).


CST Vs M/s Actavis Pharma Development Centre (P) Ltd (Dated : June 20, 2012)

Service Tax – Stay / Pre-deposit of Tax – Refund – rejection of Refund of accumulated CENVAT credit on account of exports, by the original authority – the Commissioner (Appeals) allowed the appeal subject to the condition that the respondent produce a certificate from Chartered Accountant to the Original Authority in terms of Board's Circular No.120/1/2010 dated 19/01/2010 – In the Commissioner's (Appeals) order there is no clear finding on the question whether the party claiming refund established any nexus between the exported services and the so-called input services as required under Rule 5 of CENVAT Credit Rules 2004 read with Notification No.5/2006-CE(NT) -The circular which prescribed production of Chartered Accountant's certificate in cases involving claim for refund of more than Rs.5,00,000/- did not lay down any guidelines as to how to deal with substantive issue of nexus – Stay granted (Para 1 & 2).


M/s Accentia Technologies Ltd Vs CCE (Dated : June 13, 2012)

Service Tax – Commercial Training or Coaching Service – Non-application of Mind -the appellant had raised certain contentions which merited consideration by the adjudicating authority - They denied service tax liability, in the first instance, under the Heading "Commercial Training or Coaching service" - Alternatively, they claimed the benefit of an exemption notification by submitting that their activities were at best classifiable as vocational training - They also contended that the extended period of limitation was not invokable - None of these contentions was considered by the adjudicating authority - The impugned order does not disclose any reasoning to support the one-liner findings recorded in paragraphs 5 & 6 thereof - the impugned order can be said to be suffering from non-application of mind to the assessee's case -The order is not a speaking order on the issues raised by the assessee before the adjudicating authority - Appeal allowed by way of remand (Para 4 & 5).


Space Age Associates Vs CCE (Dated : September 12, 2012)

ST – Audit conducted in the year 2009 and demand raised in respect of GTA service which applicant paid – later in October, 2010 SCN issued for period 2005-06 onwards demanding ST of Rs.6.35 Crores on gross amounts received in respect of various contracts of Erection, Installation & Commissioning – Prima facie applicant has strong case on the issue of time bar – since no evidence produced by way of invoices to show sale of goods and raw materials to customers, benefit of notfn. 12/2003-ST is not available – benefit of abatement under notfn. 1/2006-ST is also doubtful as applicant has availed Input Service credit to the extent of about Rs.30 lakhs – no prima facie case for total waiver of dues - Pre-deposit ordered of Rs.1 Crore: CESTAT



M/s Pfizer Ltd Vs CCE (Dated : February 10, 2012)

Services in relation to Convention services, memberships of Clubs & Association Services, Health Club and Fitness Centre Services and Housekeeping services are not Input Services since they are not used in relation to the business of manufacturing final product – Pre-deposit ordered: CESTAT [para 2]


Kingfisher Airlines Ltd Vs CST (Dated : May 28, 2012)

ST - Sponsorship Service - Applicants entered an agreement with BCCI for organizing IPL 20-20 tournament wherein the applicants are sponsors for Umpire under a ‘sponsor agreement' and in terms of which Umpires in the tournament shall wear logo of the applicant on their dresses and their logo will be displayed on screen when decision in game is referred to the third umpire - since the said activity is undertaken in relation to sponsorship of sports events, they are exempted in terms of section 65(105)(zzzn) of FA, 1994 and is taxable only w.e.f 01.07.2010 when exemption was withdrawn - Applicant has made a case for 100% waiver of pre-deposit - Stay granted: CESTAT [para 6]


M/s Mangalore Tourist Service Vs CCE (Dated : May 30, 2012)

Service Tax – Tourist Operator Service - The dispute relates to the services rendered by the appellants to their customers using the vehicles which they have taken on hire from third parties - It is not in dispute that the appellants have raised bills for the service charges including service tax in respect of the said services rendered using such vehicles – The appellants, in fact, collected the service tax under the category of 'Tourist Operator Services' – Hence, the claim that they passed on the entire amount except 5% of the commission to the vehicle owners cannot be appreciated - Such an action does not absolve them of their liability to pay the service tax - The term 'Tour' always meant a journey from one place to another irrespective of the distance between such places and that "Tour Operator" always meant or included a person engaged in the business of operating tours in a tourist vehicle covered by a permit granted under the Motor Vehicles Act, 1988 or the rules made thereunder - From these provisions, it would become abundantly clear that the activities of the appellants fell within the definition of "tour" and accordingly the assessees fell within the ambit of "tour operator" defined from time to time - The activities of the appellant fall under the category of 'Tour Operator Services' even when they use vehicles belonging to third parties (Para 6.2, 6.3 & 6.4).

Service Tax – Tourist Operator Service – Limitation - The appellants were registered as service tax provider under the category of "Tour Operator Services" and failed to disclose the service charges, in respect of services rendered using vehicles of third parties, in the returns filed by them - This is in spite of the fact that they have collected the service tax from their customers – Hence, invocation of extended period of limitation on the appellants are justified (Para 6.5).

Service Tax – Tourist Operator Service – Benefit of Exemption under Notification No.15/2007-S.T - The Notification 15/2007 exempted service tax on value in excess of 40% of the gross amount for the period from 01.04.2000 onwards - Benefit of this notification needs to be allowed and the tax liability re-determined - This re-quantification of tax is required to be done by the original authority - Consequently, the amount of penalty under Section 78 also needs to be re-determined (Para 7).


M/s IDS Systems Pvt Ltd Vs CCE (Dated : April 18, 2012)

Service Tax – Stay / Pre-deposit of Tax - Manpower Recruitment & Supply Agency Service – The work undertaken by the appellant is development of software and the same was undertaken by deputing their skilled employees to the premises of their clients and the employees were working directly under Project Managers appointed by the appellant. The activities of the appellant may not deserve to be considered as 'Supply of Manpower' but as rendering of ‘Information Technology Software Service' -The appellants are eligible for waiver of pre-deposit (Para 6.1).

Service Tax – Stay / Pre-deposit of Tax - Denial of CENVAT credit - There is no requirement of filing separate Returns under Rule 9(9) of the CENVAT Credit Rules, 2004 and therefore, there is no warrant to order pre-deposit (Para 6.1).


Fie Spherotech Vs CCE (Dated : May 1, 2012)

COD – delay of 15 days in filing appeal as appellant was seeking legal opinion –Commr(A) dismissing appeal as time barred - refusal to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated – matter remanded for decision on merits: CESTAT [para 5]


M/s Gujarat State Road Transport Corporation Vs CST (Dated : June 28,2012)

Service Tax – Stay / pre-deposit of Tax – Rent-a-Cab Scheme - the appellants provided buses to ONGC on a fixed amount basis – Followed the decision of Tribunal

in the case Shree Gayatri Tourist Bus Service (2012-TIOL-475-CESTAT-AHM) – The appellant made out a prima-facie case for the waiver of the pre-deposit of the amounts involved (Para 3).


M/s Golflinks Software Park Pvt Ltd Vs CST (Dated : June 14, 2012)

Service Tax – Stay / Pre-deposit of Tax – Renting of Immovable Property service –Demand - CENVAT Credit - the prima facie view that services such as ‘Architect Service', ‘Erection, Commissioning and Installation Services', ‘Management Consultancy Services', ‘Real Estate Agency Services' ‘Consulting Engineer's Services' etc shall not qualify as input services vis-a-vis 'Renting of Immovable Property Service' - the assessee was prima facie found to be ineligible for CENVAT credit -Ordered for pre-deposit of Rs.1 Crore (Para 5.1, 5.2 & 6).

Service Tax – Stay / Pre-deposit of Tax – Limitation - In the facts and circumstances of the case, nevertheless, the appellant can canvass only an arguable case on the limitation issue and nothing more than that (Para 5.2).


M/s Larsen & Toubro Ltd Vs CCE (Dated : March 27, 2012)

Service Tax – Stay / pre-deposit of Tax – GTA Service - The appellant had entered into a contract with owners of Transit Mixer Vehicles (TMV) for delivery of Ready mix Concrete to the construction sites of customers - The department has treated the appellant as recipient of GTA service from the said owners of TMVs and confirmed the demand of service tax - Prima facie, in agreement with the submission of the ld advocate that the TMVs are on lease basis and they serve not merely the purpose of transporting the ready mix concrete but they are used for "mixing" and the amounts paid by them to the TMV owners cannot be treated as freight – Pre-deposit waived (Para 5).


M/s Axis Bank Ltd Vs CST (Dated : September 3, 2012)

ST - Issue management related service provided by merchant bankers are classifiable under ‘Banking and other financial service' of the FA, 1994 & not as ‘Underwriting services' – applicant has not made a prima facie case in their favour – Axis Bank directed to make a pre-deposit of Rs.50 lakhs: CESTAT


CST Vs M/s. Varizon Data Services (I) (P) Ltd (Dated : May 09, 2012)

Service Tax – Refund of service tax – Whether assessee is entitled for refund of service tax prior to their registration with the department – Issue stands settled in favour of the assessee by the High Court of Karnataka – Revenue appeal is rejected.


Sun Microsystem (I) Pvt Ltd Vs COMMISSIONER (LTU) (Dated : May 30,2012)

Service Tax – Stay / Pre-deposit of Tax - Commercial Training or Coaching Services –Service tax demand raised on the value of CD ROMs sold which contained a kind of "live virtual class" which was provided to enhance the skill or impart knowledge on certain subjects to the buyers of CDs and also on amounts collected for imparting "on line learning/e-learning" to certain customers - Held that : Unlike in a regular coaching, there is no institute, there is no contact whatsoever alleged between the students and the teacher - Prima facie, these activities may not fall under the category of ‘Commercial Training and Coaching' – Pre-deposit waived (Para 5).


Vodafone Essar Cellular Ltd Vs CCE & C (Dated : March 12, 2012)

Service Tax – Stay / Pre-deposit - Denial of CENVAT credit on Works Contract Service which is not accepted as an Input Service for the appellants' ‘Output Service' (Telecommunication Service) - Prima facie, case for the appellant inasmuch as there is a clear analogy between the instant case and the case of Suzuki Motorcycle (2011-TIOL-424-CESTAT-DEL) and therefore the Stay Order passed by the coordinate bench in the latter case can be followed as a precedent – Pre-deposit waived (Para 3)


Adani Ports & Special Economic Zone Ltd Vs CST (Dated : August 30, 2012)

ST - Appellants were eligible for CENVAT credit for the amount paid as ST and, therefore, this is a situation which was revenue neutral - by not paying ST immediately, appellants have lost more than Rs.26 lakhs paid by them as interest which would not have become payable if Service Tax was paid promptly and taken as credit - no service recipient would evade payment of ST and become liable to pay interest which cannot be taken as credit – it cannot be said that there was mis-declaration or suppression and hence extended period could not have been invoked –

since appellant are not contesting demand of ST and interest, same upheld but penalties set aside: CESTAT [para 5]



M/s Larsen And Toubro Ltd Vs CCE (Dated : September 29, 2012)

ST – Maintenance and Repair Services - Appellant engaged in the job work for generation and supply of electricity and steam to M/s. Indian Petrochemicals Corporation Limited – invoices raised on the recipient during the period June 2005 to November, 2005 indicated the ST component but no ST was being paid by appellant –on pointing out the same, liability discharged on 29.12.2005 - appellant challenging imposition of penalty imposed u/s 76 & 77 - appellants had been in continuous correspondence with the purchasers of their goods and they were constantly interacting regarding taxability of the services rendered by them - In the absence of any mens rea to avoid/ evade the service tax liability, in exercise of powers conferred in s. 80 of FA, 1994, penalties imposed u/s 76 & 77 set aside: CESTAT [para 7]


CCE Vs Mittal Technopack P Ltd (Dated : July 27, 2012)

Service Tax - Business Auxiliary Service - Penalty - Section 76 and 78 - Penalty under Section 76 as well as Section 78 cannot be imposed simultaneously even for the period prior to 10-05-2008. (Para 6)


M/s Toshali Cements Pvt Ltd Vs CCE (Dated : June 6, 2012)

Service Tax – Demand – GTA Service – Denial of abatement under Notification No.32/2004-ST dated 3.12.2004 as amended by Notification No.1/2006-ST dated 1.3.2006 - The assessee failed to produce relevant documents to prove that they had in fact satisfied the conditions laid down under Notification Nos.32/2004 and 1/2006 before the Adjudicating Authority - The said documents have now been produced by the assessee with a request under Rule 23 of the CESTAT (Procedure) Rules for taking them on record - it is necessary to remand the case for de novo adjudication of the SCN inasmuch as a major part of the present demand is on account of denial of the benefit of the relevant Notification for want of documentary evidence and such documentary evidence is now available (Para 4 & 6).


M/s Marine Corporation Of India Vs CCE, CC& ST (Dated : March 29, 2012)

Service Tax – Stay / Pre-deposit of Tax - Activity of repair of Vessels and service tax paid under 'Maintenance and repair service' - Valuation of taxable service whether to include materials used for provision of service – In this case, three types of transactions are there, one of outright supply of spares without any service, second one of providing services without supply of any spares and third one of supply of spares along with rendering of services - In the first two categories, prima facie, there is no justification for demand of differential service tax - In respect of the third category, in some cases it is claimed that appellants have excluded the actual value of spares and in some cases the exclusion of value of spares is on a notional basis treating 75% of the contract value as value of spares - Ld counsel submits that if an abatement of 40% is allowed, the service tax will come down to about Rs.13 Lakhs (Para 5.1 & 5.2).

Service Tax – Stay / Pre-deposit of Tax – Limitation - merely because a letter was addressed to the Superintendent of Service Tax, it can not be held that the invocation of extended period of limitation is not justified - Ordered for pre-deposit of Rs.15 Lakhs (Para 5.2 & 6).


M/s Millennia Realtors Pvt Ltd Vs CST (Dated : January 12, 2012)

Service Tax – Stay / Pre-deposit of Tax – CENVAT - Renting of Immovable Property Service - The plea of appellant that the inputs like cement, iron and steel, tiles, marbles, granite, etc. which were used in the construction of the buildings can be treated as inputs in relation to 'Renting of Immovable Property Services', is not legal -They may qualify to be input for earlier stages and not for the purpose of the impugned output service - Prima facie, out of the total amount of about Rs.33 Crores the appellant may not be eligible for credit of about Rs.16 Crores which relate to inputs - many services like security service, services relating to partition of interior decoration, advertisement in relation to renting of the buildings, repair and maintenance, etc. qualify as input services in relation to Renting of Immovable Property Service - Ordered for pre-deposit of Rs.7 Crores (Para 5.2, 5.3 & 6).


M/s Rama Mohana Rao & Co Vs CC, CE & ST (Dated : January 18, 2012)

Service Tax - Stay / Pre-deposit of Tax - Clearing and Forwarding Service - Non-inclusion of certain other charges viz., misc. expenses (electricity, telephone, stationery, courier charges), restocking/reconditioning expenses, EDP expenses, bank

charges, primary and secondary freight, etc., collected from customers in taxable value for payment of service tax - Held: The relevant provisions of the agreement between service receiver and service provider clearly indicate that the service recipient was not liable to ‘reimburse' any charges other than the mutually agreed service charges to the service provider - Prima facie, the appellant's claim for excluding the so-called reimbursements from the gross taxable value of C&F service is not tenable (Para 3).

Service Tax - Limitation - the appellants seem to have a fairly good case on the ground of limitation - a major part of the impugned demand is beyond the normal period - The appellant is said to have held a bona fide belief against the so-called reimbursements in the gross taxable value of the service rendered by them - They are said to have been influenced by certain judicial pronouncements - Prima facie, the appellant has made out a case on the ground of limitation - Ordered for pre-deposit of Rs.25 Lakhs for normal period of limitation (Para 3 & 4).


M/s Raja Ratnaiah Co Chartered Accountants Vs CCE (Dated : March 29, 2012)

Service Tax – Stay / Pre-deposit of Tax – Business Auxiliary Service – Issuance of Demand Notice after death of the person - Section 73(1) of the Finance Act, 1994 and Section 11 A(1) of the Central Excise Act, 1944 are identically worded insofar as “the person liable to pay tax/duty” is concerned - Both the provisions require show-cause notice to be issued to the ‘person chargeable with the tax or duty' as the case may be – Followed the decision of D. Matai (2002-TIOL-477-CESTAT-DEL) - Show cause notice issued for demanding duty to legal heir after the death of sole proprietor is not sustainable in absence of any such provision in the relevant Act (Para 2).


M/s Praxair India Pvt Ltd Vs CST (Dated : November 2, 2011)

Service Tax - Stay / Pre-deposit of Tax - Banking and Financial Services (BFS) - No prima facie case for the appellant against demand of Service Tax on BFS - Prima facie, the activity undertaken by the appellant as a body corporate can be considered to be an activity undertaken by a non-banking financial institution - the appellant can claim a lenient approach in view of the fact that they voluntarily deposited an amount of over Rs.1.7 Crores including penalties in one of the appeals - Ordered for Pre-deposit of Rs.25 Lakhs (Para 3 & 4).


Nihon Trading Company Vs CST (Dated : February 2, 2012)

Service Tax - ROM Application - The mistake pointed out by the appellant is that the 2 nd ground raised in the appeal was not considered while passing the final order - In any case, the controversy arises out of non-consideration of ground No.2 in the final order passed by the Tribunal - As it is not in dispute that the said ground was not considered in the final order, the mistake can be said to be apparent on the face of the record and consequently appropriate correction is warranted - The present application is allowed to the extent of recalling the final order and posted for fresh hearing (Para 3 & 5).


Air India Limited Vs CST (Dated : October 8, 2012)

ST - Notice of hearing was received back un-served with remarks 'Refused' - Since Stay application was disposed ex-parte , order recalled and Stay application restored to its original number – since revenue involved is more than Rs.211 Crores, matter posted for disposal of Stay application – Miscellaneous application allowed: CESTAT.


Global Advertisement Services Pvt Ltd Vs CCE (Dated : August 30, 2012)

ST – Refund - Export of Services by SEZ Unit – unutilized credit of ST paid on input service claimed as refund u/r 5 of CCR, 2004 rejected by adjudicating authority on ground that since the input services were exempted unconditionally by notfn. 9/2009-ST, the appellant should not have paid duty – in appeal, Commissioner(A) rejecting the claim on the ground that SEZ being under the administrative control of the Development Commissioner, the CCR, 2004 and the notification issued thereunder are not applicable – there is no dispute that the input services were not duty paid - Board has clarified vide Circular dated 16.09.2008 that it is for the jurisdictional CE/ST authorities to deal with refund claims filed by SEZ units – since service was exported principle of unjust enrichment does not apply - Order set aside and Matter remanded to examine whether the appellant had filed the claim in time: CESTAT [paras 5 & 6]



M/s Sai Teja Constructions Vs CC, CE & ST (Dated : March 1, 2012)

Service Tax – Commercial or Industrial Construction Service - It appears that the identity of the service recipient is reflected in the orders passed by the original and appellate authorities - Whether the works undertaken by the appellant could be classified as "Industrial or Commercial Construction Service" has to be determined with reference to relevant factors including the character of the service recipient and

the purpose for which the results of the construction activity were intended to be used - There is an apparent mistake of fact looming large in the orders of the original and appellate authorities - Remanded to the original authority for de novo adjudication (Para 4).


M/s Sun Microsystems (I) Pvt Ltd Vs CST (Dated : May 7, 2012)

Service Tax – Stay / Pre-deposit of Tax – 'Business Auxiliary Service - The appellants along with Authorized Sun Education Centre are involved in facilitating conduct of online examination for awarding various certificates by Sun, USA - The learning/training, if any, is taken from other sources and the appellants are enabling conduct of examination and evaluation - The claim that appellants are selling e-vouchers may not deserve to be accepted - Their activities are, prima facie, in relation to conduct of online examination and evaluation by Prometric in relation to certifying professional competence of the aspiring candidates in various spheres of software skills - Ordered for pre-deposit of Rs. 1 Crore (Para 5.1 & 6).

Service Tax – Stay / Pre-deposit of Tax – Limitation - In view of the audit visits in 2005 leading to discussion on the very same activities in 2009 by the Commissioner, the issue of show-cause notice for the period from October 2004 to March 2009 invoking extended period of limitation may not be justified - Ordered for pre-deposit of Rs. 1 Crore (Para 5.2).


M/s Shree Tirupati Transport Pvt Ltd Vs CCE, C & ST (Dated : August 8, 2012)

Service Tax - Power to remand - Commissioner [Appeals] - Commissioner (Appeals) does not have the power to remand even in Service Tax matters. Matter is remanded to the Commissioner (A ) to the decide the matter afresh. (Para 3.1)


S K Kareemun Vs CCE (Dated : August 9, 2012)

Service Tax - Hiring of buses to State RTC - not rent - a - cab service - Pre-deposit waived and recovery stayed: From the terms and conditions of the agreements, it appeares that the buses did not fit in the definition of "cab" under Section 65(20) and the transactions between the Corporation on the one hand and the appellants on the other are not to be considered as squarely falling within the ambit of "rent-a-cab" service. Certain factors emerging from the nature of transactions appear to be incompatible with the features of the rent-a-cab scheme. The buses were admittedly being operated as stage carriage under cover of stage carriage permits. The routes were allotted by the RTOs in accordance with the State Government's policy. The

buses were plied on such routes with fixed timetable determined by the Corporation. The passengers had to pay fares at rates fixed by the State Government. These fares were collected by the Corporation. All these undisputed facts appear to converge to features of a public transport system. In the totality of all these facts and circumstances, the activities undertaken by the appellants were much more than mere hiring of buses to the Corporation and hence might not be covered by the definition of "rent-a-cab" service.



M/s Subramanya Construction & Development Co Ltd Vs CST (Dated : May 28, 2012)

Service Tax - Stay/Pre-deposit of Tax - Renting of Immovable Property - Followed the decision of earlier case of same appellant - Ordered for Pre-deposit of Rs.2.5 Crores (Para 5).


M/s Grandeur Homes Pvt Ltd Vs CCE (Dated : April 18, 2012)

Service Tax – Stay/Pre-deposit of Tax - Construction of Residential Complexes Service – the appellants have sold their flats in semi-finished stage and, thereafter, undertaken services of further construction after entering into agreements with the flat owners - Applicability of the Board's Circulars relied upon by the learned Chartered Accountant and the decisions relied upon by the learned Commissioner (AR) to the facts of these cases requires to be gone into in detail at the time of final disposal – It is appropriate to accept the offer of pre-deposits on behalf of the appellants (Para 5.1, 5.2 & 5.3).


M/s Icomm Tele Ltd Vs CCE (Dated : June 8, 2012)

Service Tax – Stay / Pre-deposit of Tax – Refund - Inasmuch as the refund of excess tax paid is not in dispute, prima facie, the appellants have a case in their favour in respect of interest also and therefore there shall be no recovery of the amount - the Commissioner (Appeals) merely set aside the impugned order and allowed the departmental appeal without ordering for recovery of the interest from the appellants (Para 4).


M/s Ranbaxy Laboratories Ltd Vs CCE (Dated : June 15, 2012)

Central Excise - CENVAT - Input Service - Rent-a-Cab - Service tax paid on service of 'rent a cab' availed by the assessee for bringing their employees from residence to the factory and back is admissible under Cenvat Credit Rules, 2004 . (Para 3)


M/s Larsen & Toubro Limited Vs CCE (Dated : July 4, 2012)

Garden maintenance service is an Input Service, CENVAT Credit admissible – decision in own case 2011-TIOL-85-CESTAT-Mum relied upon: CESTAT [para 5]

Catering Services - Canteen services are also Input services as applicants are not charging from their employees for the services offered to them: CESTAT [para 5]

Invoices produced by applicant do not show any relation between car hiring with the manufacturing activity of the applicant – Pre-deposit ordered of Rs.50,000/- of the CENVAT Credit taken on such services: CESTAT [para 5]


Pimpri Chinchwad Municipal Corporation Vs CCE (Dated : September 5, 2012)

ST - Where the applicants are collecting taxes or license fee in respect of permission granted for putting up advertisement boards on private properties, applicants have a strong prima facie case against demand of Service Tax under the head ‘sale of advertising space' – however, however, in respect of land given for setting up structures for advertising and in r/o advertising boards which were put up on the street light poles and in respect of which charges are being collected, applicant has not made a case for total waiver – since adjudicating authority has invoked s.80 of FA, 1994 to not impose any penalty, pre-deposit ordered of tax for the normal period: CESTAT [paras 9 & 10]



M/s Rajesh Exports Ltd Vs CCE (Dated : April 16, 2012)

Service Tax – Banking and Other Financial Services – Demand – Demand of Service Tax from Service receiver in India under reverse charge mechanism under Section 66 A of the Finance Act, 1994 - The limited case of the appellant is that the services were not received in India - They claim to have received the services outside India - Did they have any office or establishment in UK or elsewhere outside India to receive services outside India? - Through whom did appellants maintain/operate the Escrow Account in London? - The Ld. Counsel could not give any convincing reply to these queries - for the ends of justice, the appellant should get an opportunity to discharge their burden of proof in fresh proceedings (Para 12).

Service Tax – Banking and Other Financial Services – Demand – the plea of the appellants is that the services provided by Service Provider do not fall within the scope of any of the various clauses of the definition of Banking and Other Financial Services under Section 65(12) of the Finance Act, 1994 – This aspect was also not examined by the Commissioner – Ordered for de novo adjudication of the case (Para 14).


M/s Santhi Arts Hi-Tech Medias Ltd Vs CCE (Dated : December 13, 2011)

Service Tax – Stay / Pre-deposit of Tax – Advertising Agency Service – There was no plea against conceptualisation, visualisation or creation of advertisement and only contention was that carrying out the instructions of clients – No prima facie case for the appellant - Ordered for pre-deposit of Rs.6 Lakhs (Para 5 & 6).


M/s CCL Products (India) Ltd Vs CCE & ST (Dated : May 18, 2012)

Service Tax – Penalty - Non-payment of Service Tax on amounts paid to Foreign Commission Agent – Service Tax and Interest amounts paid prior to passing of Order-In-Original – Adjudicating Authority imposed 25% of tax amount towards penalty Under Section 78 – Appellate Authority allowed the appeal of the Revenue and enhanced the penalty amount equal to service tax – Held that: Since the services were clearly input services for the appellant, the Appellant was eligible for credit of service tax if the same had been paid by them - As a 100% EOU, they are also eligible to get refund of Service Tax Credit under Rule 5 of the CENVAT Credit Rules, 2004 –Appellants claim for the revenue neutrality and consequently absence of intention to evade service tax is acceptable - There is no justification for imposition of penalty under Section 78 - As it is a clear case of revenue neutrality and a case where intention to evade service tax is absent, the penalty under Section 76 which is imposable deserves to be waived in the light of provisions of Section 80 of the Finance Act, 1994 (Para 4.1 & 4.2).


M/s Hindalco Industries Ltd Vs CCE (Dated : May 15, 2012)

Service Tax - Clearing and Forwarding Agents - Services received from abroad -Demand of service tax from the service receiver prior to amendment made on 10-09-2004 to Section 73 - Notice has been issued invoking Section 73 as it stood prior to the amendment on 10-09-2004 demanding duty for the period 16-11-97 to 02-06-98 from service receivers. Demand not sustainable. As a consequence revenue appeal for imposing penalty at 2% of the tax for every month instead of Rs. 200 per day is dismissed. (Para 15)


CCE Vs M/s Jubilant Organosys Ltd (Dated : February 24, 2012)

Service Tax – Goods Transport Agency Service – Demand of Interest – Initially paid Service Tax on GTA by utilizing the Credit earned on GTA and later paid in cash – T here was no need for the appellant to make any cash payment in view of the decisions of the Tribunal in the cases of Shri Tubes & Steels Pvt. Ltd. – (2011-TIOL-147-CESTAT-BANG) - When there is no liability to pay the principal itself, the question of demand of interest on the principal does not arise (Para 4).


M/s N S Construction Vs CCE (Dated : August 9, 2012)

ST - Maintenance and repair of public roads and Government buildings - in view of retrospective amendment made by the Finance Act, 2012 by way of insertion of sections 97 & 98 in FA, 1994, strong prima facie case for waiver of ST demand of Rs.73 lakhs - in respect of construction of building for Municipal Corporation out of which only a portion of 500 sq. Mtrs. is used as commercial area, demand raised for whole of contract under the category of ‘Construction of Commercial and Industrial buildings' - no case made for complete waiver - pre-deposit ordered: CESTAT [para 6]



Hindalco Industries Ltd Vs CCE (Dated : May 7, 2012)

Central Excise - CENVAT - Input Service - Insurance to power plant located outside factory - Undisputedly, the Power Plant belongs to the assessee and its captive production of power is used by the assessee. As the Power Plant is a captive power plant of the assessee's manufacturing unit, the two have to be treated as one

integrated unit and therefore, the cenvat credit of service tax paid on insurance policy for the power plant would be admissible. (Para 13)


Valco Industries Ltd Vs CCE (Dated : August 17, 2012)

CENVAT Credit - Input Services - Security services, services billed in a wrong name, Insurance of vehicles registered in personal name of Director, mobile phones used by Directors, club membership for Directors - level of nexus required in the case of input services is lower than that for inputs - Input services taken for furthering business prospects also is covered though such services may not be have direct nexus with manufacturing process - there has been failure on the part of the appellants in making clear submissions before lower authorities on facts and law on the impugned credits –in the larger interest of justice appellant given one more opportunity - matter remanded: CESTAT [para 15]


M/s Uflex Ltd Vs CCE (Dated : July 16, 2012)

Central Excise - CENVAT - Job-Work - Input Service and Inputs of Job-worker utilised on which credit availed - Goods cleared to principal without payment of duty -Recovery of credit taken - Stay / Dispensation of pre-deposit - The assessee appear to be eligible for cenvat credit of the service tax paid on the input service availed in or in relation to the manufacture of the polyester chips on job work basis, which had been cleared to the principal manufacturer without payment of duty under notification no.214/86-CE. Prima facie case made out for grant of stay. (Para 7)


M/s Aaradana Foods & Juices Pvt Ltd Vs CCE, CC & ST (Dated : March 14, 2012)

Service Tax – Stay / Pre-deposit - Sponsorship Service – It appears from the terms and conditions of agreement executed between the appellant and another company may not constitute any sponsorship service having been rendered by one party to the other - Prima facie the demand raised on the appellant is not in conformity with the definition of ‘Sponsorship Service' given under Section 65(105) (zzzn) of the Finance Act, 1994 (Para 1).


M/s A P Coal Washeries (P) Ltd Vs CCE (Dated : February 8, 2012)

Service Tax - Demand of Service Tax on excess yield of washed coal under Business Auxiliary Service - Limitation - The learned counsel has shown an audit report for the period prior to 1.4.2007 which indicates that the appellant was deducting the excess yield charges from the gross amount received for the purpose of payment of service tax and that this aspect was within the knowledge of the department - Prima facie, the material fact was gathered by the Department as early as in March, 2008 and therefore, the extended period of limitation could not have been invoked in the show-cause notice of 2010 (Para 3).

Service Tax - Stay / Pre-deposit - Denial of CENVAT Credit - CENVAT credit was not denied on the ground of inadmissibility but the same was denied on a procedural ground viz. that it was availed on the basis of debit notes issued by the Washeries -Invoices along with debit notes available - There is no other reason for denial of credit - Debit notes and Invoices contained all the requisite particulars in terms of Rule 4A of the Service Tax Rules, 1994 - Prima facie, the denial of CENVAT credit is not sustainable in law (Para 4).

Service Tax - Business Support Service - transportation of washed coal from the Washeries to the power stations - Power stations are engaged in the business of generating power from coal - It is difficult to believe that a service provided in relation to supply of the raw material (washed coal) to the power stations is not a service provided in relation to business or commerce of the power stations - Prima facie, the demand of service tax of on BSS cannot be successfully resisted by the appellant -Prima facie, the plea of limitation merits consideration ( Para 5).

Service Tax - GTA Service - Ld. Counsel submitted that the tax was paid in reverse charge mechanism by the appellant and they are entitled to take CENVAT credit of the same and therefore any intent to evade payment of service tax cannot be attributable to the appellant - If all the amounts coming within the normal period of limitation, in respect of which prima facie case has not been made out, are summed up, the appellant has to pre-deposit an amount of Rs.30 Lakhs (Para 6 & 8).


M/s 24/7 Customer Pvt Ltd Vs CST (Dated : December 16, 2011)

Service Tax - Stay/Pre-deposit - Refund - Refund of accumulated CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004 - Appellant had common registration for their units at Bangalore, Hyderabad and Chennai - Appellant started another unit at Gurgaon and sought for inclusion in the centralized registration and there was delay in giving centralized registration - During the revision proceedings, Commissioner has restricted the refund claim to only three units covered by the common registration and ordered recovery of refund already sanctioned relating to credit attributable to the Gurgaon unit - Held that : There is no dispute that the applicant had exported the services rendered from Gurgaon unit also and that the Bangalore unit was reportedly raising the invoices for export proceedings in respect of the BPO units, the denial of refund of credit in respect of the Gurgaon unit is not justified - Pre-deposit waived (Para 2 & 5).


M/s Aryan Coal Benefications Pvt Ltd Vs CST (Dated : August 9, 2012)

ST - activity undertaken by appellant of beneficiation/washing of raw coal at its coal washery is activity of mining which was introduced for the purpose of Service Tax with effect from 1.6.07 and hence prior to the said date no Service Tax was leviable on beneficiation under BAS - Activity of bringing coal to washery for undertaking the job of beneficiation is for oneself and not for any other person - said activity is so integrally connected with the activity of beneficiation of coal that the same cannot be segregated and it cannot be held that the same was a different and separate activity falling under the definition of cargo handling services – ST Demand of Rs.17.39 Crores set aside – appeals allowed with consequential relief: CESTAT [paras 3, 6, 7, 8 & 11]



M/s Sungwoo Gestamp Hitech (Chennai) Ltd Vs CCE (Dated : March 21, 2012)

Central Excise – CENVAT Credit on outdoor catering services – Following the ratio of the High Court in case of M/s Ultratech Cement Ltd, matter remanded to the original authority in view of the admitted fact that the appellants have been recovering the part of the amount from the workmen/staff.


M/s Shakumbari Sugar And Allied Industries Ltd Vs CCE (Dated : March 23, 2012)

Central Excise - MODVAT - Capital Goods - Support structures - For the period prior to 16.03.1995, supporting structures for machinery being covered by the term "plant", would be covered by the definition of "capital goods" and, hence, MS Angles, Channels, Sections etc. being components of such supporting structures would also be covered by the definition of "capital goods". (Para 9 , 10)


CCE Vs M/s KEC International Ltd (Dated : July 12, 2012)

Central Excise - CENVAT - Input Service - GTA Service - Inputs delivered directly to premises of job-worker - Transportation charges and service tax paid by Principal -The billets are admittedly the raw material for the assessee's final product. If the

billets are brought to the factory by the assessee and then sent to the job workers, there could be no dispute about the availability of credit of Service Tax paid on GTA services. Merely because to save transportation, the billets are directly offloaded in the factory of job workers, credit cannot be denied, especially when the freight as also Service Tax stand paid by the assessee/principal. As the billets are required to be converted into angles and/channels which are further converted into the final product, their transportation has to be held as an input service. (Para 7)


M/s Exhibition Movers Vs CCE (Dated : June 7, 2012)

Service Tax - Appeal - Limitation - Service of Order by Speed Post - Validity of - The order-in-original was sent by speed post and there is no evidence to show that the said order was received by the assessee. The date on which the order was delivered to the assessee's representative personally is the date of service of the order. (Para 7)


M/s Shri Dnyaneshwar Trust Vs CCE & CC (Dated : July 31, 2012)

ST - Appellant undertaking the activity of harvesting Sugarcane and transporting the same to sugar factory - commission received is exempted in terms of notfn. 13/2003-ST as amended since this service is in relation to agricultural produce - Pre-deposit waived and Stay granted: CESTAT [para 4]



Tata Consultancy Services Ltd Vs CCE & ST (Dated : May 29, 2012)

ST - Applicant has availed the service of technology transfer and software uses rights in 1996 – IPR Service came into tax net on 10.09.2004 and prior to this date no service tax can be demanded – prima facie applicant is not liable to pay ST on their activity under reverse charge mechanism – Pre-deposit waived and stay granted: CESTAT [para 4]


M/s Badve Helmets India Pvt Ltd Vs CCE (Dated : May 10, 2012)

Commissioner(A) while dealing with a stay application has to pass a speaking order –since order of pre-deposit is in violation of the principles of natural justice, the same cannot be sustained in the eyes of the law – matter remanded to Commr(A): CESTAT [paras 8 & 9]


Common Effluent Treatment Plant Vs CCE (Dated : August 30, 2012)

ST - Club or Association Services - Common Effluent Treatment Plant set up and charges collected from members in relation to common facilities set up for treatment and recycling effluent and solid waste - in view of retrospective exemption granted by Finance Act, 2012, pre-deposit of Rs.2.76 Crores demand waived and stay granted: CESTAT [paras 3 & 4]



M/s Dell International Services India Pvt Ltd Vs CCE (Dated : May 16, 2012)

Service Tax - Stay/Pre-deposit of Tax - Erection, Commissioning or Installation Service - Demand of Tax beyond 5 years period - Insofar as the demands of whatever nature raised for the period beyond 5 years are concerned the appellant has made out a strong prima facie case which has proved irresistible (Para 4).

Service Tax - Stay/Pre-deposit of Tax - Erection, Commissioning or Installation Service - Demand - prima facie, the appellant has no case for wavier of pre-deposit and stay of recovery in respect of the demand of an approximate amount of Rs.50 lakhs confirmed against them by the adjudicating authority for the period from October 2004 to March 2005 (Para 4).

Service Tax - CENVAT - Wrong availment of CENVAT Credit - a part of the demand is beyond five years - an amount of Rs. 39 lakhs remains unutilized in the CENVAT - No financial hardship - Ordered for pre-deposit of Rs.30 Lakhs (Para 4 & 5).


M/s Emerson Process Management Vs CCE (Dated : August 24, 2012)

Service Tax - Export of Services - Failure to provide Bank Realisation Certificate -Business Auxiliary Service - Demand - The service provider is now able to produce the bank realisation certificates. In the interests of justice, matter remanded to the lower authorities for deciding the issue afresh. (Para 5)


Shri Mehraj Khan Vs CCE (Dated : June 4, 2012)

Service Tax - Man Power recruitment Service Vis-à-vis Supply of Man Power prior to 01-05-06 - Services by Small units - Exemption - Penalty under Section 78 - For the period prior to 01.05.06 recruitment of personal was only taxable and not services in relation to supply of man power. The benefit of exemption notification No. 06/2006-ST is to be extended to the service provider. Penalty to be restricted to 25% as only the Commissioner (A) has for the first time in his order extended the benefit to the service provider. No other penalty is leviable . (Para 8)


M/s Mahindra & Mahindra Ltd Vs CCE (Dated : June 29, 2012)

Cenvat credit availed on services of security provided at club house/residential colony, civil work done at housing colony and telephones installed at residence of officers – in the case of ITC Ltd. 2011-TIOL-199-HC-AP-ST , AP High Court has treated the above services as input service whereas Bombay High Court in case of Manikgarh Cement (2010-TIOL-720-HC-Mum-ST) has denied the credit – as there are conflicting decisions, pre-deposit ordered of 25% of duty confirmed: CESTAT [para 5]


Skol Breweries Ltd Vs CCE & CC (Dated : May 29, 2012)

ST- Commissioner(A) forgetting the basic principles while deciding stay application –ordering for pre-deposit on the premise that the applicant had not pleaded any financial hardship and then dismissing their appeal for failure to comply with his order citing provisions of s.35F of CEA, 1944 r/w s.83 of FA, 1994 is not proper in the eyes of law – Matter remanded: CESTAT [paras 3 & 4]



Salva Chemicals Ltd Vs CCE (Dated : August 6, 2012)

Service Tax - Goods transport agency - Reverse charge mechanism - Demand of Service Tax on service receiver - Stay / Dispensation of pre-deposit - As per the provision of Section 66A of Finance Act, by virtue of reverse charge mechanism service receiver is liable to discharge the service tax liability. Prima facie no case made out by the service receiver for waiver of pre-deposit. Part pre-deposit ordered. (Para 4)


M/s Ashwin Engineering Vs CCE (Dated : July 31, 2012)

Service Tax – Commercial or Industrial Construction service – Both the lower authorities have not addressed the specific pleas raised by the appellants with regard to the benefit of exemption notification and the admissibility of CENVAT Credit –Matter remanded to the Adjudicating Authority.


M/s Tally (India) Pvt Ltd Vs CST (Dated : April 25, 2012)

Service Tax – Stay / Pre-deposit of Tax - Information Technology Software - Demand of service tax on certain 'Information Technology Software' imported by the appellant from a UAE-based company and sold in India - Prima facie, on a perusal of the relevant agreement between the appellant and the foreign company, no proprietary rights were transferred to the appellant - the Supreme Court's decision in Idea Mobile Communication Ltd. case (2011-TIOL-71-SC-ST) is to the effect that the mere payment of VAT on sale value would not per se preclude the Revenue from levy of service tax on the taxable service involved in the transaction - Prima facie, the appellant is liable to pay service tax on the service element of the transaction involving the software in India - Ordered for pre-deposit of Rs.18.55 Lakhs (Para 3 & 4).

Service Tax – Stay / Pre-deposit of Tax – Limitation - the findings recorded by the Commissioner in the context of dropping Section 78 penalty are in favour of the appellant also in the context of their challenge to the demand of service tax for the extended period - If the appellant did not have guilty mind for the purpose Section 78, they did not have it for the purpose of the proviso to Section 73 (1) of the Act as well (Para 3).


M/s The Academy Of General Education Vs CCE (Dated : November 1, 2011)

Service Tax – Stay / Pre-deposit of Tax - Commercial Training or Coaching Service -Though they have claimed to have issued certificates, diplomas etc. recognized by law, there is no evidence on record to substantiate claim - prima facie, the appellant cannot claim the benefit of the Circular dated 20.06.2003 – Ordered for pre-deposit of Rs.5 lakhs (Para 3).


M/s TUV Rhineland India (P) Ltd Vs CST (Dated : May 29, 2012)

Service Tax – Stay / Pre-deposit of Service Tax - Technical Testing and Certification Services – Limitation - The department had gathered the material facts from the appellant through audits conducted in 2006 and therefore the appellant cannot be held to have suppressed such facts from 2006 onwards - The demand for the period from the date of final audit report (May 2006) may not be sustainable in the absence of suppression of facts from that date - no prima facie case on merits for the appellant for the normal period of limitation – Ordered for pre-deposit of Rs.26 Lakhs (Para 1 & 2).


Sahakar Maharshi Shankarrao Mohite Patil SSK Ltd Vs CCE (Dated : July 24, 2012)

ST - Bullock-carts prima facie cannot be considered as machinery, equipment or appliances, hence, giving on hire bullock-carts cannot be considered as “supply of tangible goods for use” – Stay petition allowed and matter remanded as Commr(A) had not decided the appeal on merits: CESTAT [paras 6 & 8]



M/s South Eastern Coalfields Ltd Vs CCE (Dated : June 7, 2012)

Service Tax - Goods transport operators - Reverse Charge mechanism - Payment of Tax by service receiver for the period 16-11-97 to 02-06-98 - Demand under Section 73 - Notice has been issued invoking Section 73 as it stood prior to the amendment on 10-09-2004 demanding duty for the period 16-11-97 to 02-06-98 from service receivers. Demand not sustainable. (Para 15)


M/s Pepsico India Holdings Pvt Ltd Vs CCE, CC & ST (Dated :December 21, 2011)

Service Tax – Stay/Pre-deposit of Tax – Demand - There is a clear finding recorded by the Commissioner (Appeals) that no conclusive proof of centralized registration at Chennai or Coimbatore including therein the Pallakad unit was produced by the appellants and no proof of discharge of service tax liability in respect of that unit -Even in the present appeal also, there is no categorical submission on the point as well any clear proof of centralized registration claimed by the assessee - Ordered for pre-deposit of Rs.10 Lakhs (Para 3 & 4).


Societe Generale Global Solutions Centre Pvt Ltd Vs CST (Dated : November 3, 2011)

Service Tax – Stay / Pre-deposit of Tax – Refund – Information Technology and Software Services - Refund of accumulated CENVAT Credit - Commissioner, in his Order-in-Revision held that management consultant services and maintenance or repair services are not input services and accordingly ordered recovery of the refund sanctioned by the original authority – The plea of the appellants is that the maintenance of DG sets is essentially and integrally connected to rendering the business and no export of service can take place if there is no uninterrupted power supply and that the management consultant service was utilized for rendering the business with efficiency and it was prerequisite to render the business efficiently especially to cater to the export market - Held that : prima facie , the contentions raised by the appellants that the impugned services could be treated as 'input services' in respect of services rendered by the appellant appears to be legal – Pre-deposit waived (Para 5).


M/s Agility Logistics Pvt Ltd Vs CST (Dated : September 6, 2012)

ST - Adjudicating authority has only collected the figures from the balance sheet where an amount has been shown as income and calculated the Service Tax liability by classifying the same under BAS/CHA services – appellant submits that the original authority has included the amount of Customs duty collected and paid by them, as services rendered under Business Auxiliary Service and CHA services for the material period; that ocean freight which is exempted from ST is also included in the demand –appellant has failed to extend adequate assistance to the adjudicating authority in giving the entire submissions in proper format - Matter remanded without expressing any opinion on merits: CESTAT. [paras 7 & 8]


M/s Amanulla Khan's Sons Vs CCE (Dated : December 14, 2011)

Service Tax - Stay/Pre-deposit of Tax – Pandal or Shamiana Contractor Services - the claim of the appellant for classifying their activity under the head "Erection, Commissioning or Installation Services" is prima facie untenable - It is not in dispute that the structures erected by them to enable their clients to conduct short term functions like trade fair, exhibition etc. were of temporary nature - Those structures were erected out of their own materials and the same were dismantled as soon as the functions were over - The word "commissioning" or the word "installation", prime facie, does not fit in the activity undertaken by the appellant – the appellant has not made out prima facie case against the impugned demand of service tax (Para 3).

Service Tax - Stay/Pre-deposit of Tax – Pandal or Shamiana Contractor Services –Limitation - It is not the case of the appellant that they disclosed the relevant materials to the department voluntarily before the department's auditors visited them - Even the disclosure which is claimed to have been made by the appellant took place as late as in April 2006 towards the fag end of the period of demand -. Prima facie, the allegation raised by the department in the show-cause notice that the relevant facts were suppressed with intent to evade service tax which was leviable under the head "Pandal or Shamiana Contractor's services" is tenable – Ordered for Pre-deposit of Rs. 25 Lakhs (Para 3 & 4).


M/s Nadeem Minerals Vs CCE (Dated : February 24, 2012)

Service Tax - Refund / Rebate - Refund of Service Tax paid on GTA Services availed for export of Iron Ore - The rebate claim has been correctly rejected on the ground that the procedure as set out under Notification No. 21/2004 has not been followed -In any case, according to Section 35B of Central Excise Act 1944 in respect of rebate claims, the Tribunal has no jurisdiction and the appeal has to be filed before Government of India (Para 5).


M/s Hindustan Coca Cola Beverages Pvt Ltd Vs CCE (Dated : May 15, 2012)

Service Tax - CENVAT - Goods Transport Agencies - Reverse Charge Mechanism -Service Tax paid from CENVAT account - Service Tax Paid in cash at later date -Interest - Interest is payable when a tax due was not paid in time. Payment made initially through Cenvat credit was a good discharge of the tax liability and hence there cannot be a demand for interest . (Para 3 & 5)


M/s GHCL Ltd Vs CCE (Dated : August 9, 2012)

Credit of Service Tax of Rs.8.62 crores denied on the ground that tax-paying documents were having discrepancies – instead of giving a blanket finding that these errors cannot be condoned, adjudicating authority ought to have addressed these technical lapses individually – application of rule 9(2) of the CCR, 2004 should be done in an objective manner – without expressing any opinion on merits, matter remanded to adjudicating authority – Appeal allowed by way of remand: CESTAT [paras 6 & 7]


M/s Quality Services Vs CCE (Dated : August 6, 2012)

ST – Cargo Handling Service – appellant providing the following services to milk dairy viz. unloading of plastic crates from containers, giving manual help for filling the milk pouches, shifting of pouches to cold storage and loading milk pouches into motor vehicle for further transportation – prima facie it appears that loading of milk pouches from the cold storage into the crates and loading on the trucks for further onward dispatches may be covered under the category of cargo handling services – pre-deposit ordered of Rs.1 lakhs for obtaining stay: CESTAT [para 6]


CCE Vs Mayor (Dated : May 17, 2012)

Service Tax - CENVAT - Reverse Charge Mechanism - Services received from overseas service provider - Liability prior to 18-04-06 - Service tax liability on any taxable service provided by a non-resident or a person located outside India to a recipient in India would arise w.e.f. 18.04.06, i.e., enactment of section 76 of Finance Act, 1994 . (Para 3)


M/s Mahalaxmi Engineering Co Vs CCE (Dated : August 9, 2012)

Service Tax - CENVAT - Credit of duty paid on dumpers, tippers, trucks etc. - Mining Services - Principles of natural justice - The adjudicating authority should not have relied upon the report of jurisdictional Superintendent to record a finding against the assessee without providing a copy of said report to them and giving them an effective opportunity to challenge and defend their case against such report. Matter remanded

for deciding the matter afresh by following the principles of natural justice. (Para 6 & 7)


M/s Kamlesh Labour Contractor Vs CCE (Dated : March 7, 2012)

ST - Manpower Recruitment and Supply Agency Services - Appellant helping unemployed youth in Nashik for finding employment and is not responsible for any act of these labourers – labourers are not on the payroll of the appellant – work of plumbing, housekeeping, sanitation, general maintenance carried out on contract basis as per agreement - since this legal point was not raised before the lower authorities but only before the Tribunal, matter remanded: CESTAT [para6]


M/s Eastern Coalfields Ltd Vs CCE & ST (Dated : September 3, 2012)

ST - Notfn. 32/2004-ST & 1/2006-ST - In absence of any particular format prescribed under the respective notifications, the department insisting for declaration on each consignment note for allowing the abatement under the said Notifications is un-sustainable in law - Demand of Rs.10.88 crores set aside and appeals allowed: CESTAT [paras 5 & 6]



M/s Khandelwal Construction Co Vs Commissioner (Appeals) Jaipur (Dated : August 29, 2012)

Service Tax – Condonation of delay – Sufficient cause - Delays, especially huge, are required to be condoned on the basis of sufficient reasons and by taking into account the conduct of the parties - The sufficient cause for condoning delays should be the one which pursue the Court in exercise of its judicial discretion, to treat the delay as excusable one, while ensuring that the purpose of law of limitation does not get frustrated – Delay in filing appeal has occurred not on account of any substantial and sufficient reasons but on account of negligence of the appellant - If such delays are condoned, the meaning of limitation of three months provided by legislature in the Central Excise Act would become meaningless and redundant – COD application rejected.


M/s Bharat Sanchar Nigam Ltd Vs CC & CE (Dated : September 3, 2012)

Service Tax - Condonation of delay in filing the appeal before the Tribunal - Delay of 388 days - Sufficient cause - The sufficient cause for condoning delays should be the one which pursue the Court in exercise of its judicial discretion, to treat the delay as excusable one, while ensuring that the purpose of law of limitation does not get frustrated - Delay in filing appeal has occurred not on account of any substantial and sufficient reasons but on account of negligence of the appellant - If such delays are condoned, the meaning of limitation of three months provided by legislature in the Central Excise Act would become meaningless and redundant - COD application rejected.


M/s Datamini Technologies (India) Ltd Vs CCE (Dated : June 20, 2012)

Appellants engaged in brand promotion of ‘INTEL' and ‘MICROSOFT' for which commercial considerations were being paid by both the brand owners periodically –Member(T) concluding that it is promotion of ‘branded goods' hence taxable under BAS from 01.07.2003 whereas Member(J) holding that it is promotion of ‘brand' and not taxable in view of decision in Jetlite (India) Ltd. (2010-TIOL-1715-CESTAT-DEL) -Difference of Opinion – Matter referred to third Member: CESTAT



Shri Kanaiyalal Pokhraj Kalal Vs CST (Dated : August 28, 2012)

Service Tax – Rent-a-cab service - In the absence of any contrary evidence produced by the Revenue that the vehicle used was not a goods transport vehicle, relying upon the affidavit filed by the appellant to state that the said vehicle was a goods vehicle, demand of service tax set aside.


M/s Shree Saibaba Petroleum Vs CST (Dated : August 9, 2012)

ST - Mismatch of the value on which ST liability was discharged and the income shownin balance sheet - if a show cause notice demands the service tax liability for the

period 2004-05 to 2008-09, the entire amount paid by the appellant as service tax liability during the relevant period,, evidenced by way of TR-6 challan, needs to be considered in a holistic manner, for arriving at service tax liability – without expressing any opinion on merits, matter remanded: CESTAT [paras 7 & 8]


CCE Vs M/s Navabharat Ventures Ltd (Dated : April 20, 2012)

Central Excise – CENVAT credit - Input service - Services of repair, maintenance and civil construction used in residential colony – The repairs/maintenance service received by the respondent in respect of the residential buildings situated far away from their factory did not have the requisite nexus to their manufacturing activity and hence not covered by the definition of input service under Rule 2(l) of the CENVAT Credit Rules, 2004 – Followed the decision of High Court of Bombay in the case of Manikgarh Cement - (2010-TIOL-720-HC-MUM-ST) Impugned order set aside (Para 2).


M/s Hindustan Zinc Ltd Vs CCE (Dated : May 8, 2012)

CENVAT - Service tax paid on the charges for transportation of children to school and tuition centres - prima facie not an Input Service - Pre-deposit ordered: CESTAT [para 6]

Service Tax paid in respect of service of hiring of buses for transportation of employees from their homes to factory and back and hiring of ambulance for transportation of injured employees for their treatment is admissible as the same is an Input Service: CESTAT [para 6]



Roha Dyechem Pvt Ltd Vs CCE (Dated : July 4, 2012)

Testing, inspection and certifications services availed by applicant from Foods & Drugs Administration of US of A (US FDA) – ST under reverse charge mechanism – all services have been availed outside India and performed outside India, therefore, they are not liable to pay ST – Pre-deposit waived and stay granted: CESTAT [para 5]

Exhibition service – activity of hiring of premises outside India and arranging/coordinating installation of stalls outside India is not liable for ST – Board

Circular 354/11/2011-TRU dated 22.03.2011 relied upon: Pre-deposit waived and stay granted: CESATT [para 5]


M/s Hindustan Aeronautics Ltd Vs CCE, CC & ST (Dated : August 1, 2012)

Service Tax - Valuation - Maintenance or Repair Service - The service provider claims deduction of the values of the cost of material, packing and forwarding expenses. As this matter was not put forth before the original adjudication authority, the matter is remanded for fresh decision. (Para 4)


M/s Gujarat Gas Company Ltd Vs CST (Dated : August 23, 2012)

Service Tax - CENVAT - Input Service - Transportation of natural gas - Stay / Dispensation of pre-deposit - Cenvat credit denied on the ground that the service tax paid by the Gas Authority of India Limited on transportation of natural gas to the assessee's premises is not in relation to an output service provided by them.

HELD - If the assessee does not receive natural gas from GAIL, he cannot provide any output service or cannot discharge the excise duty on the compression activity undertaken by them. Prima facie case made out for grant of stay. (Para 5)


M/s Labdhi Stock And Derivatives Services Pvt Ltd Vs CST (Dated : August 28, 2012)

ST on NSE/BSE transaction charges and Demat charges - Board's Circular No. B-11/2000-TRU, dt. 09.07.01, lays down that service tax will not be leviable on the NSDL or CDSL fee paid to the depositors and recovered from the customers on actual basis – Tribunal decisions in M/s. Anagram Capital Limited (2009-TIOL-1018-CESTAT-AHM) and M/s. Saurin Investments Pvt. Ltd. ( 2009-TIOL-1322-CESTAT-AHM ) prima facie cover the issue on hand – application for waiver of pre-deposit allowed and recovery stayed: CESTAT.


M/s H D Enterprises Vs CCE (Dated : July 26, 2012)

Service Tax - Principles of natural justice - Adjudicating authority called for a report from the jurisdictional Superintendent after personal hearing and recorded a finding against the assessee - Copy of the said report was not supplied to the assessee -There is gross violation of principles of natural justice - Matter remanded with a direction to supply copy of the said report to the appellants.


CST Vs M/s Devansh Exports (Dated : July 11, 2012)

Service Tax - Power to Remand - Commissioner (Appeals) - In case of service tax also the Commissioner (A) is not empowered to remand the matter, he has to decide the matter by himself. However, in the instant case the matter is required to be re-examined by the lower adjudicating authority. Hence, the matter is remanded to the lower adjudicating authority for deciding the issue afresh. (Para 5)



M/s Orbital Infrastructure Consultancy And Research P Ltd Vs CCE, CC & ST (Dated : July 9, 2012)

Service Tax - Scientific and Technical Consultancy Service - Technical Testing and Analysis Services - Demand - Revision Order - Stay / Dispensation of pre-deposit -The Adjudicating Authority after a detailed analysis of the evidences came to a categorical finding that the services rendered by the assessee was not under the category of 'Scientific and Technical Consultancy Service', but under the category of 'Technical Testing and Analysis Service' and accordingly confirmed the demand. The income on account of 'Soil Exploration Service', was held to be not taxable. The Commissioner in the Revision Order has not recorded any reason for coming to a conclusion different from the order of the original adjudicating authority. Prima facie case made out for grant of stay. (Para 5)


M/s Ratnam Stone Export Vs CCE (Dated : August 24, 2012)

Service Tax - Refund - Services utilised for the export of goods - The matter is remanded to the original authority to consider all the documents produced by the assessee in support of the refund claim and pass orders afresh following the principles of natural justice. (Para 5)


M/s Asianet Satellite Communications Ltd Vs CCE (Dated : December 22, 2011)

Service Tax – Stay/Pre-deposit of Tax - The applicant is a provider of Cable Operator Service, Broadcasting Services, Online Information and Data base Access Retrieval Service, Multi System Operator Service – Demand of Service Tax based on turnover figures mentioned in the balance sheets and also proposing denial of CENVAT credit on inputs/input services – Commissioner disallowed the entire credit of about Rs.5.59 Crores - It cannot be the case that appellant has rendered several taxable services and that there is a demand of about Rs.10 Crores and that no input services at all have been used by them - Apparently, either due to non-production of duty paying documents or due to non-effort by the verifying authorities, the total claim for CENVAT credit stands denied - the appellant contested the demands on various grounds, but they have not given specific amounts covered against each of the ground - Even in the appeal memorandum, no such specific details have been furnished -Examination of appellants claim requires to be done in detail at the time of final hearing - Ordered for pre-deposit of Rs.1 Crore apart from an amount of Rs.50 Lakhs already paid (Para 6, 7 & 8).


Manikgarh Cement Vs CCE & CC, Nagpur (Dated : March 21, 2012)

Cenvat Credit – Service Tax paid on insurance in respect of vehicles owned and used by the appellant is an Input Service as defined in rule 2(l) of the CCR, 2004 – Appeal allowed with consequential relief: CESTAT [paras 7 & 8]


Neeta Tours & Travels Vs CST (Dated : July 2, 2012)

Tour operators Service – notfn. 20/2009-ST - ST on charges collected for point to point bus service for the period 01.04.2007 to 05.07.2009 has been exempted retrospectively vide section 75 of the Finance Act, 2011 - prima facie applicants are not liable to pay ST - pre-deposit of Rs.4.43 crores waived & Stay granted: CESTAT [para 6]


M/s Central Bank Of India Vs CCE & ST (Dated : August 13, 2012)

Service Tax - No Time Limit for taking CENVAT Credit: Nowhere in the Central Excise Act as well as in the CENVAT Credit Rules prescribed any period in which credit has to be taken. Although it is mentioned in the CENVAT Credit Rules that assessee can take the credit immediately, but there is no prescribed time limit either in the CENVAT Credit Rules or in the Central Excise Act. The observation made by both the lower authorities that credit is to be taken within a period of one year is totally incorrect and unacceptable.



Sanco Trans Ltd Vs CST (Dated : March 22, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Maintenance or repair service - The applicants provided service under a contract/agreement with the customers and received consideration for repair and maintenance of containers – No prima facie case has been made out for waiver of pre-deposit.


Jyoti Structures Ltd Vs CCE (Dated : May 21, 2012)

Appellant are manufacturer of transmission towers and also providing services of erection, commissioning & installation, management, maintenance or repair, testing, inspection of towers etc. – cenvat credit availed on inputs, capital goods and input services for conducting the above activity of manufacturing and service - credit deniedon input/input services availed for providing output services on the ground that no separate account is maintained – there is no provision in CCR, 2004 for segregation of input services utilized in manufacture or to provide output service – appeal allowed: CESTAT [para 6]


Mahanagar Gas Ltd Vs CCE (Dated : April 17, 2012)

Cenvat credit of ST paid in respect of services of laying pipeline through which applicant receives natural gas – credit denied on the ground that the pipeline is outside the factory – as per definition of input services, ST paid in respect of inward transportation of inputs is available – prima facie applicants have a strong case – pre-deposit waived and stay granted: CESTAT [para 5]


M/s Khushi Labour Suppliers Vs CCE (Dated : September 3, 2012)

Service Tax - Manpower supply service - Appellants admit liability on Manpower supply service and disputes liability on other services - Appellant did not file any reply before the Adjudicating Authority and claims ignorance of law which cannot be accepted - However, another chance is given to the appellant to present their case before the lower authority on payment of pre-deposit of Rs 30 lakhs in addition to the

Rs 50 lakhs already paid.


M/s Akanksha Overseas Vs CST (Dated : August 31, 2012)

Notfn. 41/2007-ST - service tax paid on THC, DOC charges, Haulage charges under the Port services, Courier charges, CHA services, banking and financial services are eligible for refund – non-mention of cross references on invoices is a curable defect and which has since been cured – refund claim not deniable – order of Commr(A) set aside and appeals allowed with consequential relief: CESTAT [paras 5, 7, 8 & 9]


M/s Adani Agro Pvt Ltd Vs CCE (Dated : August 9, 2012)

Service Tax - Business Auxiliary Service - Limitation - Appellant has been consistently taking the plea that the demand is time barred - Neither the Adjudicating Authority not the Appellate Authority recorded any findings on the plea of limitation - Matter remanded to the Adjudicating Authority to reconsider the issue.


M/s Tata Steel Ltd Vs CCE & ST, Jamshedpur (Dated : July 26, 2012)

ST – Consulting Engineer Service – appellant receiving services from companies located outside India - even if in the agreement between the service provider and the service recipient, the service recipient undertakes to pay the tax, the service recipient is not liable or made liable to pay the same prior to 18th April, 2006 – appeals allowed: CESTAT [paras 6, 6.1 & 6.2]



M/s Madras Cements Ltd Vs CCE (Dated : May 29, 2012)

GTA service used for transportation of final product from place of removal is available for the period up to 31.03.2008 - after amendment w.e.f 01.04.2008 the expression "up to the place of removal" has a clear and absolute meaning beyond pale of doubt -final product cleared from the place of removal (whether it be factory or depot) by the appellant by making use of GTA service - such service is not coming within the ambit of the definition of 'input service' - CENVAT credit not available - matter remanded for re-quantification: CESTAT [paras 4, 6 & 7]


M/s Dell India Pvt Ltd Vs CCE & CC (Dated: January 31, 2012)

Service Tax – Stay/Pre-deposit of Tax – Denial of CENVAT Credit – Denial of CENVAT Credit on Input services used in trading activity – the matter is required to be considered in detail as to which of the services can be considered as having been exclusively used for either taxable service or trading and which are common - the trading activity contributes more than 90% of the turnover and even if it is accepted that all the services are common, excepting erection, commissioning or installation services and management, maintenance or repair services as input services, the amount payable by the appellants towards ineligible CENVAT credit would come to a substantial portion of the amount demanded - Ordered for pre-deposit of Rs.4 Crores (Para 4 & 6).

Service Tax – Stay / Pre-deposit of Tax – Denial of CENVAT Credit – Limitation - the fact remains that the appellants had not submitted the details of various services which is not required to be submitted in their returns - mere submissions of returns to the department would not mean that suppression of fact cannot be invoked -Assessee is expected to assess the service tax himself and pay the same and therefore correct availment of CENVAT credit is also the responsibility of an assessee -the department came to know about the availment of CENVAT credit and utilization only when the appellants submitted a rebate claim prima facie appears to show that extended period can be invokable in this case (Para 5).


M/s Bayer Bioscience Pvt Ltd Vs CCE (Dated: May 1, 2012)

Service Tax – Stay/Pre-deposit of Tax – Scientific and Technical Consultancy Services - The Appellant is engaged in the Breeding and Development of the crop seeds received from the German Company and supplying the results to the said company, for which receiving consideration in foreign currency - Prima facie, the activity involves export of services and the appellant was not liable to pay service tax by virtue of the exemption available to export of services under the Export of Service Rules 2005 – Pre-deposit waived (Para 3).


Maharashtra Industrial Development, Corporation Vs CCE (Dated: July 12, 2012)

ST - Maharashtra Industrial Development Corporation is a public authority and the activities performed by them are not taxable under the Finance Act, 1994 – Prima facie strong case in favour – Pre-deposit waived and Stay granted: CESTAT [para 5]



M/s Kuttukaran Trading Ventures Vs CCE, CC & ST (Dated: April 30, 2012)

Service Tax – Demand – ‘Maintenance or Repair Service' – Demand of Service Tax on services provided to customers for reconditioning/repairs of vehicle engines and other parts from 2005-06 onwards - The services provided by the appellant to authorised service stations and workshops during the period of dispute are classifiable as ‘M aintenance or Repair Service' up to 30.4.2006 and "Management, Maintenance or Repair Service" from 1.5.2006 - Appellant is liable to pay service tax on these services - But the appellants are not liable to pay Service Tax on maintenance or repair of motor vehicles directly brought to them by the vehicle owners as this activity is covered by the exclusion clause incorporated in the definitions of "Maintenance or Repair" and "Management, Maintenance or Repair Service" – Matter remanded to original authority for quantification of tax demand (Para 12, 13 & 14).

Service Tax – Limitation - It is not in dispute that the activity of rebuilding, reconditioning, restoration and servicing of IC engines and other parts (of motor vehicles), received from authorised service stations and workshops were not disclosed by the appellant in their ST-3 returns - On these facts, it appears that there was suppression of relevant information by the appellant with intent to evade payment of service tax - the invocation of extended period of limitation requires to be upheld (Para 15).


M/s Ganga Constructions Vs CCE & CC (Dated: May 22, 2012)

Service Tax – Stay/Pre-deposit of Tax - Commercial or Industrial Construction Services - Appellants are undertaking the activities of Trenching and Pipe laying work for BSNL - In respect of identical activities Commissioner (Appeals) has granted relief to seven parties - In the present case the original authority also dropped the proceedings - It is appropriate to waive pre-deposit (Para 5).


Bank Of India Vs CST (Dated: July 4, 2012)

Service Tax - CENVAT - Input Service - Input Service Distributor - Documentary evidence - Service provider now claims that they have relevant documents to show that the credit has been properly availed. On perusal of records there is some admitted liability. Matter remanded to the original authority for examining the records and passing orders afresh. Service provider directed to pre-deposit the admitted liability and additional sum as a pre-condition for hearing and decision by the adjudicating authority.(Para 7)


Vfs Global Services Pvt Ltd Vs CST (Dated: July 4, 2012)

ST - Service provided by a visa facilitator in the form of assistance to individuals directly, to obtain a visa, does not fall under any of the taxable services under section 65(105) of the Finance Act, 1994 -Demand of ST under the category of BAS set aside & Appeal allowed: CESTAT [paras 7 & 9]



Air India Limited Vs CST (Dated: August 2, 2012)

Notice issued to the applicants at the address mentioned in Col. 6 of Form ST-5 was received back with postal remark ‘incomplete address' – no request for adjournment –Stay application dismissed – applicant directed to deposit the adjudged dues to obtain stay: CESTAT.


CCE Vs S S Engineers & Contractors (Dated: June 7, 2012)

ST - Royalties received on account of goodwill – revenue alleging that the income received is only towards commission – by no stretch of imagination payment of goodwill on transfer of business can come under the category of business auxiliary service – no merit in Revenue appeal – same is dismissed: CESTAT [para 7


M/s Lacto Cosmetics (Vapi) Pvt Ltd Vs CCE (Dated: September 7, 2012)

Service Tax – CENVAT Credit – Service providers who supplied services to the appellants did not pay service tax to the department, though on the invoices issued, service tax was charged - The appellants were aware of the disappearance of the service provider after January 07, but they did not make any effort to find out even at that stage as to whether the service providers were in existence and whether they had paid service tax collected from them to the government – Appellants did not even bother to verify whether the office premises in the invoice was in existence or not –Denial of credit under extended period upheld.

Reversal of CENVAT Credit due to manufacture of both exempted and dutiable goods -The principle of self assessment and submission of only the results of self assessment in the form of return would show that it is the responsibility of the assessee to assess

the goods correctly and pay the taxes correctly - In this case it cannot be said that assessee was not aware that for trading activity credit is not admissible - Once the assessee is considered to be aware of statutory provisions relating to availment of credit and his activities, the normal conclusion of a ordinary prudent person is that the assessee had deliberately avoided reversing the credit attributable to trading activity and thereby suppressing/ mis -declaring the fact of availment of credit to the department – Demand of credit with interest and penalty upheld.

Personal penalty on the productions officer – He was an employee and it cannot be said that he derived any extra benefit because of the lapses it has not been shown that there was any motive on his part – Penalty set aside.


M/s KIOCL Ltd Vs CCE, Bangalore (Dated: May 31, 2012)

Service Tax – Stay / Pre-deposit of Tax – ‘Business Auxiliary Service'- Demand of Service Tax on reverse charge mechanism - As regards the demand of service tax for the period prior to 18.04.2006, the issue stands settled in favour of the appellant by numerous decisions - T he Board's Circular dated 26.09.2011 was not considered by the Commissioner while passing the impugned order dated 07.10.2011 – There are no findings on the plea of assessee regarding certain transactions with foreign companies for the period after April, 2006 - the question whether the appellant is liable to pay service tax on the amounts paid by them to the foreign companies from 18/04/2006 and other issues associated need to be remanded to the adjudicating authority (Para 4)


Shri Irfankhan M Pathan Vs CCE (Dated : August 28, 2012)

ST - Demand of "Business Support Service" on the ground that appellants wear the team clothing which bear the brand/marks of various sponsors and they are also required to participate in promotional/public events of the franchisee - Pre-deposit ordered for obtaining stay: CESTAT [para 8]

Service tax was demanded from the franchisees in respect of fee paid to foreign players by invoking reverse charge mechanism for recovering the service tax since the players involved were foreigners - Under these circumstances the decisions in M/s. KPH Dream Cricket Pvt. Ltd. - 2012-TIOL-51-CESTAT-DEL and M/s. Royal Challengers Sports Pvt. Ltd. 2012-TIOL-712-CESTAT-BANG are prima-facie applicable to the present case - appellants may have a case on limitation, we consider it appropriate that the amount within the normal period of limitation can be considered for the purpose of pre-deposit - total amount that may be within the normal period of limitation would be around Rs.38 lakhs in the case of Shri Irfankhan M. Pathan and about Rs.17 lakhs in the case of Shri Yusufkhan M. Pathan - appellants directed to make pre-deposit about 20% of the liability within the normal period - Rs.7.5 Lakh in the case of Shri Irfankhan M. Pathan and Rs.3.5 lakh in the case of Shri Yusufkhan M. Pathan for obtaining stay. [paras 6, 7 & 8]



Smt K D Chaudhary Vs CST (Dated : September 3, 2012)

Service Tax - Renting of immovable property service - Small scale exemption under Notification No 6/2005 ST dated 01.03.2005 - The appellants are individuals who are the co-owners of the property rented out - Prima facie, individually, amount received by each of the appellant did not cross threshold limit - Pima facie case made out for waiver of pre-deposit.


Jolly Board Ltd Vs CC & CE (Dated : June 8, 2012)

ST Refund – Notfn. 17/2009-ST - Supplier discharging service tax liability on ‘documentation charges' under the category of ‘Clearing & Forwarding Agency service' – officers in-charge of appellant's factory (recipient of service) have no jurisdiction to deny the refund claim on the ground that the ‘documentation charges' are not covered under “C&F Agency service” – Appeal allowed with consequential relief: CESTAT [paras 5.1 & 6]



M/s Bharat Sanchar Nigam Ltd Vs CCE (Dated : April 30, 2012)

Service Tax - CENVAT - Credit availed based on Advice Transfer Debit - Taxable and Exempted output Service - Extent of utilisation of Credit - Leased Circuit Service -Stay / Dispensation of pre-deposit - On the issue of credit availed based on Advice Transfer Debit, which is contended to be a document which is not prescribed under Rule 9, it is seen that stay has been granted earlier on the same matter. In the case of utilisation of credit in excess of 20% of the taxable value also there are precedent decisions granting stay. In the case of leased circuit services also it is prima facie clear that the definition existing before 1.6.2007 could not have covered the said service. Pre-deposit waived. Stay granted. (Para 4)


Bazpur Co-Operative Sugar Factory Ltd Vs CCE (Dated : April 16, 2012)

Service Tax - Goods Transport Agency - Demand - Stay / Dispensation of pre-deposit - The intention of legislature is not to levy service tax on individual truck owners

except in cases where the cargo for such trucks are booked by "Goods Transport Agency" which is in the business of booking cargo and issuing the consignment note in the normal course of their business. In the instant case, the sugarcane which is collected at the collection centres, are transported by truck owners who were mostly individual firms and there is no need for any consignment note for despatching the same. Prima facie case made out for grant of stay. (Para 6)


M/s Tata Bluescope Steel Ltd Vs CCE (Dated : June 26, 2012)

Central Excise - CENVAT - Input Service - House Keeping Service, out-door catering service, design service, gardening service etc. - Stay / Dispensation of pre-deposit -Under the provisions of Section 11 of the Factories Act a manufacturer is required to maintain the factory neat and clean. House keeping Services would be covered by the definition of input service. It is a settled issue that rent a cab service and outdoor catering service are input service and cenvat credit would be admissible. The design and advertising service are also covered by the definition of 'Input Service'. The assessee has a strong prima-facie case and hence pre-deposit of cenvat credit demand, interest and penalty is waived and recovery thereof stayed till the disposal of the appeals. (Para 5)


Mercedes-Benz Research And Development India Pvt Ltd Vs CST (Dated : May 22, 2012)

Service Tax – Stay/Pre-deposit of Tax – Refund – Refund of accumulated CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004 – Nexus between input services and export services – Ld. Commissioner did not find any nexus between the Technical Consultancy availed by the assessee and "IT Software Services" exported by them to the foreign manufacturer of cars and trucks - The finding recorded by the Commissioner is to the effect that the said services were used by the Engineering Service Department of the assessee and were pertaining to "FE Modeling Services" -For a claim of refund under Rule 5 ibid, the assessee has to establish a nexus between 'input services' and the 'output services' exported by them - This nexus is not prima facie forthcoming – Ordered for Pre-deposit of Rs.15 Lakhs (Para 5).


M/s Scott Wilson Kirkpatrick India Pvt Ltd Vs CCE (Dated : June 4, 2012)

ST - Taxability of reimbursable expenses on travel local accommodation, etc. incurred by a Consulting Engineer has been under dispute from the early stage from which said service was made taxable - action of the appellant in not including the same in gross value is bonafide - impression of the appellants was backed by instructions from CBEC - suppression cannot be alleged for invoking extended period – Appeal allowed: CESTAT [paras 9 & 10]



M/s Birla Cellulosics Vs CCE (Dated : July 4, 2012)

Service Tax - Exemption Notification - Goods Transport Agency - Declaration on consignment Note - Non-availment of CENVAT credit - Once the declaration has been filed by GTA on their letter-head as regards non-availment of CENVAT Credit, the benefit of Notification No.12/2003-ST should not be denied. (Para 5)


M/s Nirav Travels Vs CCE (Dated : October 11, 2011)

Service Tax – Business Auxiliary Service - Commissioner (Appeals) rejected the appeal on the ground that all submissions made by the appellant cannot be admitted because no evidence was produced before adjudicating authority – Issued show cause notice based on Profit & Loss Account even without giving an opportunity to explain the situation by the appellant - the matter should have been investigated and records called for because the law requires that correct amount of service tax liability is required to be worked out before issue of Show Cause Notice - appellant is a proprietary firm and not well versed with service tax provisions - Having regard to the facts that the appellant had taken registration in May 2004 and the fact that it did not own any vehicle in 2004-2005, there is a possibility that he could have entertained a bonafide belief about the liability of service tax and in view of the fact that no evidence was produced before original adjudicating authority and Commissioner (Appeals) did not allow them to produce any evidence, it is a fit case for exercising the discretion to give an opportunity to the appellant to produce evidence afresh -Matter remanded to original adjudicating authority (Para 9).


M/s Navaratna S G Highway Prop Pvt Ltd Vs CST (Dated : December 8, 2011)

Service Tax - CENVAT Credit - Renting of immovable property service - CENVAT Credit is admissible on the services like construction, Tours & Travel Agents Service, Consulting Architects Service, Consulting Engineers Service, Manpower Placement Agency Service, Air Ticket Booking Agency Service, Security Agency Service, Technical Testing & Analysis Agency and Bank Charges etc - Rule 2(l) of the CENVAT Credit Rules, 2004 - Without utilizing the service, mall could not have been constructed and therefore the renting of immovable property would not have been possible.



CCE Vs Indorama Synthetics (I) Ltd (Dated : March 19, 2012)

Cenvat - Rule 2(1) of CCR, 2004 - Service Tax paid under the category of Business Auxiliary Service (BAS) on the commission paid to brokers abroad on reverse charge basis is an Input Service - Revenue appeal dismissed: CESTAT [para 4]


Twenty Twenty Media Pvt Ltd Vs CST (Dated : April 19, 2012)

Service Tax - Management Consultancy Service - Public Relations Service - Valuation -Reimbursable Expenses - Stay / Dispensation of pre-deposit - Prima facie the service rendered by the assessee is in the nature of Public Relation Service and is not classifiable under the definition for Management Consultancy Service. This being the position, the tax paid by the assessee prior to 1.5.2006 itself is not due. In such circumstances, demand issued invoking extended period of time for demanding tax on amount received as reimbursable expenses in connection with such service is prima facie not maintainable. Stay granted. (Para 6)


Sudarshan Chemical Industries Ltd Vs CCE (Dated : June 27, 2012)

Cenvat - Architectural Consultancy Service used for guest houses and conference prima facie is not connected to the manufacturing of the final product and hence cannot be called as an Input Service – Pre-deposit ordered: CESTAT [para 5]

Rule 2(1) of CCR, 2004 - Outward courier services, Rent-a-cab services and Tour & Travel services are Input services: CESTAT [para 5]


National Institute Of Bank Management Vs CCE (Dated : May 16, 2012)

ST - Applicant seeking clarification from the department as to whether the activity undertaken by them is chargeable to Service Tax – CCE informing vide letter dated 07.12.2006 that applicant is not covered under the category of ‘Commercial Training & Coaching' service – SCN issued in April, 2009 demanding ST of Rs.3.58 Crores for the period 2003 to 2008 – extended period not invokable – Prima facie case for waiver of pre-deposit – Stay granted: CESTAT [paras 6, 6.1 & 7]



M/s Midnapore Tyre Retreading Factory Vs CCE (Dated : August 3, 2012)

ST – Tyre retreading service – Maintenance or repair service - reason for delay in payment of ST was due to confusion with regard to determination of the taxable value and eligibility of small scale exemption – explanation convincing as nothing contrary has been brought on record by Revenue – mere delay in payment of ST cannot be construed as suppression or mis-declaration of facts with intent to evade payment of tax - bonafideness is evident from the fact of their getting registered and the fact that entire receipts duly reflected in audited Balance Sheet - no merit in invoking s.78 of FA, 1994 and imposing penalty – appeal allowed with consequential relief: CESTAT [para 6]


M/s British Airways Vs CST (Dated : April 30, 2012)

Service Tax - Valuation - Rectification of proceedings recorded - Differences pointed out in the record of proceedings stands rectified. Matter posted for pronouncement of final order. (Para 11)


M/s Laffans Petrochemicals Ltd Vs CST (Dated : August 7, 2012)

ST – IPR Services - Agreement provides for requirement of appellant's permission for transfer of technical knowhow by the licencee to any other person who wishes to manufacture same product by using the process developed by the appellant - this itself indicates that there is no permanent transfer of intellectual property right to the licencee in the agreement – Appellant has not made a prima facie case for waiver –pre-deposit ordered: CESTAT [paras 6 & 8]



M/s Speedway Carriers Pvt Ltd Vs CCE (Dated : April 11, 2012)

Service Tax - Rent-a-Cab Service - Demand - Stay / Dispensation of pre-deposit -Assessee rented out low-floor buses to Rajasthan State Road Transport Corporation (RSTRC) on contract basis. This activity falls under the category of rent-a-cab service. However, abatement in terms of notification 1/2006-ST is available to the assessee. Case not made out for complete waiver of pre-deposit. Part pre-deposit ordered. (Para 8, 9l & 10)


International Overseas Services Vs CCE (Dated : July 9, 2012)

ST - Manpower recruitment agency service & BAS - Applicant engaged in the activity of supplying manpower - contention that their service receivers are located outside India and persons recruited are also employed outside India and, therefore, it is to be considered as export of service is prima facie acceptable - Pre-deposit of adjudged dues waived and stay granted: CESTAT [para 3]


Gammon India Ltd Vs CCE (Dated : May 22, 2012)

Applicant engaged in the activity of laying long distance water pipe line in the State of Gujarat – demand of ST raised under the category of "Commercial or Industrial Construction Service" - activity is a civic amenity provided by State in public interest and not an activity of commerce or industry - prima facie in view of decision in B.P.Sangle & Construction Pvt. Ltd. (2012-TIOL-335-CESTAT-Mum) applicant has made a strong case for waiver of pre-deposit – Stay granted: CESTAT [para 4]


M/s Direct Logistics India (P) Ltd Vs CST (Dated : May 2, 2012)

Service Tax – Stay/Pre-deposit of Tax – Demand - Clearing & Forwarding Agency Service – The plea of trading activity - The appellant is admittedly a C&FA registered with the Department - This registration is still in force - prima facie, the plea of the appellant that they did not provide services during the material period is not acceptable - the impugned demand is on amounts collected by the appellant from exporters/importers less the amounts paid to liners for the cargo space - These amounts adopted as taxable value in this case are referred to as "amounts retained" -The appellant has not been able to show that, out of this amount retained, any amount was spent for any ancillary operations pertaining to the imports/exports - The plea of trading activity is not supported by any agreement or other document - At any rate, the amounts paid by the appellant to liners are, admittedly, not part of the taxable value in this case - it is not in dispute that, at least in stray cases handled by the appellant during the period of dispute, the import/export goods were physically handled by them - the appellant has not made out prima facie case against the demand of service tax under the head ‘C&FA service' – Ordered for pre-deposit 10% of the total amount of service tax and education cess demanded by the adjudicating authority (Para 2). .


M/s Serzom's Commercial Pvt Ltd Vs CCE, CC & ST, Siliguri (Dated : August 7, 2012)

ST – BAS - Applicant were appointed by M/s YBL as distributors of beer in Sikkim region and accordingly purchased beer from M/s YBL and sold to retailers in the area -whatever money was collected on retail sale was deposited in the account of M/s.YBL - agreement stated that applicant will get no margin as regards their business but shall be reimbursed on monthly basis by providing distributor discount or other re-imbursement expenses – in balance sheet and ledger maintained by M/s.YBL the amount paid to applicant was shown as commissions on sales and sales promotion expenses – prima facie no case made for waiver – pre-deposit ordered: CESTAT [paras 5 & 6]



M/s Sanjay Services Vs CCE (Dated : March 7, 2012)

ST – Manpower Recruitment and Supply Agency Services - Appellant helping unemployed youth in Nashik for finding employment and is not responsible for any act of these labourers – labourers are not on the payroll of the appellant – work of plumbing, housekeeping, sanitation, general maintenance carried out on contract basis as per agreement - since this legal point was not raised before the lower authorities but only before the Tribunal, matter remanded: CESTAT [para6]


CCE Vs Shivlal Sharma (Dated : May 25, 2012)

Liability to pay ST implies classification and valuation of services involved - appeal cannot be decided by Single Member – registry to place matter before Division Bench: CESTAT


Choudhary Yatra Co Pvt Ltd Vs CCE (Dated : May 22, 2012)

For levy of service tax under the category of Tour Operator Service, the tour is to be operated in a tourist vehicle having any permit permissible under the Motor Vehicle Act/Rules - appellant are neither holding tourist permit nor having tourist vehicles, therefore, they are not liable to pay service on their activities for the period prior to

10/09/2004 - for the activity of Bus Reservation Agreement wherein the vehicles have been provided to other commercial concern/schools, etc. the appellants are liable to pay service tax for the normal period of limitation since issue involves interpretation -appellants are directed to pay service tax for their activity of BRA other than ITDC on their own computation for the normal period of limitation with a detailed chart within 30 days and the same to be submitted before the adjudicating authority for verification – since issue involved is of interpretive nature, no penalty is warranted: CESTAT [paras 9, 11, 17 & 18]



M/s Patel Infrastructure Pvt Ltd Vs CCE (Dated : July 30, 2012)

Service Tax - Management, Maintenance or Repair Services, Commercial or Industrial Construction Services and Business Auxiliary Services (toll collection service) -Demand - Stay / Dispensation of pre-deposit - Service provider has shown that theservices of Management, Maintenance and Repair Services and Commercial and Industrial Construction Services are rendered to Government agencies. The retrospective amendment carried out by Finance Act, 2012 exempting services provided to Government agencies, squarely cover the issue in favour of the service provider. Regarding toll collection service, it has been held that that collection of toll does not fall under the category of Business Auxiliary Services. Pre-deposit waived. (Para 7)


Shri Dinesh K Patwa Vs CST, Ahmedabad (Dated : June 21, 2012)

Service Tax - Renting of Immovable Property - SSI Exemption - Clubbing of Value -Stay / Dispensation of pre-deposit - Individuals are co-owners of a particular building and have rented out the premises to a person, who issues different cheques to all the above individuals as they are co-owners. The aggregate value of the taxable services rendered, should be considered for the purpose of exemption and all the co-owners to be considered as provider of such service and their aggregate value to be considered for the threshold limit. Pre-deposit waived. (Para 6)


M/s Indian Ex-Servicemen Welfare Co-Op Society Ltd Vs CCE (Dated : June 20, 2012)

Service Tax - Security Service - Delayed payment of Service Tax - Penalty - Waiver -The service provider being a welfare co-operative society entertained a bonafide belief that they were not a 'commercial concern'. However, on realising their tax liability, voluntarily paid the tax along with interest. There being no suppression and in the facts of the case, benefit of Section 80 extended. Penalty waived. (Para 4)


M/s Gujarat Fluorochemicals Ltd Vs CCE (Dated : August 9, 2012)

ST - A one sentence order that the appellant's claim is an afterthought is not sufficient – Commissioner (A) should have examined the contract, nature of service received and given reasons as to why the service cannot be classified as IPR service - Since the matter has not received the attention it deserves, remand ordered: CESTAT [paras 6 & 7]



M/s Coca Cola India Inc Vs CST (Dated : July 7, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Management Consultant Service –Non-inclusion of certain expenditures reimbursed – Prima facie, there is merit in the submission that demand under extended period is not sustainable – Pre-deposit waived.


M/s Tridot Engineers Vs CCE (Dated : June 27, 2012)

Service Tax - Industrial or Commercial Construction Services - Demand - Stay / Dispensation of pre-deposit - It is claimed that since a new entry of works contract has been introduced w.e.f. 1.6.07 the service provided was not covered under another entry that was existing prior to the introduction of new entry. Matter already decided contrary to this claim. Financial difficulty pleaded. Pre-deposit ordered to be paid in installments. (Para 3 & 5)


M/s Pearl Travels Vs CCE (Dated : July 19, 2012)

Service Tax - Rent-a-Cab service - Business Support Services - Demand - Stay / Dispensation of pre-deposit - Service provider providing cabs on per kilometer basis. The service provider is maintaining the buses of the service receiver. The issue involved in this case is not free from doubts as the definition of Support Services of Business and Commerce is an inclusive one. The issue needs to be gone into detail and in depth. The service provider has already deposited part of the demand, an additional amount of service tax is directed to be deposited for grant of stay. (Para 6 & 7)


M/s Transmission Corporation Of Andhra Pradesh Ltd Vs CCE (Dated : February 29, 2012)

Service Tax - Business Support Service - Demand is in respect of transmission of electricity from the grid of generating companies to that the distribution companies -The case of the appellant is that they are not liable to pay service tax in respect of such activity by virtue of Notification No.45/2010-ST dated 20/07/2010 issued by the Central Government under Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - Obviously this Notification was not available to the adjudicating authority when it passed the impugned order on 29/01/2010 (Para 2).


CCE Vs M/s Jas Enterprises (Dated : March 13, 2012)

Service Tax - Penalty - Whether the Commissioner (A) order in favour of the assessee means no penalty; Member (J): The complexity of the Notification which has already resulted in passing of a favourable order by Commissioner (Appeals), cannot be understood by a common person not very well conversant with the legal interpretations. Commissioner (Appeals) being an appellate authority has interpreted the Notification in favour of the assessee. She was of the view that when an expert officer himself interprets the Notification in such a manner so as to extend the benefit to the assessee, no faults can be found on the part of the assessee to understand thelaw in that particular manner. In the absence of any specific allegation of malafide and any evidence to that effect produced by Revenue on record, penalty should not be imposed upon the respondents.

Member (T): the question is whether an error made by the Commissioner (Appeal) will result in damage to the rights of the government. As seen from the order in appeal, this error is not in interpreting the scope of the notification No. 21/2004-ST in as much as the order does not record the fact that the catering establishment was outside the premises of the Institute. The error was in noticing the fact whether the catering establishment was within the institute or not which position was clearly known to the appellant and may not have been known to the Commissioner (Appeal) or he may have lost sight of this fact. An error of this type of the Commissioner (Appeal) cannot make a difference to the issue whether there was suppression on the part of the appellant. The matter has to be decided with reference to the appellant's actions and not with reference to the actions of the Commissioner (Appeal).



M/s Adani Enterprises Ltd Vs CST (Dated : July 27, 2012)

ST – Refund claim submitted after 07.07.2009 for exports prior to this date rejected on the ground that same has not been filed within 6 months as required under notfn. 41/2007-ST – Board has clarified that Notf. 17/2009-ST does not bar its applicability to exports that have taken place prior to its issuance – claim has to be considered under notfn. 17/2009-ST only – matter remanded: CESTAT [para 4]



M/s Bharti Airtel Ltd Vs CCE (Dated : January 24, 2012)

Service Tax – Stay/Pre-deposit - Eligibility of CENVAT Credit of excise duty paid on towers and parts thereof – There is no formidable ground in this case to support the plea of bona fide belief of the assessee - The show-cause notice had clearly alleged against them that the factum of having availed CENVAT credit on transmission towers and parts thereof as also on prefabricated buildings was not disclosed in the ST-3 returns or otherwise during the period of dispute - The noticee did not raise the plea of bona fide belief in the context of pleading limitation against the demand of duty -facts must be pleaded at the earliest instant i.e. in a reply to the show-cause notice -The law has to be applied upon settlement of the question of fact - On this universally accepted legal tenet, the plea of bona fide belief is not tenable at this stage - prima facie, there was no room for "interpretation of complex legal provisions" because the legal provisions were simple - Ordered for pre-deposit of Rs.3 Crores (Para 6, 7 & 9).


M/s Lion Securities Service Vs CST, Bangalore (Dated : April 12, 2012)

Service Tax – Stay/Pre-deposit of Tax – Service tax demand on Security Agency Service and Manpower Recruitment and Supply Service - The tax liability in principle is not in dispute and the issue involved in the case pertains to quantification of service tax to be paid by the appellant - Admission of tax liability was never retracted by the appellant - the appellant cannot claim waiver of pre-deposit and stay of recovery –Ordered for pre-deposit of Rs.75 Lakhs (Para 1 & 2).


M/s Palimar Infracon Pvt Ltd Vs CCE, Mangalore (Dated : April 19, 2012)

Service Tax – Stay / Pre-deposit of Tax - Commercial or Industrial Construction Service – the appellant plea is that road construction work is not exigible to service tax on account of exclusion of roads from the ambit of ‘Commercial or Industrial Construction Service' - The Board clarified to the effect that if the construction of road is integral part of a composite contract comprising should also be included in the appellant undertook only construction of road along with allied works for the benefit of the service recipient - Prima facie, major part of the impugned demand is not sustainable (Para 2).


M/s Skyline Builders (Trivandrum) Vs CCE, Thiruvananthapuram (Dated : April 30, 2012)

Service Tax – Stay/Pre-deposit of Tax - Constitution of Residential Complex Service –it appears from the records that, for a period from January 2006 to March 2006 (comprised in the instant period of dispute) also, the department issued a SCN to the appellant on similar grounds and that the demands stand dropped - prima facie, the appellant cannot be held suppressed any material facts so as to justify invocation of the extended period of limitation - the appellant has established prima facie case against the impugned demand both on merits and on the ground of limitation (Para 1, 2 & 4).


M/s Paschimanchal Vidyut Vitran Nigam Ltd Vs CCE, Meerut (Dated : July 2, 2012)

ST - Since assessee is selling electricity, for billing consumer for electricity consumed it is essential to install electricity meter - as such, any activity or service like erection, commissioning and installation of meters as also technical testing and analysis can easily be termed as service relating to the transmission and distribution of electricity -benefit of s. 11C notification 45/2010-ST available - Demand set aside and assessees appeal allowed - Revenue appeal dismissed: CESTAT


CCE Vs M/s Purvanchal Vidyut Vitran Nigam Ltd (Dated : July 2, 2012)

ST - Since the assessee is selling electricity, for billing the consumer for electricity consumed it is essential to install the electricity meter – as such, any activity or service like erection, commissioning and installation of meters as also technical testing and analysis can easily be termed as the service relating to the transmission and distribution of electricity – benefit of s. 11C notification 45/2010-ST available –Demand set aside and assessees appeal allowed – Revenue appeal dismissed: CESTAT [para 14]



Jet Airways (India) Ltd Vs CCE (Dated : May 29, 2012)

ST - Appellant conducts the activity of transporting passengers and goods by their aircraft – not covered under the definition of ‘Cargo Handling Service' so as to be held liable for Service Tax – decision of Tribunal in appellant's own case - (2008-TIOL-979-CESTAT-AHM) followed – Appeal allowed with consequential relief: CESTAT [paras 6 & 7]


TIL Ltd Vs CCE, Jaipur-II (Dated : July 17, 2012)

ST - A tax under Central enactment cannot be discharged by paying tax under a State enactment – contention that since appellant were paying VAT on charges of repair and maintenance they were not required to pay Service Tax is without any merit – there is no ruling of any Court or Tribunal or any circular of CBEC to the effect that a service provider can pay service tax or VAT at his option - If option is given obviously the service provider will pay the tax which is levied at lower rate - The two levies are under separate provisions in the Constitution and the proceeds of such taxes are utilised for different purposes by different authorities - So the Tribunal has no power to say that tax due under one enactment can be discharged by paying tax under another enactment under a lower rate - Contract entered for maintaining and repairing Heavy dumpers - there is a net higher realization than the price of materials sold – pre-deposit ordered of 50% of dues : CESTAT [paras 13, 14, 17 & 18]



SBI Capital Markets Ltd Vs CCE & ST, LTU Mumbai (Dated : July 6, 2012)

Cenvat Credit – Services of Real Estate, Insurance Service, Outdoor Catering Services, Staff Welfare, Management, Maintenance or Repair Services – services in question are not integrally connected/related to the business of the applicant and do not have any nexus with the output service in view of rule 2(1) of the CCR, 2004 – Pre-deposit ordered of Rs.1 lakh for obtaining stay: CESTAT [para 5]


HDFC Bank Ltd Vs CST, Mumbai-I (Dated : June 14, 2012)

S.T – demands confirmed under the category of Banking and Financial Services like services being inserted from 16.05.2008/are exports of service/suppression cannot be alleged – Additional grounds sought to be incorporated in appeal are legal and allowed to be taken on record – as these grounds were not contested before the adjudicating authority, matter remanded for fresh adjudication – Appeal and Miscellaneous application disposed of: CESTAT [para 5]


M/s Tamilnadu Newsprint And Papers Ltd Vs CCE, Chennai (Dated : April 17, 2012)

Service Tax – Adjustment of excess payment of service tax of Goods Transport Agency Service - The appellants, a public sector unit, took extra care to be on the right side of the law by making extra deposits on the last day of the financial year, so that, they are not charged with payment of less tax than was due from them - Rule 6(3) of Service Tax Rules, 1994 permits the appellants to make adjustment of excess payments made earlier in the subsequent period - The conditions peculiar to the service providers cannot be made applicable to the appellants.

The orders passed by the jurisdictional Assistant Commissioner are legal and proper in so far as he holds that the appellants were eligible to make adjustment against excess tax paid by them. The first order having not appealed against has also become final and on the very same issue, there is no scope for issuing a second show cause notice dated 18.12.07 by the department.

A public sector assessee who has been extra careful to make excess payment to be on the right side of the law requires to be treated differently and the action by the jurisdictional Commissioner in not allowing the excess tax paid to be adjusted and imposing another tax burden of equal amount on them along with interest and heavy penalties under three different Sections of the law cannot be approved of. Accordingly, the impugned order is set aside and the appeal is allowed.



CST, Bangalore Vs M/s Infineon Technology India Pvt Ltd (Dated : February 9, 2012)

Service Tax – Refund – Refund of accumulated CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004 – Power of Remand by the Commissioner (Appeals) - As the appellate Commissioner's order is not a remand order, the preliminary objection raised by the appellant by claiming support from the apex court's judgment in MIL India Ltd. case must be overruled at the outset - No merits in the challenge to the findings recorded by the Commissioner (Appeals) - Appeal dismissed (Para 5).


M/s Hewlett Packard India Sales Pvt Ltd Vs CST, Bangalore (Dated : March 1, 2012)

Stay / Pre-deposit – Credit taken on the basis of an Invoice issued by the appellant's Head Office without the requisite registration with the department – Registration Certificate obtained by the Head office of the appellant prior to issuance of invoice was not produced before any of the lower authorities - Such certificate is produced before the Tribunal for the first time – Law says Input Service Distributor should be registered before issuing ‘Cenvatable' invoices - Though Invoice provides the amount of Service Tax distributed to the appellant, it does not indicate whether this amount exceeds the amount of service tax actually paid on the input service - Invoice also

does not indicate particulars like registration number of the input service distributor -These particulars are also required under the relevant rules - prima facie, the appellant has not made out a case – Ordered for pre-deposit of Rs.25 Lakhs (Para 2).


Royal Western India Turf Club Ltd Vs CST, Mumbai (Dated : May 22, 2012)

Turf Club gallops away from Six crores Service Tax demand – Fees charged from bookies, royalty income received from other racing clubs for live telecast of races and royalty from caterers are not chargeable to Service Tax under ‘Business Support Services', ‘Broadcasting Services' and ‘Intellectual Property Rights Services' – total confusion in the minds of the adjudicating authorities as to the nature of the tax and the measure of the tax - On this ground alone the impugned orders deserve to be set aside - Appeals allowed with consequential relief: CESTAT [paras 5.1, 5.2, 5.4, 5.7, 5.9 & 6]

Intellectual Property Rights Service - A perusal of the impugned orders clearly evidences the lack of clarity and understanding on the part of the department. The activity of live telecast of the horse race has been classified as broad casting services during one part of the period and during another period the very same activity is classified as intellectual property rights service - during the same period, the activity has been classified under the above two categories based on the mode of payment for the services, that is, whether payment is lump sum or varying as a percentage of the bet amounts - different classifications have been adopted based on different modes of payment, for the same activity - same confusion prevails in respect of the consideration received from the book makers - There is a total confusion in the minds of the adjudicating authorities as to the nature of the tax and the measure of the tax. On this ground alone the impugned orders deserve to be set aside. [para 5.1]

Where the demand for service tax has been made under the category of Intellectual Property Right Services, neither the show-cause notices nor the orders relating thereto give a clear proposal or finding as to what is the intellectual property rights involved in the transactions, i.e., whether it is a patent, copy rights, trade mark or design or any other category of intellectual property rights - During the arguments AR gave up the claim under Intellectual Property Rights Services and stated that the activity of live telecast of horse races would come under the category of broad casting services - dissemination in this case has been undertaken by M/s Essel Shyam Communication who has discharged the service tax liability on the consideration received by them - appellant himself is not involved in the broadcasting activity. As regards the inclusive part of the definition, the broadcast is available for viewing only in other race clubs and only members or bookies in the other race clubs can view the programme. It cannot be, therefore, said that the broadcast is available for public viewing - activity undertaken by the appellant merits classification under the taxable category of services of permitting commercial use or exploitation of any event organized by a person or organization which was brought under the tax net with effect from 1-7-2010 - as the service tax demand is for the period 01.04.2007 to 31.03.2009, they will not be liable to service tax during this period. [paras 5.2, 5.3, 5.4, 5.5, 5.6 & 5.7]

STax under the category Business Support Services for consideration received from book makers and the caterer - appellant made available space within the premises of the turf club by way of stall or canteen, for a consideration - this activity is nothing but hiring/leasing of immovable property – it cannot be called Business Support Service as mere renting of office space does not come within the definition - Such providing of space should be along with other facilities specified therein - It is not the case of the department such facilities have been provided to the book makers or the caterer – no merit in the argument that the renting of office space to the caterer/book

maker is liable to be classified as business support service - it is not the departments case that the book makers and the caterer outsourced infrastructural support from the appellant Turf Club. [paras 5.8, 5.9 & 5.10]

No merit in the orders confirming Service Tax liability – Appeals allowed [para 6]



M/s Gimpex Ltd Vs CCE, Tirupati (Dated : February 21, 2012)

Service Tax - GTA Service - Demand - There was no personal hearing after the party filed their final reply to the SCN - During the interregnum between the date of filing of the reply and the date of passing of the impugned order, there was no sufficient time, nor opportunity, for the assessee to know as to what the adjudicating authority expected them to do - It was only upon receipt of the impugned order that the assessee came to know that their defence failed merely on account of non-production of Chartered Accountant's certificate - Commissioner should have given a reasonable opportunity to procure such certificate or to adduce additional documentary evidence -assessee is ready with such documents - Ordered for de novo adjudication of the dispute in accordance with the principles of natural justice (Para 6).


M/s Chellam Tyre Retreading Vs CCE, Madurai (Dated : February 23, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Valuation – Tyre retreading service -Benefit of exemption under Notification No 12/2003 ST dated is prima facie not admissible to the appellants – Pre-deposit ordered.


CCE, Goa Vs Andrews Telecommunications India Pvt Ltd (Dated : June 25, 2012)

ST – Agency commission paid by foreign principal in convertible foreign exchange –assessee paid ST under the bona fide belief that such services are covered under BAS –Board clarifying in year 2009 that such activity is covered under Export of Services, Rules, 2005 and ST is not required to be paid – refund claim filed in April, 2010 for ST paid during 2006-07 to 2007-08 - All claims for refund have to be preferred and adjudicated under the provisions of the respective enactment – claim clearly time barred in terms of s.11B of CEA, 1944 – Revenue appeal allowed: CESTAT [paras 6, 7 & 8]



CLP Power India Pvt Ltd Vs CST, Mumbai (Dated : July 9, 2012)

Prior to 16.06.2005 applicant having a composite contract for operation and maintenance of power plant – after introduction of levy of ST under the category of Management, Maintenance and repair services of immovable property, they modified their contract and are paying ST on the activities of maintenance only – ST demand confirmed of Rs.3.58 Crores in respect of operation activity – in view of decisions of Tribunal in case of Hyundai Heavy Industries, Wartsila Diesel and Operational Energy Group India Ltd., prima facie case for waiver of pre-deposit – Stay granted: CESTAT [para 5]


Dhiraj Iron & Steel Ltd Vs CCE & CC, Nagpur (Dated : June 4, 2012)

ST - Applicant undertaking activity of conversion of black bars into bright bars at client's site – on 9.5.2007 a letter was issued by jurisdictional Superintendent to the applicant that the activity appears to be covered under ‘Manpower Recruitment Agency Service' – after this letter no communication was done for three years and on February, 2011 a SCN invoking extended period was issued demanding Service Tax for the period June 2005 to January, 2009 – without considering merits, prima facie , the demands are barred by limitation – pre-deposit waived of adjudged dues and stay granted: CESTAT [para 4]


Mr Rahul Dravid Vs CST, Bangalore (Dated : June 5, 2012)

Service Tax - Business Auxiliary Service - Principles of Natural Justice - SCN alleges that the appellant was rendering BAS to Royal Challengers by sporting the Logo/Mark/Sign which, according to the Department, were in the nature of advertising the products of the commercial establishments - It is evident from the records of the case, the contentions raised by the assessee were not heeded by the adjudicating authority, which chose to rely on Wikipedia and other materials - It appears, Wikipedia was elaborately referred to in the impugned order without putting the assessee on notice, which, by all means, amounts to violation of natural justice - The case of department was mainly based on the MOUs executed by Royal Challengers with the owners of logo/mark/sign which were displayed by the cricketer on his uniform during the course of the tournaments, but no copy of any such MOU was supplied to the assessee, nor even mentioned in the list of relied-upon documents attached to the SCNs - This is yet another instance of denial of natural justice - Matter remanded for de novo adjudication (Para 3, 4 & 5).



Mr G Hemanth Reddy VsCCE, Tirupathi (Dated : January 12, 2012)

Service Tax – Stay/Pre-deposit of Tax - 'Commercial and Industrial Construction Service – Construction of Commercial Buildings for Tirupati Urban Development Authority - Prima facie, the activities undertaken by the appellants are covered by the definition of 'Commercial and Industrial Construction service' in terms of Section 65(25b) of the Finance Act, 1994 – Pre-deposit Ordered (Para 2).


M/s IJM (India) Infrastructure Ltd Vs CC, CE & ST, Hyderabad (Dated : March 28, 2012)

Service Tax - Demand - The claim of the appellants that the demand confirmed by the Bangalore Commissionerate is covering one of the projects covered by the impugned demand appears to be prima facie correct (Para 6 & 7).

Service Tax - Benefit of Exemption - Eligibility of Notification No.15/2004 ST dated 10.09.2004 and Notification No.1/2006-ST dt.01/03/2006 without availing the benefit of CENVAT credit - The appellant has claimed that at least for the period from 1/4/2006, since they have not taken CENVAT credit on inputs/input services, denial of exemption for services rendered during the said period - This aspect deserves to be considered afresh by the Commissioner (Para 6 & 7).

Service Tax - Payment of Tax - The appellants have claimed that they have not rendered any other services and that they have paid more than Rs.7 Crore towards service tax and the same has been ignored by the Commissioner on the ground that the same was not substantiated - If they have not rendered any other service, prima facie, the amount of Rs.7,32,50,283/- claimed to have been paid by them should have been adjusted towards the demand confirmed by the Commissioner, if need be, after causing necessary verification - This appears to be a major lacunae and, therefore the matter requires to be considered afresh (Para 6 & 7).

Service Tax - Duplication of Demand - The Commissioner has denied the credit taken amounting to Rs.3,62,94,113/- - Commissioner has again demanded separately a sum of Rs.68,46,600/-, which was part of the credit utilized out of total credit wrongly availed by them - While the appellants are not contesting the ineligibility of credit taken by them, prima facie there is duplication of demand - The matter deserves to be considered afresh (Para 6 & 7).

Service Tax - Cum-duty/Tax Benefit - This issue deserves to be considered - matter remanded (Para 6 & 7).

Service Tax - Valuation of Services - Appellants have raised the issue of valuation of services for the purpose of determining the tax liability - The issue deserves to be considered afresh (Para 6 & 7).


M/s Spectrum Coal And Power Ltd Vs CCE, Raipur (Dated : July 5, 2012)

ST - Beneficiation of raw coal is not an activity classifiable under Business Auxiliary Services – same is recognized as a part of mining activity subjected to ST levy from June, 2007 – demand under BAS for period up to March, 2006 is not legal – since 'cargo handling services' were being provided by the appellants as an extension to the services of beneficiation of coal, there could be a doubt on the part of the appellants that ST is not payable – penalty waived in terms of s.80 of FA, 1994: CESTAT [paras 6 & 8]



M/s Kingfisher Airlines Ltd Vs CCE, Bangalore (Dated : March 26, 2012)

Service Tax - Stay / Pre-deposit - Demand - Business Auxiliary Service - Collection of Passenger Service Fee (PSF) from passengers on behalf of Airports Authority of India as a Commission Agent and receiving commission @ 2.5% on PSF - Prima facie view that the appellant was functioning as a commission agent for AAI by collecting PSF for AAI and remitting the collections to them - It is not in dispute that the collection charges at the rate of 2.5% on PSF were adjusted against a penal interest leviable from the appellant at the rate of 18% on the PSF collected and retained by them till its remittance to AAI - These charges constituted the taxable value for the impugned levy (Para 6).

Service Tax - Limitation - As regards the plea of limitation, an amount of service tax of approximately Rs.70 Lakhs is within the normal period and this amount is prima facie recoverable, from the appellant on merits (Para 6).

Service Tax - Financial Hardship - the Ld. Counsel has shown the balance sheet for the year ended 31 st March, 2010, which indicates an accumulated loss of over Rs.4,000 Crores - Ordered for Pre-deposit of Rs.25 Lakhs (Para 6 & 7).


M/s IBM India Pvt Ltd Vs CCE & ST, LTU Bangalore (Dated : May 14, 2012)

Service Tax – Stay/Pre-deposit of Tax – CENVAT Credit – Transfer of CENVAT Credit on Input Services of two companies, which were acquired under Business Transfer Agreements - The department is of the view that no transfer of credit on 'input services' is permissible under the Rule 10 - On a cojoint reading of sub-rules 1, 2 and 3 of Rule 10 of CENVAT Credit Rules, 2004, prima facie case for the appellant – Pre-deposit waived (Para 1).


M/s Ashok Agarwal Vs CCE, Jaipur-I (Dated : June 14, 2012)

Legal infirmity in revisionary order in demanding tax under a category of service different from the one for which demand was initially issued - Service recipient has taken godown on rent from the service provider itself - this has to be seen as a case of tax planning rather than tax evasion - extended period of time could not have been invoked for demanding the impugned tax – Appeal allowed: CESTAT. [para 7]



M/s Sushee Infra Pvt Ltd Vs CC, CE & ST , Hyderabad (Dated : May 23, 2012)

Service Tax – Stay/Pre-deposit of Tax – Business Auxiliary Service – The appellant received the contracts for Site Formation and Clearance from Government and gave the same to sub-contractors on ‘back to back' basis and retained margins – Demand of Service Tax on retained margins under BAS – Held that : The amount of margin retained by the appellant cannot be treated as service charges received from the subcontractors and separately taxed under ‘Business Auxiliary Service' in the light of the submissions that the entire amount received from Government has suffered service tax at their hands under the head "site formation and clearance'' – Pre-deposit waived (Para 5).


M/s TFL Quinn India Pvt Ltd Vs CCE, Hyderabad (Dated : May 16, 2012)

100 % EOU – Stay/Pre-deposit of Duty – Leviability of Education Cess on the duty of excise paid on the clearances made by EOU to DTA despite the fact that Education Cess elements were already included in the duties of customs – on this very issue, a co-ordinate bench has held against the Revenue and another held in favour of revenue – Matter referred to larger bench - In view of the reference of the issue to Larger Bench, it must be held that the appellant has a prima facie on merits – Pre-deposit waived (Para 1 &3).


Vapi Waste & Effluent Management Co Vs CCE, Daman (Dated : June 19, 2012)

Service Tax - Club or Association - treatment and recycling of effluents and solid waste - exempted : Notification 42/2011-S.T. dated 25.07.2011 was issued which exempted club or association service provided by an association for treatment and recycling of effluents and solid waste. This notification has been given retrospective

effect by Section 145 of Finance Act, 2012 from June, 2005 . The appellant isregistered as company under Section 25 only and the character of the company being an association does not change just because they are registered as a company.



M/s Gem Tyre Retreaders Vs CCE, Chennai (Dated : March 22, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Valuation – Tyre retreading service -Benefit of exemption under Notification No 12/2003 ST dated is prima facie not admissible to the appellants – Pre-deposit ordered.


Consolidated Constructions Vs CST, Chennai (Dated : March 21, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Commercial or Industrial construction service – Denial of benefit of Notification 1/2006 ST on that the appellant had availed CENVAT Credit on capital goods and input services – No prima facie case has been made out for waiver of pre-deposit in view of provisions of Rule 3(7) of the CENVAT Credit Rules – Pre-deposit ordered.


M/s H R International Vs CCE, Jalandhar (Dated : July 13, 2012)

Demand confirmed is without authority of law and is not for recovering any loss of Revenue that has occurred - It is based on "heads I win tails you lose" type of argument adopted by Revenue in matters which are already decided against Revenue – Appeal allowed: CESTAT [paras 9, 11 & 12]

Appellant received services of agents located abroad to promote sale of their goods abroad - It is no longer res integra that service tax could not have been demanded from service recipient prior to 18-04-2006 - demand for service tax is not maintainable. [para 9]

Criterion mentioned in rule 9(1) of CCR, 2004 prescribing documents for taking Cenvat credit of input service only mentions that the invoice, a bill or challan issued by a provider of input service should be on or after the 10th day of September, 2004 -it is not with reference to date on which service was provided - Revenue has not been able to prove that the service was in fact provided prior to 10-09-2004 - no reason to deny the credit availed: CESTAT [para 11]



Asstt Commissioner Of Customs, Central Excise & Service Tax, Visakhapatnam Vs M/s Sree Siva Sankar Automobiles (Dated : May 11, 2012)

Service Tax – CENVAT Credit - Respondents are the dealer of Motorcycles and are also having Authorized Service Stations - Dispute relates to credit taken by the respondent in respect of service tax paid on the freight amount involved in transporting the motor vehicles from the factory to the dealer's premises - Held that : The respondents are undisputedly having dual roles, one as dealer of the motor vehicle and the other as the authorized service station - The GTA services utilized for the purpose of transport of the vehicle to the dealer's premises relate to their activities as a dealer - This GTA services cannot be treated as input services in respect of activities undertaken by the respondent as authorized service station – There is no valid reason for the Commissioner (Appeals) to have deviated from view expressed in the clarification of the Board (Para 5.1 & 5.2).


M/s SAS Advertisers Vs CCE, Mysore (Dated : May 9, 2012)

Service Tax – Stay/Pre-deposit – Sale of Space/Time for Advertisement – Limitation –Bona fide belief - appellant obtained land from the Municipal Corporation on a rental basis and erected cantilevers - The Corporation utilizes one side of the cantilever and the appellants can utilize the other side of the cantilever to generate revenue by way of renting out that space for the purpose of advertisements – One of the reasons for the bona fide belief, stated by the appellant, was that Advertising agency paid service tax under the same Head in respect of the sale of space of the cantilevers - the plea of limitation advanced by the Ld. consultant merits consideration - Pre-deposit waived (Para 2).


Sunbeam Infocom P Ltd Vs CCE, Kolhapur (Dated : May31, 2012)

Prima facie the activity of Maharashtra Knowledge Corporation Ltd. is not in the nature of business – therefore service rendered by the applicant to MKCL does not fall under BAS – Pre-deposit waived and stay granted: CESTAT [para 3]



M/s Mohendra Construction Vs CCE, Allahabad (Dated :June 26, 2012)

Service Tax - Service of Tangible Goods - Demand - Speaking Order -Commissioner (Appeals), has chosen to reproduce only a part of the paragraphs of the

memo in appeal to give an impression as if the assessee has accepted their duty liability and has not discussed the various grounds raised in the Memo of Appeal. Such approach and style of passing of appellate orders, will shake faith of public in the judicial remedy. Mater remanded for fresh decision. (Para 8 & 9)


M/s Icomm Tele Ltd Vs CCE, Hyderabad (Dated : November 1, 2011)

Service Tax – Stay/Pre-deposit of Tax – Erection, Commission and Installation Service – Denied benefit of exemption under Notification No.1/2006-ST dated 1.3.2006 on the ground that the contract is merely for undertaking the services of erection, commissioning and installation of towers and there is no supply of plant, machinery or equipments – Undertook the work relating to erection, commissioning and installation of not only towers manufactured by them but also towers manufactured by other parties - when the towers are manufactured by other parties, the question of appellant supplying such towers does not arise - In such cases, the contract is only for the purpose of undertaking services of erection, commissioning and installation - The supply of materials required in connection with such erection, commissioning and installation does not amount to contract for supply of plant, machinery or equipment -The appellant has not made out a case for full waiver of dues – Ordered for pre-deposit of Rs.10 Lakhs (Para 5 & 6).


CCE, Kanpur Vs M/s Vee Aar Developers Pvt Ltd (Dated : June 18, 2012)

ST - Decisions of High Courts should prevail over decision of the Tribunal and Advance Ruling Authority – Construction of residential complexes on own land and selling the residential units in such complexes to customers not leviable to Service Tax till the date of insertion of Explanation on 01.07.2010 in section 65(105)(zzzh) of the Finance Act, 1994 – Revenue appeal dismissed: CESTAT [paras 12 & 13]



M/s Skyline Construction And Housing Pvt Ltd Vs CCE, Bangalore (Dated : April 16, 2012)

Service Tax – Stay / Pre-deposit of Service Tax - Construction of Residential Complexes – Service Tax demand made for the period from 16.6.2005 to 31.3.2006 –The agreement was concluded between the appellant as builder and the ultimate buyer of the flat - The terms and conditions of this agreement clearly indicate that the construction activity was carried out by the appellant and the property was retained in their possession till it was sold and handed over to the ultimate buyer - There is nowhere in this agreement any reference to any intermediary. Followed the decision of High Court in the case of G.S. Promoters (2010-TIOL-813-HC-P&H-ST) –Contention that there is no element of service of construction involved in a builder

selling a flat cannot be accepted – Pre-deposit of Rs.5 Lakhs Ordered (Para 3 & 5).


Inox Air Products Ltd Vs CCE, Raigad (Dated : June 4, 2012)

Applicant manufacturing liquid gases and supplying the same to customers in cryogenic tanks installed by them at customer's premises - Leasing out of Storage tanks prima facie does not fall under the category of “Storage and Warehousing” services - case made out for 100% waiver of pre-deposit – Pre-deposit waived and stay granted: CESTAT [para 4]



I A Dhas Vs CCE, Raipur (Dated : July 2, 2012)

ST - Appellant entered into an agreement to do the activity of loading, unloading, transportation and stacking of various iron and steel products within the stockyard of M/s SAIL - though separate bills were raised for all the four activities, the Asstt.Commissioner only confirmed demand for the activity of loading and unloading under the head ‘Cargo Handling Services' - this order was accepted by Revenue and the appellant also started paying service tax - new agreement was also on similar lines -SCN later issued to pay service tax on the consideration received for transportation of the goods within the stockyard as also for stacking of the same - period covered under earlier agreement also included - since entire facts were in the knowledge of the Revenue, larger period of limitation cannot be invoked - even otherwise Activity of transportation and stacking within the stockyard premises cannot be held to be covered by the activity of 'cargo handling services' - appeal allowed with consequential relief: CESTAT [paras 9, 10 & 11]


M/s Marvito Engineering Industries Vs CCE, Vadodara (Dated : July 24, 2012)

Appellants carrying out job work on inputs received under rule 4(5)(a) of the CCR, 2004 – to attract Service Tax under the category of BAS viz. “production of goods on behalf of clients” there would be three parties - since services undertaken by the appellants is not covered by the definition, no service tax is attracted: CESTAT [paras 8, 9 & 10]



Bharat Sanchar Nigam Ltd Vs CCE, Jammu (Dated : June 26, 2012)

Service Tax - Telecommunication Service - Place of service - Stay / Dispensation of pre-deposit - The service provider is selling 'India Telephone Cards' in Jammu & Kashmir where there is no liability to pay service tax but services are provided largely outside Jammu & Kashmir. Liability to pay service tax arises with reference to the place where service is provided rather than the place where consideration is collected. This is a serious matter of tax evasion and pre-deposit of entire dues ordered. (Para 8 & 9)


M/s Bharat Sanchar Nigam Ltd Vs CCE, Chennai (Dated : March 21, 2012)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit on capital goods denied on the ground that the same were used outside the premises of the service provider – Prima facie case made out for waiver of pre-deposit as there is no condition that the capital goods for providing output service are to be installed in the premises of the output service provider.


M/s Valsala Travels (P) Ltd Vs CCE, Bangalore (Dated : March 26, 2012)

Service Tax – Stay/Pre-deposit of Tax - Tour Operator Service – Non-payment of Service Tax on the ground that providing Public Service Vehicles - With effect from 01.06.2007, vehicles with capacity of more than 12 Seaters also will be covered under the category of ‘rent-a-cab' - On merits, the appellants have no case inasmuch as there is an amendment to the definition of taxable service of ‘rent-a-cab' with effect from 01.06.2007 – Ordered for Pre-deposit of Rs. 20 Lakhs (Para 5 & 6).


M/s Vaishnavi Jewellers Pvt Ltd Vs CC, CC & ST, Hyderabad (Dated : May 7, 2012)

Service Tax – Appeal – Delayed Filing of Appeal before the Commissioner (Appeal) by the appellants – Commissioner (A) rejected the appeal – Held that : The delay was clearly stated in the memo of appeal presented before the Commissioner (A) - It was also categorically stated that there was sufficient cause for condonation of that delay -Commissioner (Appeals) ought to have given the appellant a reasonable opportunity to establish the sufficiency of cause if any for condonation of the delay of appeal -Impugned order set aside (Para 4, 5 & 6).


M/s Vijetha Enterprises Vs CCE, Hyderabad (Dated : February 16, 2012)

Service Tax – Stay/Pre-deposit of Tax - Maintenance or Repair Service – Services rendered to Military Engineering Service (MES) – No copy of the agreement said to have been entered into by the appellant with MES has been brought on record and, therefore, the question whether movable or immovable property was repaired/maintained by the appellant is not ascertainable - the definition of ‘Maintenance or Repair Service' does not include any commercial or industrial element which is conspicuously present in the relevant part of the definition of “Commercial or Industrial Construction Service - the appellant has not made out a prima fade case against the demand of service tax - Ordered for pre-deposit of Rs.8 Lakhs (Para 3).


M/s Silppi Constructions Contractors Vs CCE, Cochin (Dated : April 16, 2012)

Service Tax – Stay / Pre-deposit of Service Tax - Construction of Residential Building Complexes – Part of the demand pertains construction of residential quarters for Indian Navy officers and rest pertains to similar works for private parties - prima facie, there is no case for the demand of service tax in respect of the construction made for the Indian Navy (Para 1).

Service Tax - Commercial or Industrial Construction Service - On a perusal of the work orders and connected invoices, prima facie, it appears that the appellant was undertaking ‘Commercial or Industrial Construction' for their private clients - As rightly pointed out by the ld. Addl. Commissioner (AR), the abatement claimed by the appellant was not granted by the adjudicating authority as the cost of materials was not included in the gross value – Ordered for pre-deposit of Rs.90 Lakhs (Para 3).


CST, Bangalore Vs M/s Central Warehousing Corporation Ltd (Dated :January 27, 2012)

Service Tax – Refund – Limitation - Refund claim filed on account of non-payment of Service Tax by the service receiver for the service provided i.e. renting of space –Original authority rejected the same - Refund claim was rejected by the original adjudicating authority on the ground that the matter was before the court and issue of taxability was not settled as well as a portion of the refund claim was time barred -Refund claim was allowed by the Commissioner (Appeals) - While considering the taxability issue, the Commissioner (Appeals) seems to have omitted to take note of the limitation aspect and there is no finding in this regard at all - Matter remanded to Commissioner (Appeals) for a fresh decision (Para 2).


CST, Bangalore Vs Quality Engineering & Servicetechnologies (Pvt) Ltd (Dated : January 24, 2012)

Service Tax – Refund of CENVAT Credit under Rule 5 of CENVAT Credit Rules, 2004 –Refund claim of the respondent was allowed partially – the Commissioner (A) remanded case to original authority on the ground that nexus was to be established through a Chartered Accountant's certificate in terms of CBEC Circular dated 19.1.2010 -Revenue filed the appeal against remand order of the Commissioner (Appeals) - the reason found by the learned Commissioner (Appeals) for de novo adjudication of the refund claim has to be appreciated - When the order-in-original in this case was passed by the Deputy Commissioner, the Board's circular was not in existence - The circular was taken note of by the appellate authority(Para 5).


Inox Air Products Ltd Vs CCE, Raigad (Dated : June 4, 2012)

ST - Liquid helium imported and stored in cryogenic tanks received from foreign supplier – these tanks are exported within six months from importation – rent paid to foreign supplier for these tanks – whether chargeable to ST under reverse charge mechanism – prima facie view is that since goods cannot be imported otherwise, appellants are not covered under the category of Storage & Warehousing Services -Matter remanded: CESTAT [paras 4 & 5]



M/s Super Hospitality Services Pvt Ltd Vs CCE, Vadodara (Dated : July 31, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Outdoor catering service – Claim of the appellant with regard to the admissibility of Notification No 1/2006 ST needs to be gone in detail – Pre-deposit of Rs 50 lakhs ordered.


CCE, Visakhapatnam Vs M/s Dynamic Constructions (Dated : January 25, 2012)

Service Tax – Demand - Management, Maintenance or Repair Service – Original Authority confirmed demand of Service Tax during the period between July, 2003 and March, 2007 under Management, Maintenance or Repair Service – Remand of case to original authority by the Commissioner (A) - the assessee was undertaking repairs and maintenance of both movable and immovable properties - In respect of immovable property, the service was rendered under an agreement entered into with the service recipient. Apparently, the assessee did not produce this agreement before the original authority - Repairs and maintenance of immovable property became taxable only w.e.f. 01/05/2006 - Apparently, the learned Commissioner (A) wanted this contention to be considered by the original authority - Though the Commissioner

(Appeals) did not have the power of remand, the reasons noted by him for sending the case back to the original authority certainly merits consideration - The reasons are valid and therefore de novo adjudication of the case is warranted in this case (Para 2 & 3).


M/s Kaypee Electronics & Associates (P) Ltd Vs CC, Bangalore (Dated : May 18, 2012)

Service Tax – Refund – Refund under Rule 5 of CENVAT Credit Rules, 2004 - The issue as to whether credit on input services attributable to deemed exports are eligible to be granted as refund stands decided in favour of assessee in a number of decisions relied upon by the assessee - the refund should be sanctioned (Para 6.1).

Service Tax – Refund – Denial of refund on non-production of evidences for utilization of such services - It is a case of non-production of evidence before the original authority, which led to this difference in the decisions of the Commissioner (Appeals) -it is noticed that the original authority has given the refund for the subsequent period - the assessee has not been given an opportunity to produce the necessary evidence like rental agreement, etc., the matter requires to be reconsidered – Matter remanded (Para 6.2).


Tata Consultancy Services Ltd Vs CCE & ST (LTU), Mumbai (Dated : July 2, 2012)

Refund of Service Tax – SEZ Unit - Jurisdictional CCE is also a member of the Approval Committee and once the Committee has given the nexus and justification for use of such service in relation to authorized operations it was totally unwarranted on the part of the lower authorities to question the same – even if the appellant was not eligible for refund under notfn. 09/2009-ST, they were certainly eligible for refund u/s 11B of CEA, 1944 – a broader view of provisions relating to refund is warranted –Appeals allowed with consequential relief: CESTAT [paras 6.1, 6.2, 6.3 & 7]

In the case of services which are wholly consumed within the SEZ, there is no necessity to discharge the service tax liability ab initio. That does not mean that in a case where service tax liability has been discharged, the appellant is not eligible or not entitled for refund of the service tax paid under the provisions of Section 11B of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994....para 6.2

It is the avowed policy objective of the Government of India that exports should not bear the burden of taxes. If this policy objective has to be sub-served and the objective realized broader view of the provisions relating to refund has to be taken. Therefore, even if the appellant was not eligible for refund under Notification No. 09/2009-ST dated 3.3.2009, the appellants were certainly eligible for refund under Section 11B of the Central Excise Act, 1944. In this view of the matter, rejection of service tax refund is not sustainable in law....para 6.3



M/s Hinduja Foundries Ltd Vs CST, Chennai (Dated : March 20, 2012)

Service Tax – Demand of service tax on Design and drawing charges collected for manufacture of castings – Appellants plead for an opportunity to prove that such charges have been included for payment of central excise duty – Matter remanded to the original authority to examine the plea of the appellants on the condition of depositing Rs 50 lakhs.


CST, Bangalore Vs M/s Swiss Re-Shared Services (India) Pvt Ltd (Dated : February 6, 2012)

Central Excise – Refund – Power of Remand by the Commissioner (Appeals) – Refund of unutilized CENVAT credit of the service tax paid on numerous input services which were used for export of Information Technology Support Service - Original authority sanctioned refund of the service tax paid on some of the input services and rejected for certain services - Against this rejection of refund claim, the assessee approached the Commissioner (Appeals) and the latter found nexus between the input services (barring Air Travel Agency Service) and the output service exported by the party -Accordingly the matter was sent back to the original authority for quantification of the amount for refund in respect of the input services which were found to have nexus with the output service - Obviously, this was not a remand (Para 2).


CCE, Jalandhar Vs M/s General Manager, Telecom (Dated : June 27, 2012)

Short payment of ST by govt. telecom company - Amounts paid by customers inclusive of service tax were always in Government account and this is just a matter of adjustment of money from one account of GOI to another account of GOI - there is no need to collect any interest in the case of delay in deposit of service tax – Penalty also correctly waived – Revenue Appeals rejected: CESTAT [paras 6, 7 & 8]



Kalyani Hayes Lemmerz Ltd Vs CCE, Pune-III (Dated : April 20, 2012)

Notfn. 41/2007-ST – Refund of Service Tax in respect of export goods – notification 41/2007-ST is an exemption notification and exemption is operationalised through a refund mechanism – it prescribes a complete procedure and time limit for claiming the refund – unless the same are satisfied, claims cannot be entertained – amending notfn. 32/2008-ST dated 18.11.2008 raising the time limit to claim refund to six

months is only prospective and cannot be applied to past refund claims – in CBEC Circular no. 112/06/2009-ST reference to the month of March 2008 is an error apparent on face – there is no quarter March – June and it can only be April to June –on the basis of such an erroneous clarification no benefit can be claimed by appellant – Appeals dismissed: CESTAT [para 5]


M/s Akshay Enterprises Vs CCE (ST), Salem (Dated : April 10, 2012)

Service tax – Penalty – Service tax was paid with interest and Show Cause Notice was issued three years after the payment – No allegations of suppression or fraud etc in the Show Cause Notice – It is a fit case covered under Section 73(3) warranting no penalty – Penalty imposed under Section 78 is set aside.


CCE, Visakhapatnam Vs M/s KK Packers And Movers (Dated : March 6, 2012)

Service Tax – Demand – Commissioner (Appeals) dropped the service tax demand –Held that : It appears that the Commissioner (Appeals) has not taken the views of the department on the disputed facts - the Commissioner (Appeals) has taken a view that since notice has been issued on 19.2.2008, the demand for the period prior to 18.2.2007 is hit by limitation - This is also legally erroneous - the Commissioner's (Appeals) order appears to be not founded on correct facts and based on erroneous appreciation of law - Set aside the impugned order and remand the matter for fresh consideration (Para 5 & 6).


M/s Premier Coach & Synthetic Products Pvt Ltd Vs CCE, Hyderabad (Dated : May 2, 2012)

Service Tax – Demand – Appellate Authority rejected the appeal on the ground of non-compliance of Section 35F - In a similar case for a later period, passed Order-in-Appeal in favour of the appellant setting aside a similar demand and was accepted by the Department - It appears from the text of the Order-in-Appeal that it dealt with a set of facts which are similar to the facts of the instant case and held in favour of assessee after extensive discussion while interpreting Rule 2(1) (d) (v) of the Service Tax Rules, 1994 - In this scenario, it goes without saying that the appellant has prima facie case for waiver and stay to be granted by the lower appellate authority - The Commissioner (Appeals) ought not to have directed pre-deposit by the assessee - set aside the impugned order and allowed the appeal by way of remand (Para 3 & 4).


M/s Krishna Security Bureau Vs CCE (ST), Madurai (Dated : March 23, 2012)

Service Tax – Penalty – Service tax paid before issue of Show Cause Notice –Appellants entitled for the benefit of Section 73(3) in respect of amounts paid before issue of Show Cause Notice – In respect of the rest of the amount already paid, the lower authorities should consider the reduced penalty of 25% - Matter remanded to original authority to quantify 25% penalty.


Cybertech Software & Services Ltd Vs CCE, Thane I (Dated : June 20, 2012)

As the applicant with conscious mind had sought withdrawal of their appeal from Tribunal and which permission was granted resulting in the appeal being dismissed as withdrawn, ROA application filed seeking remedy against action taken by the Revenue after disposal of their appeal is without any merit -actions cannot be revoked by filing ROA -Application dismissed: CESTAT [paras 5, 5.1 & 6]



M/s Mohan Enterprises Vs CCE, Visakhapatnam-II (Dated : January 31, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Appellant provided rent-a-cab service, collected tax but did not deposit with the exchequer – Pre-deposit of Rs. 17,802/- ordered


M/s The Oudh Sugar Mills Ltd Vs CCE, Lucknow (Dated : April 3, 2012)

Central Excise - CENVAT - Input Service - Insurance to plant, vehicles, employees, goods etc. - If there is no statutory requirement for providing insurance cover for the employees and the same is pure welfare activity, then credit not eligible. Insurance of plant and machinery, goods in storage, cash in transit and goods in transit if sales are on FOR destination basis are services integrally connected with the manufacturing business of an assessee and the same have to be treated as "activities relating to business" and hence covered by the definition of input service. Matter remanded to the original authority to decide the matter in terms of the above decision as necessary documents have not been produced regarding the insurance claims at the time of adjudication. (Para 6.1.1, 6.1.2 & 7)


M/s MMTC Ltd Vs CCE, Visakhapatnam (Dated : March 1, 2012)

Service Tax – Stay / Pre deposit of Tax – Business Auxiliary Service – Demand of service tax on commission paid - Notwithstanding the claim by the appellants to be a canalizing agent, the transactions between NMDC and the appellants are in the nature of purchase and sale as duly recorded by the Commissioner - This is also the view held by the Sales Tax Department and Income Tax Department - prima facie, it is not correct to treat the profit earned by the appellants as consideration towards service rendered to NMDC (Para 5).


Shivam Security And Investigation Services Vs CST, Ahmedabad (Dated : June 21, 2012)

Appellant's claim before the lower authorities that relied upon documents be supplied were summarily dismissed – since the alleged impersonator had been interacting with the recipient of service and the service recipients were making payment for the services rendered, these documents may be needed by the appellant for defending his case of non-liability of Service Tax – natural justice violated – Appeal allowed by way of remand: CESTAT [paras 4, 5 & 6]



Central Institute Of Plastic Engineering And Technology Vs CCE, Hyderabad (Dated : February 7, 2012)

Service Tax – Stay / Pre deposit - Commercial Training and Coaching Service – the appellant was working as a 'vocational training institute' during the material period -prima facie, prior to 1.5.2011, appellant is not liable to pay service tax on the amounts collected by them from trainees and students attending short term courses -even otherwise, the appellant could have claimed exemption under Notification No. 24/2004-ST dated 10.9.2004 as amended - the claim of exemption is also prima facie sustainable – Stay Granted (Para 1 & 2).

Service Tax – Stay / Pre deposit – Consulting Engineer Service – the appellant rendering advisory assistance to industries on the directions of the State Government and receiving financial aid from the Government - services provided to both PSU and other industries - No remuneration collected – Stay Granted (Para 1 & 2).


Life Care Medical Systems Vs CST, Mumbai-II (Dated : June 21, 2012)

Appellant engaged in promoting, marketing and distributing various medical equipment manufactured by Viasys International Corporation, US of A, in India for

which they are receiving commission – prima facie, for the period from March, 2005 onwards activity is not "Export of Service" – as per GATT on which is based the Export of Service Rules, only when the user and the use of the services are located outside India, the transaction amounts to export and not otherwise - Pre-deposit ordered of Rs.25 lakhs: CESTAT [paras 13, 14, 15, 16 & 17]

From the terms and conditions of the agreement, it is evident that the appellant was undertaking promotion and marketing of the goods manufactured by the foreign manufacturer, M/s. VIASYS International Corporation and also installation services, warranty services, advertising services etc. for the foreign principal. These services can be rendered by the appellant only within the territorial jurisdiction assigned which is in India and by the very nature of the services rendered, it is clear that the services were used within the territory of India ….para 7

Period from 15/03/2005 onwards the Export of Service Rules, 2005 provided that a taxable service shall be treated as ‘export of service' only if such service so ordered is delivered outside India and used in business outside India - in the instant case, the service of promotion of marketing of goods manufactured by the supplier has taken place in India and the said service is for the purpose promoting the business of the foreign manufacturer in India - it cannot, therefore, be said that the service has beendelivered outside India and used in business outside India - activity does not come within the scope of export of service during the period from 15/03/2005 to 18/04/2006 ….para 9

For period from 19/04/2006 to 28/03/2007, the Rules provided that any taxable service shall be treated as ‘export of service' when the following conditions are satisfied, namely, (a) such service is delivered outside India and used outside India and payment for such service provided outside India is received by the service provider in convertible foreign exchange - in the case on hand though the condition of receipt of payment in convertible foreign exchange is satisfied, the conditions relating to delivery of service outside India and the use of the service outside India are not satisfied because the promotional activity undertaken by the service provider is in India and it can be used only in promoting the business in India - the use of service, therefore, is not outside India – same position prevails for the period up to 05/12/2007 ….para 9.1

As regards the appellant's reliance of the Board's circular issued in 2009, the Board has further clarified the matter vide circular No.141/10/2011-TRU dated 13-5-2011 which makes it very clear that to be considered as "used outside India", the effective use and enjoyment should be outside India. In the case of promotion/marketing of goods/services in India, which promotes the business in India of the client (who is located outside India), can it be said that the effective use and enjoyment is outside India. In our considered view, such an interpretation would be totally irrational and illogical ….para 11.

Elucidation of the economic concept of service tax by the apex court in All India Federation of Tax Practitioners [ 2007-TIOL-149-SC-ST ] makes it abundantly clear that to make the service activity leviable to tax, the services should be rendered in India - In the instant case, the service rendered is promotion/marketing of the goods of the client in India by rendering various services such as demonstration, installation, after sales warranty and advertising services for which the appellant received a consideration. These activities are rendered in India and their effective use and enjoyment are in India and therefore, the benefit of the services rendered also accrue in India and hence leviable to service tax ….para 12

The Export of Service Rules owes it origin to General Agreement on Trade and Tariff. In the 8 th round of the GATT (Uruguay Round) - Thus only when the user and the use of the service are located outside India, the transaction amounts to export and not otherwise ….para 13

Limitation - The agreement itself contains a clause relating to "Responsibility for Taxes

and Duties" - the said clause in the agreement itself should have alerted the appellant about their tax liability and they should have taken appropriate steps to ascertain their liability either from the department or from experts on the subject. Further it is on record that the appellant is registered with the Service Tax Department for other services such as maintenance and repair and installation during the relevant period. Therefore, it cannot be said that they were ignorant of the provisions of law relating to service tax. They did not disclose to the department about the existence of the agreement with VIASYS and receipt of consideration towards the service rendered. These acts of the appellant clearly constitute suppression of facts on their part, thereby attracting the invocation of extended period of time for demand of service tax ….para 15

As regards the demand of service tax for the period from 01.07.2003 to 19.11.2003, it has been clarified in Board's Circular no. 56/5/2003 dated 25.04.2003 that "Service Tax is a destination based consumption tax and it is not applicable on export of services. Export of services would continue to remain tax free even after withdrawal of notification no. 6/99-ST dated 09.04.1999 …para 3.2



CCE, Hyderabad Vs M/s Modi Motors (Dated : January 27, 2012)

Service Tax – Credit of Service Tax paid on Input services – Eligibility of Service Tax paid on transportation charges, Pre-delivery inspection charges, warehousing charges as Input Service – Authorised Service Station can take credit of such services as the said services are attributable to the activity of the Authorised Service Station (Para 4).

Service Tax – Limitation – the issue of admissibility of service tax credit is a question of interpretation – invocation of extended period would not be correct (Para 4).


M/s Shakthi Hanuman Taxi Service Vs CCE, Visakhapatnam (Dated : February 14, 2012)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay tax under rent-a-cab service by appellant – Tax liability not contested before adjudicating authority – No financial hardship claimed or pleaded in the application for waiver of pre-deposit – Pre-deposit of Rs. 1 lakh ordered


CCE, Raigad Vs M/s Preeti Logistics (Dated : June 14, 2012)

Appeal filed in time by Revenue before CESTAT - Miscellaneous Application filed for placing documents to the effect that Review Order based on which appeal was filed

was earlier passed by wrong Committee and now being rectified by placing order passed by the correct Committee - technical error hence rectifiable - application allowed and decision of Review Committee taken on record: CESTAT [para 3]


M/s Lintas India Pvt Ltd Vs CST, Mumbai-II (Dated : July 3, 2012)

ST - Advertising Services - Amount of "Write backs" viz. amount retained by paying less to the media than that received from client is prima facie chargeable to Service Tax – pre-deposit ordered of Rs.34 lakhs – ST prima facie not leviable on “Volume discounts”: CESTAT [paras 6 & 7]



M/s Shiv Shakti Tradelink Pvt Ltd Vs CST, Ahmedabad (Dated : April 27, 2012)

Service Tax - Refund - Services utilised in export of goods - Matter remanded to the original authority to consider the matter afresh by considering the refund claims submitted by the assessee in light of the precedent judgments in the matter. (Para 2)


M/s Ascent Fine-Chem Ltd Vs CST (Dated : April 20, 2012)

Service Tax - Import of Service - Stay / Dispensation of pre-deposit - Service from person located abroad has been received prior to 18-04-2006. Prima facie service received is not taxable. (Para 5)

Service Tax - Banking and Financial Services - Amount deducted by foreign Bank -Stay / Dispensation of pre-deposit - Assessee submits that the reason for deduction of certain amounts by the bank is not known and it is not possible to identify whether amount was deducted for rendering any service or for some other reason. As the issue is complicated and requires consideration of statutory provisions and the banking practices, stay granted . (Para 6)


Crown Products Pvt Ltd Vs CCE, Nashik (Dated : April 20, 2012)

Appellant, a merchant exporter of food grains, paid Service Tax on GTA services and claimed refund in terms of Notfn. 17/2009-ST – denial of refund on ground that they ought to have availed exemption under Notfn. 33/2004-ST and hence what has been paid is deposit is not proper – section 5A(1A) of the CEA, 1944 has not been made applicable to ST – law does not prohibit payment of ST on exempted services – Appeal allowed with consequential relief: CESTAT [paras 8.1, 8.2 & 9]



M/s BASF India Ltd Vs CCE, Mangalore (Dated : February 3, 2012)

Central Excise – CENVAT Credit – Eligibility of Cenvat credit of duty paid on service provider for providing services of watering of lawns, bougainvilleas, creepers, shrubberies and shadow trees, keeping them neat by regular planting and replanting and trimming and pruning etc. inside of appellant's factory premises – Landscaping of factory or garden certainly would fall within the concept of modernization, renovation, repair, etc. of the office premises - Credit of Service Tax paid on such service is admissible (Para 2 & 3).


M/s DCM Shriram Consolidated Ltd Vs CCE, Jaipur-I (Dated : May 15, 2012)

Central Excise - CENVAT - Input Service - Stay / Dispensation of pre-deposit -Catering service for providing canteen facility to workers, maintenance of lawns and gardens in factory as per requirement of Pollution Control Board and maintenance of cycle stand for workers within the factory are admissible input service and credit is available. However, maintenance of guest house has no nexus with the manufacturing activity and appears that input credit is not available. Pre-deposit ordered to this extent. (Para 6)


M/s One Advertising & Communication Services Ltd Vs CST, Ahmedabad (Dated : April 26, 2012)

Service Tax - Advertising Service - CENVAT - Input Service - Penalty - Service Tax paid on welfare activity are not admissible as CENVAT Credit. Hence credit on Pathological laboratory service denied. It is not shown that the catering service is for business promotion and hence credit denied. Service Tax paid in respect of Hotel rent for the stay of Chief Executive for the purpose of business and meeting the clients is eligible for credit. It is shown that Decorator service is received for promotion of business, hence credit allowed. Penalty imposed set aside under Section 80 as it is a matter of interpretation of definition of input service and no malafides brought on record. (Para 4 & 7)


Shri Abdul Hassan Vs CCE, Meerut (Dated : March 29, 2012)

Service Tax - Appeal to Tribunal - Date of service of order - Limitation on Appeal -Natural Justice - Report of the Assistant Commissioner about service of the order-in-original on the assessee which is relied upon by the Commissioner (Appeals) not provided to the assessee to offer his comments. Matter remanded to the Commissioner (Appeals) with a direction to provide copy of the report of the Assistant Commissioner to the assessee and decide the issue afresh. (Para 5)


CCE, Bangalore Vs M/s Mavenir Systems Pvt Ltd (Dated : February 8, 2012)

Service Tax – Refund – Refund of Service Tax in terms of Rule 5 of CENVAT Credit Rules, 2004 – Revenue filed an appeal on the ground that the case was remanded to the original authority by the Commissioner (Appeals) without the power of remand –Held that : A c lear nexus was found between the output service and each of the input services and accordingly refund of the CENVAT credit taken on the input services was held to be admissible in principle - It is for the limited purpose of quantification of the amount for refund in terms of the Board's Circular Dt. 19/01/2010 that the case was remitted to the original authority - This action of the appellate authority cannot be characterized as remand - The appellant has merely asserted that there is no nexus between the input services and the output service, without any effort to substantiate the claim - Therefore, the appeal is bound to fail on merits as well (Para 5 & 6).


Skoda Auto India Pvt Ltd Vs CCE, Aurangabad (Dated : June 15, 2012)

ST - Intellectual Property Services – Technology Transfer agreement – during pendency of SCN issued in November, 2005, appellant paid Service Tax of Rs.5.42 Crores along with interest of Rs. 58.79 lakhs – after decision in Indian National Ship Owners Association = ( 2008-TIOL-633-HC-MUM-ST ) appellant filed refund claim of interest – although service tax is not leviable the appellant did not claim refund of Service Tax which implies that they have admitted ST liability and once they have admitted the same and taken credit of the same, interest is required to be paid thereon – refund claim rightly held to be not maintainable – Appeal dismissed: CESTAT [paras 6, 7 & 8]


CCE, Visakapatnam Vs M/s Tokyo Colour Lab (Dated : January 27, 2012)

Service Tax - Photography Services - Under valuation - Difference in taxable value shown in ST-3 returns vis-a-vis Income Tax returns filed for the years 2003-04 & 2004-05 by the respondent - Revenue filed appeal on the ground that the Commissioner (Appeals) could not have remanded the matter to the original adjudicating authority - Having examined the records for 2003-2004 and setting aside the demand, the proper course for the Commissioner in this case was not to remand the matter but to decide the issue finally and if the assessee had failed to produce the documents and evidences before the original authority as well as Commissioner (Appeals), an opportunity could have been given to them and thereafter the matter decided finally - There is no justification for the remand order passed by the learned Commissioner (Para 2).


M/s Vinayaka Securities And Detective Agency Vs CCE, Mangalore (Dated : June 22, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Appellant, a security service provider did not pay service tax on services provided to 100% EOU, Corporation Bank and KPCB with a bonafide belief that tax was not payable – As entire amount of tax was deposited, pre-deposit of interest and penalty waived


S Z Dhanwate Engineering Works Vs CCE, Nashik (Dated : March 21, 2012)

ST - Since issue involves classification of service as well as valuation, matter is beyond the competence of Single Member Bench – Registry directed to place appeal and Stay application before Division Bench: CESTAT


Hindustan Coca Cola Beverages Pvt Ltd Vs CC, CE & ST, Hyderabad (Dated : February 03, 2012)

Service Tax – CENVAT Credit - Eligibility or otherwise of benefit of CENVAT credit of Service Tax paid on GTA Service, Tyre Retreading Service and shifting of household articles of employees - As regards benefit of credit of service tax with regard to GTA service, the issue is settled by the decision of the High Court of Karnataka in the case of ABB Ltd. – Credit allowed - Revenue Appeal Rejected (Para 4.1)

Service Tax – CENVAT Credit – Shifting of household articles of employees - the issue is covered against them by the decision of the Tribunal in their own case and demand for service tax is upheld (Para 4.2)

Service Tax – CENVAT Credit – Tyre Retreading Service - it is part of vehicle maintenance and therefore the benefit of service tax credit has to be allowed (Para 4.2)


M/s Malayalam Communications Ltd Vs CCE & CC, Thiruvananthapuram (Dated : July 21, 2011)

Service Tax – Appellant engaged in provision of service of broadcasting service and failed to pay service tax even as per their returns resulting in recovery proceedings –Demand notice issued after officials during their visit to appellants premises found discrepancy in value declared in returns as against income shown in balance sheets –It is not in dispute that appellant has not furnished correct amount of service chargesin their returns – No dispute that service tax demand was in accordance with claim made by appellants supported by year wise calculation charts – Burden to prove claim of CENVAT credit benefit on assessee by producing relevant documents –Commissioner allowed benefit wherever documents were found to be satisfactory –Further claim of Rs. 4 lakhs not acceptable – Claim of appellant that failure to declare correct amount of service charges was due to crash of software not convincing – It is on record that even where they have collected service tax, they failed to deposit the tax – Impugned order confirming tax demand with interest and imposition of penalty justified


Fashionage Corporation Pvt Ltd Vs CST, New Delhi (Dated : February 8, 2012)

Commission paid to foreign service provider – before enactment of s. 66A of FA, 1994 on 18.04.2006 no authority vested by law to levy service tax – so also since commission remained unpaid on 31.03.2006, the same too would not be within the purview of the demand – cum-tax benefit also requires consideration – no penalty for the period prior to 18.04.2006 - Matter remanded: CESTAT [paras 4, 5, 6, 7 & 8]



M/s Pioneer Services Vs CST, Chennai (Dated : March 20, 2012)

Service Tax – Custom House Agent Service - Valuation – CMC charges are includable in the taxable value – According to Rule 5(1) of Service Tax (Determination of Value) Rules, 2006, any expenditure or cost that are incurred by the service provider in the course of providing taxable service are to be included in the value of the taxable service for the purpose of charging service tax.

Limitation - The appellants never disclosed the fact that CMC charges are recovered from their customers in the ST-3 returns in which the statutory returns are filed by the assessee, wherein there is a separate column in which the assessees have to show the reimbursable expenses – Demand under extended period upheld.


M/s Dhrangadhra Chemicals Works Ltd Vs CST, Bhavnagar (Dated : June 12, 2012)

Service Tax – GTA Service – Eligibility of Notification No. 32/2004-ST dated 03.12.2004 which provides for 75% abatement of the gross value of the transportation charges incurred subject to condition that the CENVAT is not availed by the said transporter - the adjudicating authority has confirmed the demand on the ground of non production of declaration for non availment of CENVAT credit – The contention of the appellant that they are now able to trace out such declarations and are in a position to produce such declarations - If the contention of the Ld. Counsel has to be accepted then in this case the evidences need to be produced before the adjudicating authority who may consider the same in proper perspective – Matter remanded for fresh consideration (Para 5).


M/s Thermax Instrumentation Ltd Vs CCE, Pune-I (Dated : June 28, 2012)

CESTAT granting unconditional waiver of pre-deposit of Interest and Penalty on the submission made by the appellant that they had paid the entire amount of Service Tax demand of Rs.18 Crores – on verification, it was found that only Rs.6 Crores had been paid – Order recalled and appellant directed to pay balance amount of ST along with 25% penalty – Contempt proceedings initiated for misleading the Bench: CESTAT [paras 4 & 5]



M/s Steel Strips Wheels Ltd Vs CCE, Chandigarh -II (Dated : July 2, 2012)

Port service and Terminal handling service charges are incurred in the course of export and hence eligible for cenvat credit as Input service – variation in the name of CHA in the bills issued – since appellant has not come out with clean hands evidencing the relation of service provider and service recipient, refund correctly denied on this count – Appeal partly allowed: CESTAT [para 4]


M/s Bihari & Company Vs CCE & CC, Jaipur-II (Dated : May 28, 2012)

Service Tax - Service of Adjudication Order - Dispatch by Registered post -Presumption of service - Sending the adjudication order at correct address by registered post is sufficient compliance of Section 37C of the Central Excise Act, 1944. Presumption of service shall be in favour of the public officer acting in good faith. (Para 2 & 3 )


M/s mPORTAL (India) Wireless Solutions (P) Ltd Vs CST, Bangalore (Dated : June 23, 2011)

Service Tax – Application for ROM filed by assessee – Appellant contended that observation of Tribunal in para 5(iii) of the order is wrong in view of the fact that as a 100% EOU assessee, assessee is deemed to have been registered – Once assessee is deemed to have been registered, claim of refund could not have been rejected on the ground of non-registration – As per appeal memorandum and also orders of lower authorities, all along assessee had claimed that even without registration refund claim has to be entertained – No claim made at any stage including the Tribunal that assessee was deemed to have been registered and therefore claim cannot be rejected on the ground of non registration – No error apparent in the order of Tribunal – ROM application filed by assessee rejected

ROM Application filed by revenue – Revenue contends that Tribunal's conclusion in para 5(ii) that limitation under s. 11B not applicable is not correct – Since Tribunal decision in Global Energy Food Industries - 2010-TIOL-337-CESTAT-AHM wherein it was held that provisions of s. 11B are not applicable to refund of CENVAT Credit was based on decisions of two High Courts and the impugned Tribunal order followed Global Energy Food Industries decision ibid, no error apparent on record


M/s Handa Refrigeration Vs CCE, Gurgaon (Dated : June 27, 2012)

Input service - Service tax is not commodity taxation but only upon providing taxable service - Once reasons are not stated in the adjudication order to confirm the demand proposed by show cause notice, such adjudication is bad – ill-reasoned order of both the lower authorities fails to sustain under law – appeal allowed: CESTAT [paras 7, 8 & 9]


Denso Haryana Pvt Ltd Vs CCE, Delhi-III (Dated : May 22, 2012)

Service Tax - Intellectual Property Service - Demand - Use of technology to manufacture goods - Stay / Dispensation of pre-deposit - Assessee claims that one time transfer of the technology shall not amount to intellectual property service. It appears that use of technology every day is fetching royalty to the technology imparter on the basis of quantum of output manufactured. As this aspect requires

extensive consideration, pre-deposit waived and stay granted.

ALTERNATE VIEW - Transfer of technical knowhow took place when it was not a taxable service and consideration was paid when the activity became taxable. Service tax being on the service rendered the liability has to be determined with reference to the time when activity took place and not with reference to the time when payment is taking place. Prima facie case made out for grant of stay. (Para 4 & 8)


M/s Mohan Tyre Retreading Works Vs CCE & CC, Visakhapatnam-II (Dated : January 10, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay tax under Maintenance or repair service for the activity of retreading of used tyres – Tribunal in Speedwats Tyre service case = ( 2008-TIOL-2554-CESTAT-DEL ) categorically held that retreading of tyres will fall under Maintenance or repair service - No prima facie case for full waiver of pre-deposit – Pre-deposit of Rs. 18 lakhs ordered


M/s Nikunjam Constructions Pvt Ltd Vs CC, CE & ST, Thiruvananthapuram (Dated : July 25, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of service tax for construction of residential complex – Appellants claim that they are selling ready built flats to customers – Perusal of agreements prima facie do not support this claim – No prima facie case for full waiver of pre-deposit – Pre-deposit of Rs. 7 lakhs ordered


M/s R K Paliwal Vs CCE, Kanpur (Dated : January 12, 2012)

Service Tax – Clearing and Forwarding agent service - The activity of financing the price of coal got by the various persons and arranging the transportation of the same by paying the freight and arranging the issuance of railway receipts etc. cannot be held to be activity covered under the category of clearing & forwarding agent -Inasmuch as the appellants were subsequently registered under the 'business auxiliary service' w.e.f . 1.9.04, Revenue cannot contend that prior to said registration, they were providing clearing & forwarding agent services – Impugned order set aside.


CST, Kolkata Vs M/s Gujral Distributors (Dated : June 7, 2012)

Service Tax – Rent-a-cab operator service – Penalty under Section 78 – The respondent assessee supplied cabs to another cab operator and was under the impression that service tax was not required to be paid by them – However, service tax along with interest was paid before the conclusion of adjudication proceedings –No infirmity in the order of Commissioner (Appeals) waiving the penalty under Section 78 – No merit in revenue's appeal.


M/s Sinhal Engineering Enterprises Vs CCE, Bolpur (Dated : June 29, 2012)

Once the order confirming service tax has been set aside by the Commissioner (A), penalty cannot be imposed in revisionary proceedings – there is no evidence produced by Revenue that the said o-in-a has been challenged – revision order set aside and appeal allowed: CESTAT [para 6]


M/s Bhogilal Chhagulal And Sons Vs CCE, Ahmedabad (Dated : May 10, 2012)

ST - Difference in figures of Receipts shown in IT return and ST-3 return – for the same period after CERA conducted Audit and pointed out short payment, Internal Audit party did reconciliation and worked out a lower demand which the appellant paid along with interest – in such a situation duplication of demand by confirming SCN based on CERA objection is not warranted – Matter remanded: CESTAT [paras 4 & 5]



Hindustan Coca Cola Beverages Pvt Ltd Vs CCE, Meerut-II (Dated : July 2, 2012)

Input Service distributor - Mere filing of documents shall not ipso-facto grant relief to claimant - Once the facts and circumstances of the case bring out the identity of the recipient of service, denial of cenvat credit may cause absurdity when claim is otherwise permissible - there is no evidence to prove that the transport facility was used either for manufacture or in relation to manufacture or providing output service -In absence of nexus and integrity, denial of cenvat credit proper: CESTAT [paras 8, 9, 10 & 11]


M/s Kisan Sahkari Chini Mills Vs CST, Noida (Dated : May 22, 2012)

Service Tax - Goods Transport Service - Demand for the period 1997-98 -Maintainability of - Demand raised in 2004 for the short levies that arose in 1997-98 not maintainable. (Para 13)


Kelhin Fie Private Ltd Vs CCE, Pune (Dated : April 20, 2012)

Cenvat Credit - Outdoor Catering service - once the service tax is borne by the ultimate consumer of the service, namely, the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer – law which prevails is that enunciated by the High Court in case of Ultratech Cement Ltd. (2010-TIOL-745-HC-MUM-ST) – appellant has not made out a prima facie case - Pre-deposit ordered: CESTAT [para 6.2]


M/s T A Pai Management Institute Vs CCE, Mangalore (Dated : May 8, 2012)

Service Tax - appeal against revision orders passed by Commissioner after 19.8.2009 - Appealable to Tribunal: the institution of revisionary proceedings by the Commissioner through issuance of show-cause notice under Section 84 of the Act carried with it the implication that the right of appeal then in force was preserved to the assessee till the rest of the career of the said proceedings and, accordingly, the right of appeal which was in force under Section 86 (unamended) of the Finance Act on the date of institution of the revisionary proceedings remained with the assessee through the entire course of the proceedings. The order passed by the Commissioner in such revision proceedings under the old Section 84 of the Act would be appealable to this Appellate Tribunal as if the words and figures "or section 84" had not been omitted from sub-section (1) of Section 86 of the Act.



M/s Bharti Airtel Ltd Vs CCE, Delhi (Dated : May 15, 2012)

Service Tax - Telephone Service - Valuation - Sale of SIM Card - Limitation - During the period under dispute, the law was evolving regarding the levy of service tax / sales tax on the sale of SIM cards. Based on the overall appreciation of the evolution of law, the show cause notice is time barred. (Para 6)


M/s SAIL Vs CCE, Ranchi (Dated : June 18, 2012)

Service Tax – Stay/Dispensation of pre-deposit - Service to self – Appellant, a unit of SAIL is providing service to the SAIL – Prima facie case made out for waiver of pre-deposit.


Gupta Coal Field & Washeries Ltd Vs CST, Nagpur (Dated : April 12, 2012)

Section 73(3) of the Finance Act, 1994 - it is a mandate of the Act that if any assessee does not pay service tax in time and does not file the return in time, but later on, on their own ascertainment they pay service tax along with interest and file the return and inform the department in writing, in that case show cause notice is not required to be issued - there is no merit in the order qua imposition of penalty -penalty set aside: CESTAT. [paras 6 & 7]


M/s Modern Laminators Ltd Vs CCE, Allahabad (Dated : June 20, 2012)

Appellant availing Cenvat Credit of Service Tax shown on invoices as paid by transport company - whether transporter has paid ST although as per rule 2(d)(v) of STR, 1994 he was not supposed to pay is to be ascertained after verification - Matter remanded: CESTAT [paras 7 & 8]



M/s Rahul Trade Links Vs CCE, Rajkot (Dated : May 11, 2012)

Service Tax – ROM – Scope of – Penalty under both section 76 and 78 upheld by the Tribunal – Case law referred in ROM was not cited before the Tribunal and the same was not available at the time of hearing the appeal - Under these circumstances, if the decision was not cited and the conclusion has been reached on the basis of submissions made, it cannot be said that there is an error apparent on the face of order.


ASE Capitals Vs CST, Ahmedabad (Dated : June 12, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Demand of service tax on the NSE/BSE transaction charges and De-mat charges – Pre-deposit waived in view of the ratio of the appellant's own case.


M/s Alliance Builders And Contractor Ltd Vs CCE, Meerut-II (Dated : June 13, 2012)

ST - Accounting Standard (AS) 7 standard is for ascertaining the profit and loss of a construction company and does not straight away reflect the position of receipt of payments which is the relevant factor for paying service tax - Amounts received against taxable activities can be arrived at only if the accounts are examined by a person having some knowledge about accounting methods – amount confirmed without due diligence – Pre-deposit waived and Stay granted: CESTAT [paras 6, 7 & 8]



M/s Aqua Master Clean Vs CST, Ahmedabad (Dated : June 12, 2012)

Service Tax – Cleaning services – Plea that part of the income received from cleaning of non-commercial buildings like Hospitals etc - The impugned order does not talk about the details of hospitals, religious and charitable institutions and non commercial concerns for coming to a conclusion whether these institutions are excluded from the definition of service – Matter remanded as the issued needs reconsideration of all the pleas raised by the appellants.


M/s National Consultancy Services Vs CST, Ahmedabad (Dated : June 11, 2012)

Service Tax – Consulting Engineer Service – Commissioner (Appeals) dismissed the appeal for non-compliance with the pre-deposit order – Since the appellant has made out a prima facie case for waiver of pre-deposit, matter remanded to the Commissioner (Appeals) to decide the issue on merits without insisting on any pre-deposit.


M/s Sunshine Pavings Pvt Ltd Vs CCE, Pune-III (Dated : May 2, 2012)

Construction/repair of road is prima facie not classifiable under the category of ‘Management, maintenance or repair services' – pre-deposit waived and stay granted: CESTAT [para 2]


Lykes Line Ltd Vs CST, Mumbai-I (Dated : May 3, 2012)

Notfn. 32/2004-ST – payment of ST on reverse charge mechanism - a consolidated declaration by transporter that they have not availed Cenvat credit and the benefit of notfn. 12/2003-ST is sufficient to comply with the condition of the notification -abatement of 75% from gross value of service received from transporter is available –Prima facie strong case for waiver of pre-deposit: CESTAT [para 3]


Faizan Shoes Pvt Ltd Vs CST, Chennai (Dated : December 16, 2011)

Service Tax – Refund of Service Tax on services utilised for export of goods – The clause relating to non-availability of drawback as well as the time limit for claim of refund is amended prior to the date of filing of refund claims. The amended provisions will apply even though the exports were made prior to the amendments. (Para 5)


M/s Reuters India Pvt Ltd Vs CCE, Mumbai-I (Dated : March 1, 2012)

Service has been provided during the period from 14 th May, 2003 to 30 th June, 2003 when applicable rate of service tax was 8% - invoice for the quarter April, 2003 to June, 2003 raised in April, 2003 itself when rate was 5% - it is not the question when the invoices were raised – service tax correctly demanded – since appellant under bonafide belief that they are liable to pay tax on the basis of invoices, benefit of section 80 given in the matter of imposition of penalty: CESTAT [paras 3 & 4]


M/s Sharon Engineering Services Vs CCE, Nagpur (Dated : March 20, 2012)

Appellant rendering services of ‘Maintenance and Repair' and recovering service tax from their customers but defaulting in payment to exchequer – appellant is a small service provider not having any separate set up to assist in filing of returns, assessment of tax and procedural requirements of law – demand upheld along with interest but penalty under one of the sections 76 or 78 would suffice as appellant is a small service provider – penalty upheld u/s 78 of FA, 1994 – since facility of paying penalty @25% has not been extended, appellant given the said option – appeal disposed of: CESTAT [paras 6.1, 6.2 & 7]


Diksat Transworld Ltd Vs CST, Chennai (Dated : January 23, 2012)

Service Tax – Programme Producer – Demand – Stay / Dispensation of pre-deposit –Assessee submits that programmes were recorded by them and were telecast in TV channels. Prima facie, this submission alone brings them to the scope of programme producing status meaning the programme meant for general public and that having been disseminated by a transmission in electronic media, the service assumes character of taxable service in the eyes of law. Pre-deposit ordered. (Para 3)


Godfrey Phillips India Ltd Vs CCE, Mumbai-I (Dated : June 6, 2012)

ST - Franchise Service – supplying ingredient required for the preparation of beverages etc. which is in their brand name - applicants have not restricted their clients from selling similar beverages or other beverages from their premises - Prima facie demand prior to June, 2005 is not sustainable – since applicant has given representational right to sell or manufacture goods, after amendment in definition on 16.06.2005, they are liable to pay Service Tax – Pre-deposit ordered: CESTAT [para 5]


Jet Airways (India) Ltd Vs CCE, Mumbai-I (Dated : February 29, 2012)

ST - Providing air transport, transportation from airport to hotel and back to airport, room accommodation in hotel are prima facie not covered under the category of ‘Tour Operator Services' - Pre-deposit waived unconditionally and stay granted: CESTAT [para 3]


Jetking Infotrain Ltd Vs CCE, Nagpur (Dated : February 28, 2012)

ST - Appellants are engaged in the activity of commercial coaching and training services i.e. computer training – during the period 10.09.2004 to 31.03.2005, appellants are liable to pay Service Tax – issue no longer res integra – Appeal dismissed: CESTAT [paras 4 & 5]


M/s Neha Enterprises Vs CCE, Pune-I (Dated : June 1, 2012)

Fraud played by Consultant – Service Tax not deposited into treasury but bogus bank challans prepared by Consultant – since applicant has collected Service Tax it does not mean that they are not liable to pay the tax if the Consultant fails to make payment –applicant cannot take shelter under section 80 of the FA, 1994 – Pre-deposit ordered of 25% of penalty: CESTAT [paras 4 & 5]


Ultratech Cement Ltd Vs CCE, Nagpur (Dated : March 5, 2012)

Certification of pollution level in factory premises - Service Tax paid on services of environmental monitoring and water sample analysis is an Input Service: CESTAT [para 5]


Synergic India Pvt Ltd Vs CST, Pune–III (Dated : February 21, 2012)

Appellant manufacturing solar water heater system and installing the same at the premises of customers – activity of installation is chargeable to Service Tax under the category “Erection, Installation and Commissioning Service” – although appellant not charging installation charges separately, but for installation activity they are liable to pay service tax – for quantification of service component, matter remanded to original authority: CESTAT [paras 6 & 7]


M/s Harsh Constructions Vs CCE, Surat (Dated: June 7, 2012)

Service Tax – Plea that the main contractor has discharged the service tax liability –Matter is remanded to the Adjudicating Authority to reconsider the issue in the light of earlier order of the Tribunal involving the same dispute.


Suvichar Construction Vs CC, Nagpur (Dated: May 28, 2012)

ST - Applicant engaged in activity of construction of residential complex for various government authorities – same were distributed among the poor people for their residence either on some nominal charge or free of cost - Prima facie, applicant liable to pay service tax – Pre-deposit ordered of Rs.20 lakhs: CESTAT [para 4]


ITC Ltd Vs CST, New Delhi (Dated: January 23, 2012)

Service Tax – Man-power recruitment or agency service - the applicants are deputing their manager/employees to hotels run by the subsidiaries/associate companies on deputation and the cost is recovered on the basis of actual and are not retaining any amount out of the cost recovered from the hotels run by subsidiary/associate companies. Prima facie, it cannot be said that the applicants are engaged for supply of manpower or as an agency - the applicants have made out a strong case for waiver of pre-deposit


Welspun Maxsteel Ltd Vs CCE, Raigad (Dated : May 23, 2012)

Repair and maintenance services provided in the residential colony of employees –since these are in the nature of welfare activity, therefore, the assessee is not entitled for input service credit – applicant has failed to make out a case for waiver - pre-deposit ordered: CESTAT [para 5]

AP High Court decision in ITC Ltd., Paper Boards & Speciality Papers Division - 2012-TIOL-199-HC-AP-ST contrary to Bombay HC decision in Manikgarh Cement 2010(20)STR 456(Bom) – since Bench is within the jurisdiction of Bombay HC, Manikgarh decision followed: CESTAT [para 5]


Welspun Maxsteel Ltd Vs CCE, Raigad (Dated : May 23, 2012)

Services of repair, maintenance and manpower recruitment services which are related to tugs and barges which are used for transportation of the goods to the mother vessel at the jetty – prima facie case in favour as these services have been availed as a manufacturer in the course of their business – Bombay HC decision in Ultratech Cement - (2010-TIOL-745-HC-Mum-ST) shall prevail over the Tribunal decision in Vikram Ispat - (2010-TIOL-900-CESTAT-Mum) as the same has been rendered later –Pre-deposit waived and stay granted: CESTAT [para 5]


Mirc Electronics Ltd Vs CCE, Thane-I (Dated : February 29, 2012)

Input Service - Cenvat credit of Rs. 2.59 Crores taken of Service Tax paid for providing after sales service during warranty period – since applicants are under contractual obligation with customer to provide after sales service, in respect of TVs sold, during the warranty period without any consideration, activity is in relation to business – strong prima facie case in favour – Pre-deposit waived & Stay granted: CESTAT [para 5]


M/s Royal Western India Turf Club Ltd Vs CST, Mumbai (Dated : October 20, 2011)

Turf Club gets Stay of Six crores Service Tax demand – Fees charged from bookies, royalty income received from other racing clubs for live telecast of races and royalty from caterers who have been permitted to use the infrastructural facilities and to operate within the premises of Turf Club are prima facie not chargeable to Service Tax under ‘Business Support Services', ‘Broadcasting Services' and ‘Intellectual Property Rights Services' - Prima facie case made out in favour – Stay granted of adjudged dues: CESTAT [para 6]

If service tax has to be demanded and confirmed under the category of ‘Intellectual Property Right Services' both the show-cause notices as also the order confirming the demand thereon, should clearly categorize the transactions under one or more of the ‘Intellectual Property Right' which are covered under ‘Intellectual Property Right Services ‘ law - sale of television rights will not be covered under ‘Broadcasting Services' as a new service under the category of “services of permitting commercial uses or exploitation of any event organized by a person or a organization” was brought under the category of taxable services in the Budget 2010 - services rendered by the race course to the book makers will not come under the category of ‘Business Support Services” – although Tribunal decision in Madras Race Club is in the context of grant of stay and may not have precedential value, since we are also considering only the stay application, we concur with the findings - CESTAT. [para 6]



CC, Aurangabad Vs M/s Nagar Taluka Shramik Seva Sangh (Dated : April 3, 2012)

ST - Order of adjudicating authority dropping penalty u/s 76 of the FA, 1994 not challenged by Revenue before Commissioner (Appeals), therefore, same cannot be challenged by Revenue before Tribunal – Miscellaneous application dismissed: CESTAT [para 5]


The Bombay Flying Club Vs CST, Mumbai-II (Dated : June 7, 2012)

Bombay Flying Club cannot fly away from Service Tax liability – Conducting Training courses in Aircraft Maintenance Engineering and Flying School (Pilot training) & overhauling work of aircrafts is prima facie taxable under Service Tax category of "Commercial Coaching or Training Services" and "Management, maintenance and repair Services" – Pre-deposit ordered of Rs.1.50 Crores: CESTAT

ST - Commercial Coaching or Training Services – appellant imparts training in air craft maintenance engineering and flying and issues a course completion certificate. Thereafter, the students who have undertaken the course has to appear for examinations conducted by the Directorate General of Civil Aviation and on successful completion of the same, the DGCA issues/grants licence to the student under the Aircraft Act and the Rules. What is recognized under the law is the licence issued by the DGCA and not course completion certificate issued by the appellant. With that certificate, the student cannot get any employment or engage in self-employment, without clearing the examination conducted by the DGCA. Since the appellant is a charitable institution, can they be considered as a commercial training or coaching centre? Here again the answer is negative. So long as the appellant imparts training or skill in any subject or field other than sports for a consideration, the said activity would come under the purview of "commercial training or coaching". Merely because the appellant is registered as a Charitable Institution under the Income Tax Act, 1961, that does not entitle the appellant to claim exclusion from the ambit of service tax -appellant does not come under the exclusion clause of the definition of "commercial training or coaching centre"…. para 5.2

Notification No.24/2004-ST dated 10-9-2004 - on completion of the training by the appellant, the trainee cannot seek any employment or undertake self-employment directly after such training or coaching. The trainee needs to successfully complete the examination and viva voce conducted by the DGCA to obtain the appropriate licence under the Aircraft Act or the rules thereunder before seeking employment or undertaking self employment. Thus the appellant does not satisfy the definition of vocational training institute specified in the notification - "aircraft maintenance engineering or flying" does not figure in the list of 116 engineering and non-engineering trades notified by the Directorate General of Employment and Training, Govt. of India under the Apprentice Act, 1961 - prima facie the appellant is not eligible for the benefit under the aforesaid exemption…. para 5.3, 5.4

Application of AAR ruling - It is true that the decision of the AAR is binding only to the parties involved in that ruling. But when the facts involved are similar and the question for decision is identical, due consideration needs to be given to the said ruling especially considering the fact the AAR is presided by a Retired Judge of the hon'ble apex court and the other members of the authority are erstwhile members of the Central Board of Excise & Customs and Central Board of Direct Taxes. Thus the status of AAR is higher than that of this Tribunal and therefore, this Tribunal cannot ignore the ruling by the AAR in a case where the facts are similar/identical and the questions of law are identical…. para 5.8, 5.9

Stay order passed in the case of Gujarat Flying Club - While granting stay, the circulars issued by the CBEC in 2009 and 2011 on the subject matter were not brought to the notice of the Tribunal - Tribunal did not have any occasion to examine the mater in the light of the clarification given by the Board or ruling of AAR -therefore, the said decision cannot be cited as binding precedent - it is a well accepted principle that interim orders do not have any binding precedent value....para 5.10

ST - Management, maintenance and repair services - appellant's contention is that there is no written contract or agreement with the members in this regard and therefore, in the absence of such an agreement or contract, their activity is not leviable to service tax - statute does not stipulate that there should be individual or separate contract or agreement with each of the service recipient so as to bring the activity under the tax net - definition also does not stipulate that the

contract/agreement should be in writing - in the Memorandum and Articles of Association of the company, which enumerates the object for which the company wasformed, it is clearly stated that the company would provide overhauling of aircrafts belonging to the members - it cannot be said that there was no understanding as to the entitlement of overhauling of aircrafts belonging to the members - prima facie, theactivity of overhauling for a consideration comes under the purview of "management, maintenance or repair service" and is liable to service tax." … paras 5.11, 5.12

Financial hardship - appellant has not brought on record any evidence as to any financial hardship nor made any plea to the said effect - therefore, the balance of convenience lies in favour of Revenue - the appellant needs to be put to terms – Pre-deposit ordered of Rs.1.50 Crores. … para 5.14, 5.15 & 6



Maersk India Pvt Ltd Vs CCE & CC, Raigad (Dated : March 16, 2012)

Appellant functioning as custodian of bonded warehouse - Service Tax demanded on the income received from the sale of un-cleared cargo under the category of “Cargo Handling Services” and ‘Storage & Warehousing Services” – Board Circular no. 11/1/2012-TRU dated 01.08.2002 has clarified that Service Tax is not leviable on the activities of the custodian where he auctions abandoned Cargo and ST/VAT is paid in respect of that cargo – Order of Commissioner, C.Ex. set aside and appeal allowed with consequential relief: CESTAT [para 7]


CCE, Nashik Vs Mahindra & Mahindra Ltd (Dated : May 2, 2012)

Cenvat - If after sale service expenses collected by dealers are included in the assessable value u/s 4 of the CEA, 1944, the assessee is entitled for input service credit of the service tax paid thereon by dealers – Revenue appeal dismissed and appeal by assessee remanded: CESTAT [paras 5.1, 5.2 & 6]



Goel Ganga Promoters Vs CCE, Pune-III (Dated : June 5, 2012)

Service Tax - Appellant are builders/promoters and at the time of giving possession of constructed flats charge maintenance deposit from buyers - ST on maintenance deposits - in case of applicant's sister concern involving identical issue, Tribunal ordering pre-deposit of 5% of tax amount - following the same, pre-deposit ordered:

CESTAT [para 5]


M/s Banshi Municipal Council Vs CCE, Pune-III (Dated : May 10, 2012)

ST - Applicant, a Municipal Council renting Immovable property - since property rented out is not for sovereign functions, prima facie applicant has failed to make out a case for waiver of pre-deposit - Entire amount of Service Tax confirmed to be paid for obtaining Stay: CESTAT [para 4]


M/s Pam Pharmaceuticals & Allied Machinery Co Pvt Ltd Vs CCE, Mumbai - V (Dated : March 14, 2012)

Input Service - Cenvat credit taken of CHA service, freight outward services in respect of goods exported under bond - since as per the quotation and supply orders, the goods are to be cleared on CIF basis, the freight and insurance is part of the price -prima facie strong case in favour - Pre-deposit waived and stay granted: CESTAT [para 5]


Sankalp Constructions Vs CCE & ST, Kolhapur (Dated : June 7, 2012)

ST – penalty u/s 78 – ST collected from customers but not remitted to the exchequer - Only after the investigation did they pay the service tax along with interest - conduct of the appellant does not inspire any confidence about his bonafides - appellant was mis-using the tax revenues to his own advantage and depriving the exchequer and the general public of legitimate tax dues - If such a conduct is condoned, it will have undesirable consequences – Prima facie no case for invocation of s. 73(3) of FA, 1994 – Pre-deposit ordered of 25% penalty” CESTAT [paras 6.2 & 7]


M/s Piem Hotels Ltd Vs CCE, Nashik (Dated : March 12, 2012)

Applicant taking credit of service tax paid by service provider The Indian Hotels Company Ltd. under the category of ‘Management Consultancy Services' –department alleging that the classification of services provided is incorrect – it is a settled law that issue of classification is to be decided by the Commissioner of Service Tax at the end of service provider and not by the Commissioner who is dealing with the service recipient – applicant has a strong prima facie case in favour – Pre-deposit

waived: CESTAT [para 3]


M/s Port Officer - Gujarat Maritime Board Vs CCE, Bhavnagar (Dated : June 18, 2012)

Port Service - Very fact that the matter had been referred to Larger Bench would show that two views were possible – appellant is a government organization with no ulterior motives at profiteering - suppression stands attributed to the appellant on the ground that they have drafted agreement in a complicated manner with a view to evade service tax - adjudicating authority has not referred to any clear evidence indicating any malafide or suppression of facts or mis-statement with intent to evade payment of duty – against adjudged dues of more than three crores, pre-deposit ordered of Rs.25 lakhs: CESTAT by Majority



RMG Connect Vs CST, Mumbai (Dated : April 10, 2012)

Reimbursable expenses are not required to be added in the value of taxable services prior to 19.04.2006 - appellants as directed to include the reimbursable expenses for the period 19/04/2006 to 31/03/2007 and discharge the tax liability along with interest within 30 days and in case of failure the appellant shall be liable to pay penalty under Section 76 of the Finance ACT, 1994: CESTAT [para 4]


Serum Institute of India Ltd Vs CCE, Pune (Dated: March 14, 2012)

Agent having office outside India procures purchase orders for appellant on which the appellants are paying commission – service tax liability on any taxable service provided by a non-resident or a person located outside India, would not be taxable to service tax prior to 18/04/2006 – Appeal allowed with consequential relief


M/s Krafts Vs CCE, Bangalore (Dated : January 10, 2012)

Service Tax - Stay/Application for waiver of pre-deposit - Denial of benefit of exemption Notification No. 12/03-ST for goods used in the course of providing

construction service - Prima facie appellant eligible for benefit of exemption - Pre-deposit of Rs. 7 lakhs ordered in addition to Rs. 32 lakhs already paid


Gammon India Ltd Vs CCE, Thane I (Dated : April 16, 2012)

Whether Commissioner of Service Tax, Thane has jurisdiction to adjudicate the show -cause notice issued by the Commissioner of Central Excise, Mumbai – since clarification has been sought by Revenue from Law Ministry, in the interest of justice matter adjourned: CESTAT [para 3]

Application filed for taking additional ground on record is of a legal nature, hence allowed. [para 2]


CCE & CC, Ahmedabad Vs M/s GE Nuova Pignone (Dated : March 1, 2012)

Service Tax – Maintenance and Repair Service – Respondents paid Service Tax in respect of maintenance fees after deducting the value of spare parts which is permitted under Notification No.12/2003-ST dated 20.6.2003 - Revenue took a view that respondent was not eligible for exemption Notification No. 12/2003-ST to the extent of value of spare parts deducted from the maintenance charges for paying service tax - Commissioner (Appeals) set-aside the order taking a view that the respondents were providing maintenance/ repair services on immovable property and during the period from 01.7.2003 to 09.09.2004, this activity was not liable to service tax at all – Held that : the Revenue has not come up with any evidence or document to support the view that turbines is a movable property – No merit in the appeal filed by the Revenue (Para 5 & 7).



M/s Ideal Road Builders Pvt Ltd Vs CC (Dated : January 9, 2012)

National Highway Authority of India (NHAI) empowered to collect toll and not the appellant – collection of toll is for defraying the expenses of NHAI and the proceeds of toll does not go into the Consolidated Fund of India – therefore, it is not a statutory levy and NHAI was not performing a statutory function - activity outsourced by NHAI to appellant for collection of toll on their behalf - Instead of collecting the toll and remitting the same to (NHAI), the appellant has collected the toll and kept the same with themselves and paid to NHAI a pre-agreed amount towards toll collection charges – activity undertaken by NHAI is a business activity and the service rendered by appellant is prima facie classifiable under Business Auxiliary Service – Modification application dismissed and appellant directed to comply with Stay order immediately:

CESTAT [para 4]

Unless there are change of circumstances or new development that have taken place after passing the Stay order, the same cannot be modified/rectified – Modification application dismissed: CESTAT [para 4]


Group M Media India P Ltd Vs CCE, Thane-I (Dated : October 20, 2011)

Service tax is not leviable on the discounts/incentives received by the advertising agency from the media – A discount is the reduction in the price given to the buyer/receiver of the goods/services – a buyer/receiver of services cannot be considered as an agent of the seller/provider of service so as to be charged to Service Tax under the category of BAS – definition of BAS given in FA, 1994 does not warrant such a view - prima facie case in favour – Pre-deposit waived and Stay ordered: CESTAT by Majority [paras 5 & 6]



M/s Sayaji Hotels Ltd Vs CCE, Indore (Dated : April 12, 2012)

Service Tax – Stay/Application for waiver of pre-deposit – Whether value of food and beverages supplied during functions conducted in banquet halls under separate bills/invoices includible in taxable value of Mandap Keeper service – Appellants supplied food and beverages under separate bills on payment of sales tax – Prima facie case for full waiver of pre-deposit - Stay granted


M/s Advance Surfactants India Ltd Vs CCE (Dated : April 30, 2012)

Service tax - Demand based on trial balance sheet- Casual approach of the assessee before the adjudicating authorities - Stay / Dispensation of pre-deposit - The service provider did not come forward to explain his case before the adjudicating authority and no reply to show cause notice was filed followed by default during adjudication proceeding for appearance. Revenue's interest has been prejudiced due to casual approach of the service provider depriving the authority below to pass appropriate order. Pre-deposit ordered. Matter remanded to the original authority to consider the submissions of the service provider and pass fresh orders. (Para 3 & 4)


M/s Union Enterprises Vs CCE, Jamshedpur (Dated : February 27, 2012)

Service tax - Business Auxiliary Service - Sub-broker of mutual fund distributors -Evidence - Stay / Dispensation of pre-deposit - The assessees are not mutual fund distributors nor they are agents thereof. No evidence is produced that they have received commission directly from mutual fund companies being a registered mutual fund distributors. Prima facie the assessees are not eligible for exemption Notification No. 13/2003-ST dated 20.6.2003. Balance of convenience is in favour of the department. Pre-deposit of 25% of service tax confirmed is ordered. (Para 6)


M/s Jai Shakthi Engineering & Constructions Vs CCE, Rajkot (Dated : March 5, 2012)

Service Tax - Appellant engaged in providing services of fabrication of steel structures, equipment, vessels - Proceedings initiated for availing abatement of 67% of gross amount without including value of free supply materials - Issue as to whether appellant had erected only structures or major portion of work done was structures required to be examined by scrutinizing contracts, relevant records and evidences to be produced by appellants - Matter remanded to original authority for fresh consideration of issue relating to the structures and liability to pay service tax - No opinion expressed on merits


M/s Gujarat State Seeds Certification Agency Vs CCE, Ahmedabad (Dated : June 5, 2012)

Appellant, a State government entity conducting Seed testing and Certification service - since the department itself has taken a stand on 01.08.2006 that the appellant's services would not fall under the category of services of “Technical Inspection and Certification Services”, withdrawal of this letter on 27.10.2006 and invoking larger period of limitation to demand Service Tax on 13.04.2010 for the period October 2004 to March 2006 under this category seems to be not in consonance with the law –appeal allowed: CESTAT [para 9]


M/s Canara Bank Vs CST, Bangalore(Dated : May 29, 2012)

Services provided by Canara Bank in relation to payment of pension, transactions of various departments, public deposit, RBI Bonds, EPF, special deposit scheme, senior citizens saving scheme, compulsory deposit scheme are NOT taxable services - So also, the services of treasury service where the government does not have its own treasury and Canara Bank maintains currency chests on behalf of Reserve Bank of India (RBI) is also NOT a taxable service – Same functions being carried out by RBI are exempted, therefore, the benefit of exemption available to RBI would be available to the agent i.e. Canara Bank – S.Tax Demand & penalty totalling Rs.12 Crores set aside & appeal allowed: CESTAT [paras 11, 12 & 13]



M/s Sandeep Nanavati Vs CCE, Surat (Dated : April 19, 2012)

Service Tax - Stay/Application for waiver of pre-deposit - Liability to pay service tax on Commercial or Industrial Construction service - Plea of classifying the said services under ‘Works Contract' service not raised before lower authorities - With effect from 18.04.2006 in terms of Service Tax Valuation Rules, 2006 value of free supply of materials to be included in the taxable value after granting abatement under Notification No. 1/06-ST - Prima facie no case made out for full waiver of pre-deposit – Pre-deposit of Rs. 5 lakhs ordered


M/s Pioneer Services Vs CCE, Vadodara-II (Dated : March 21, 2012)

Service Tax - Liability to pay service tax under BAS - Appellant claims producing records and documents indicating that the income mentioned in balance sheet was not totally from the activity of recovery agent as borne out from CA certificate -Adjudicating authority recorded that appellant produced a CA certificate but did not give any findings thereon - Matter remitted back to original authority without expressing any opinion on merits


The Indian Hotels Co Ltd Vs CST, Mumbai-II (Dated : May 16, 2012)

ST - Applicants have taken over the activities of managing/running the Hotel themselves - If they themselves are managing the affairs of the organization, prima facie , it does not fall under the ‘Management Consultancy Service' – Pre-deposit of Rs. 8 Crores of adjudged dues waived and stay granted: CESTAT [paras 6 & 7]



M/s Professional Coaching Classes Centre Vs CST, Ahmedabad (Dated : April 13, 2012)

Service Tax - Demand of service tax with interest due to revision in rate of tax and levy of penalty - Evidences produced by appellant not considered by lower authorities

- Matter remanded

Whether individual liable to pay service tax for services rendered by him to other institutions as a visiting faculty member - Issue to be examined is whether proprietary firm and individual can be segregated for this purpose or not and whether service provided by proprietor can be considered as service provided in his individual capacity and not as an employee or representative of the firm - One of the methods that could be adopted to examine this issue is to identify if payments are made to the individual or to the firm - Matter remanded for de novo consideration


M/s Sachin Metal Coats Vs CCE, CC & ST, Daman Vapi (Dated : April 19, 2012)

Service Tax - Stay/Applications for waiver of pre-deposit - Eligibility of Notification No. 8/05-ST for job work activity - Appellant produced certificates from principal manufacturers indicating discharge of excise duty liability on products received from appellant as job worker - Appellant purchased powder for coating but raised the bills for such purchases on principal manufacturers - Activity prima facie complies with conditions of Notification No. 8/05-ST - Full waiver of pre-deposit ordered and stay granted


M/s Gujarat Petroleum Corporation Ltd Vs CCE & CC, Ahmedabad (Dated : March 6, 2012)

Service Tax – Appellant engaged in the business of exportation of oil and gas and received services from foreign service provider in r/o exploration activities in KG Basin - Liability to pay service tax on services received from foreign service provider from 12.03.2003 to 31.03.2007 – Appellants contention that wells were situated outside 12 nautical miles from the shoreline was not considered by lower authorities - Neither side has taken an expert opinion as to whether the wells are really outside India as per the procedure followed for determining such things – DGHC not a competent authority to determine such things as per their own admission – Matter remanded to original authority for determining tax liability only for the period after 18.04.2006 –No opinion expressed on merits


M/s The Mysore Sugar Company Ltd Vs Joint Commissioner Of Central Excise, Customs & Service Tax, Mysore (Dated : January 10, 2012)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on GTA service availed for transportation of sugarcane from fields to factory – Freight paid by farmers reimbursed by appellant – Prima facie case for full waiver of pre-deposit


Echjay Forgings Pvt Ltd Vs CCE, Raigad (Dated : February 28, 2012)

CHA service, port service and warehousing service are Input Services – matter no longer res integra : CESTAT [para 6]


M/s Hi-Tek Powercon (P) Ltd Vs CCE, CC & ST, BBSR-I (Dated : January 20, 2012)

Service tax - CENVAT - Credit of service tax on GTA service for outward transportation of finished goods - Stay / Dispensation of pre-deposit - The period involved in this case is prior to 01.03.2008. Credit of service tax paid on GTA service for outward transportation of finished goods is available. (Para 5 & 5.1)


M/s Arihant Construction Vs CCE, Jaipur-II (Dated : April 17, 2012)

Service tax - Demand - Construction of residential complex -Meaning of 'residential complex' - Stay/Dispensation of pre-deposit - The service provider constructed several residential quarters distributed in different buildings in the same compound. None of the buildings had more than 12 flats in each building. Revenue is of the view that the word 'complex' has to be interpreted to mean the entire compound and if the entire compound is considered as one complex, there were 17 flats constructed in the complex and therefore, service tax under the entry of construction of complexes has to be paid.

HELD - As per the definition of 'residential complex' as given at sub-section (91a) of Section 65, only building having more than 12 residential units in a building will be considered a residential complex. Precedent Supreme Court decision being in favour of the service provider, stay granted. (Para 6)


Costal Gujarat Power Ltd Vs CST, Mumbai (Dated : May 17, 2012)

Banking & Financial Services - Appellant borrowing funds under the scheme of External Commercial Borrowing from foreign lenders – commitment charges, up-front fee, arrangement fee, agency fee etc. whether chargeable to Service Tax under reverse charge mechanism - issue involves interpretation of various provisions of law such as Article 246, 253 of the Constitution of India, the various provisions of ADB and IFC Act and the provisions of United Nations (Privileges and Immunities) Act, 1947 and Finance Act, 1994 – prima facie case for full waiver of pre-deposit – Stay granted and matter referred to CBEC Chairman for opinion: CESTAT [ paras 7, 8, 9,

10 & 11 ]



Khatau Narbheram & Company Vs CCE, CC & ST, BBSR-II (Dated : March 2, 2012)

Service Tax - Refund claim for services utilized for export of iron ore fines under Notification No. 41/07-ST - Claim rejected for GTA services availed on the ground that export invoice numbers were not mentioned in lorry receipt and shipping bills as required under Notification No. 41/07-ST - Matter remitted to original authority for verification of appellants claim of use of GTA service by establishing a link between lorry receipt and export invoices and also export invoices and shipping bills


M/s Nilachal Iron And Power Ltd Vs CCE & ST, JSR (Dated : February 23, 2012)

Service tax - Business Auxiliary Services - Service of mobilisation of mutual funds units - Place of rendering service - Jurisdiction - Levy of service tax under reverse mechanism - Limitation - Stay / Dispensation of pre-deposit - The service providers are rendering their services to the distributors of various mutual fund companies and not to the Mutual Fund Companies directly. Hence, prima facie, are not strictly covered under the principle of levy of service tax under reverse mechanism . On the aspect of jurisdiction, in the case of levy of Service Tax it is difficult to ascertain where the services are rendered and where the services are received unless a finding is recorded on these facts. At no point of time the service provider has questioned or disputed the authority/jurisdiction of the department but consciously submitted to the jurisdiction of the Commissioner Central Excise, Jamshedpur. Therefore, prima facie, Commissioner, Jamshedpur has jurisdiction over the issue. There is no financial hardship pleaded. Pre-deposit of 25% of service tax confirmed is ordered. (Para 5)


M/s Sai Star Distributors Vs CST, Mumbai (Dated : May 30, 2012)

ST - Cable Operators service – Retransmitting TV signals to various cable subscribers - If the appellants have paid the service tax for obtaining signal from their service provider they are entitled for ‘input service' credit – since this issue was not raised before the adjudicating authority, matter remanded – since appellants have paid the service tax liability under the category of BAS and Renting of Immovable Property services, they are liable to pay interest also: CESTAT [ paras 3, 8, 9 & 10 ]



CST, Delhi Vs Lal Mahal Ltd (Dated : February 7, 2012)

Service Tax – Refund claim of service tax paid on services utilized for export of goods disallowed by lower authority but allowed by lower appellate authority – Appellate authority passed a reasoned and speaking order, no scope to interfere with the order


M/s Bharat Aluminium Co Ltd Vs CCE, Raipur (Dated : February 27, 2012)

Central Excise/Service tax - CENVAT - Transportation of goods for export -Transportation of goods to buyer's premises - Credit of service tax paid - The i nput services includes services utilised for transportation of goods from place of removal during the period under consideration. Hence credit allowed. Once goods are under export and transport service is availed for that purpose credit of service tax paid for transportation of the goods cannot be denied. Matter remanded to examine the evidence relating to export and to satisfy whether the transport service is related to export. (Para 6, 7 & 12)


Jet Airways (India) Ltd Vs CCE, Thane-II (Dated : April 16, 2012)

ST - Collection of Passenger Service Fees (PSF) from passengers on behalf of Airports Authority of India and depositing the same with AAI – collection charges obtained thereon from AAI is prima facie chargeable to Service Tax under the category of “Business Support Services” and not BAS – Pre-deposit of ST of Rs.1.05 Crores waived and stay granted: CESTAT [para 4]



M/s Shail Shikhar Associates Vs CCE, Meerut -I (Dated : March 20, 2012)

Service Tax – Appellants leased ropeway from Municipal Board, Mussoorie and operated to entertain tourists – Department initiated proceedings to recover service tax under the head ‘tour operator's service' – Whether the activity of appellant is to be held as covered by the definition of tour operator as appearing in s. 65 (115) of Finance Act, 1994 as held by Member (T) or the same has to be held as falling outside the purview of the said definition as held by Member (J) – Matter goes to Third

Member on reference


CC & CCE, Indore Vs M/s Hotel President Planet (Dated : April 20, 2012)

Service Tax - Denial of exemption notification no. 12/03-ST for food items sold in hotels - Appellate Commissioner extended benefit of s. 80 to waive penalty on the ground that clarifications sought by assessee from department were not responded to - Appeal memo of Revenue did not rebut this claim - No infirmity in impugned order


M/s S M Magar (Labour Contractor) Vs CCE, Kolhapur (Dated : May 30, 2012)

ST - Applicant supplying labourers to company and getting commission on which they pay Service Tax – Department seeking ST on the gross salary paid to the said employees – Pre-deposit ordered: CESTAT [para 3]



M/s BMD Pvt Ltd Vs CCE, Jaipur-II (Dated : April 16, 2012)

Service Tax – Manufacturer of automotive laminated fabrics entered into agreement with foreign service provider to provide services which includes feasibility study, identifying potential JV and business acquisition opportunities in Europe and India –Foreign service provider rendered only services of feasibility study and furnished a report for which payment was made to foreign service provider – Activity in the nature of market research agency service classifiable under s. 65(105)(y) and not taxable in India in absence of any performance in India – Revenue did not adduce evidence regarding provision of other two services, demand prima facie not maintainable –Prima facie case for full waiver of pre-deposit – Full waiver of pre-deposit ordered and stay granted


Bharti Hexacom Ltd Vs CCE, Jaipur (Dated : March 2, 2012)

Service Tax – Taxability of SIM card sale and service – Controversy in this regard finally resolved by Apex Court in Idea Mobile Communications Ltd - (2011-TIOL-71-

SC-ST) - Tax demands confirmed with interest – Penalties set aside


M/s Mangalam Cement Vs CCE, Jaipur-I (Dated : March 29, 2012)

Service Tax - Stay/Application for waiver of pre-deposit - Eligibility of CENVAT Credit of service tax paid on rent-a-cab service and outdoor catering service - No evidence provided that on the basis of number of workers appellants were required to maintain canteen complying with the provisions of Factories Act - No prima facie case for full waiver of pre-deposit - Pre-deposit of Rs. 2.5 lakhs ordered


M/s Shorewala Global Industries Pvt Ltd Vs CCE, Jaipur (Dated : February 23, 2012)

A bald order does not get sanction of law unless it is speaking and reasoned - Reading of adjudication order and appellate order does not appeal to common sense as to how liability arose - to prevent wastage of time, matter remanded to original adjudicating authority: CESTAT [paras 7 & 8]



M/s M M Aqua Technologies Ltd Vs CCE, Gurgaon (Dated : January 10, 2012)

Service Tax - Eligibility of credit of service tax paid on GTA service availed for outward transportation of goods from factory to buyer's premises - Purchase orders placed on record satisfy the conditions prescribed in Board's Circular No. 97/2007-ST and P & H High Court judgment in Ambuja Cements case - 2009-TIOL-110-HC-P&H-ST - Issue not agitated properly by appellant before lower authorities as they did not have opportunity to adduce evidence - Matter remanded and credit to be allowed if they are eligible legally - Impugned order set aside


Topland Exports Vs CCE, Rajkot (Dated : February 24, 2012)

Service Tax - CENVAT Credit availed on input services utilized for payment of service tax on GTA service – Revenue initiated proceedings to recover service tax on GTA service in cash – Since appellant is not providing output services as defined in Rule

2(p) of CCR 2004, debiting the said amount in CENVAT Credit A/c to be rectified by appellant by payment through PLA or by TR-6 Challan - If appellant discharges amount within 30 days by debiting PLA or paying through TR-6 Challan, appellant eligible to avail CENVAT Credit which he has debited, towards discharge of service tax liability – When appellant did not have any intention not to discharge tax liability and the liability was initially discharged through CENVAT Credit A/c interest and penal liability does not arise


M/s Wipro Ltd Vs CCE, Bangalore-III (Dated : January 13, 2012)

Service Tax – Stay/Applications for waiver of pre-deposit – Eligibility of CENVAT Credit of service tax paid on Renting of Immovable Property Service – Premises taken on rent used for housing their office to undertake business activities and used for distribution of CENVAT Credit on inputs and input services to manufacturing units of the company – Premises registered with service tax department as input service distributor – Prima facie , as the registered premises were used in relation to activities relating to business of manufacture of excisable goods, CENVAT credit of service tax paid on taxable service of renting of such premises, prima facie admissible – Fullwaiver of pre-deposit ordered


M/s National Productivity Council Vs CCE, Jaipur (Dated : April 20, 2012)

Service Tax - Appellant engaged in provision of scientific and technical consultancy service - Claim of abatement towards lodging & boarding expenses of participants in various conferences conducted by appellants - For an earlier period lower appellate authority held the issue in favour of appellants - In the instant case, the lower appellate Authority did not decide the issue on merits but rejected the appeal on the ground that appellants did not provide relevant details within the period of seven days as promised - Matter remanded to original authority for deciding the issue in terms of earlier order of appellate authority after examining relevant details s - Impugned orders set aside


PMP Auto Components (P) Ltd Vs CCE, Mumbai-V (Dated : May 11, 2012)

Whether air freight can be considered as an ‘input service' – An interpretation that merely because as per the terms of export contract, the goods have to be delivered at the customer's premises abroad, the place of removal is extended to a place outside India is absurd and will have unintended ramifications – terms of export contract cannot determine ‘place of removal' – contention that air freight incurred for delivery to the buyer's premises should be deemed to be ‘input service' does not stand logic –Pre-deposit ordered: CESTAT [paras 5.3, 5.4 & 6]



A Malathy, Proprietrix Vs CCE Chennai (Dated : February 1, 2012)

Service Tax – Stay/Dispensation of pre-deposit - Manpower supply service - Prima facie, the contract is for bagging and shipping operations and not for man power supply and the departmental authorities appear to have misdirected themselves for levying service tax on the appellant under the heading "Man Power Supply – Pre-deposit waived.

Outdoor catering service – Appellants admitted liability and offers to pre-deposit Rs 2 lakhs – Pre-deposit of Rs 2 lakhs to be made within 4 weeks.


U B Xpress (South) P Ltd Vs CST, Chennai (Dated : January 24, 2012)

Service Tax – Courier service – Plea that the principal courier, namely professional courier discharged service tax - The appellant could not satisfy whether it was acting as courier in substance making delivery of the consignments of the principal courier -It is therefore not possible to hold that the appellant acted as a courier without being a provider of "business support service" – Issue needs threadbare examination and also since the Larger Bench decision of the Tribunal was delivered after adjudication, matter remanded.


Chate Coaching Classes Pvt Ltd Vs CCE, Aurangabad (Dated : April 2, 2012)

Benefit of Notfn. 12/2003-ST – Commercial training and Coaching Institutes - when language of Notification does not restrict exemption only to ‘standard text books' sold, same cannot be whittled down by Board Circular 59/08/2003 -ST – Demand of Rs.2.82 Crores set aside and appeal allowed: CESTAT [paras 6 & 7]



Ranjit Buildcon Ltd Vs CST, Ahmedabad (Dated : March 6, 2012)

Service Tax - Maintenance and Repair Service vis-à-vis Works Contract - Stay / Dispensation of pre-deposit - Case of maintenance of roads for NHAI. Service provider contention is that it is a works contract and not maintenance or repair service. Stay granted in a similar case. Prima facie case made out for stay. (Para 5)


M/s Royal Challengers Sports (P) Ltd Vs CST, Bangalore (Dated : January 31, 2012)

Service Tax – Stay/Application for waiver of pre-deposit – Tax liability on amounts paid to foreign players who would play cricket in IPL under agreement with appellant-company – Appellant directed to pre-deposit 10% of tax demand


M/s Simentech Vs CCE, Jaipur-I (Dated : March 28, 2012)

Service tax - Valuation - Maintenance and Repair Service - Demand - Assessee submits that service tax has been demanded on amounts booked in their profit and loss account as value of work done, and not the amount received by them on which alone service tax is payable. Matter remanded to the original authority to examine the matter afresh having regard to the documents to be submitted by the assessee. (Para 5)


DHL Lemuir Logistics Pvt Ltd Vs CCE, Mumbai (Dated : May 16, 2012)

Expressio unius est exclusio alterius - the express mention of one thing excludes all others - explicit mention in the notification is "services provided for consumption within such Special Economic Zone" – as such, services consumed outside such zone will not be entitled for the benefit of exemption notification No.4/2004-ST - being aconditional exemption notification cannot be interpreted on the basis of the provisions of SEZ Act, 2005 or the Rules made there under – Pre-deposit ordered of Rs. One Crore: CESTAT [paras 5.4, 5.7, 5.8, 5.9 & 6]

Notification 4/2004-ST came into force much before the Special Economic Zone Act or the Rules made there under came into force - If the intention of the legislature was to align the exemption with section 26 of the SEZ Act or Rule 31 of the SEZ Rules, then notification No.4/2004-ST would have been amended to reflect the same - In these circumstances if the services are not consumed within the Special Economic zone, then the benefit of notification No.04/2004-ST will not be available: CESTAT…para 5.8

Not only that the appellant has not made out a prima facie case but also the balance of convenience and interest of revenue demand that the appellant be put to terms –appellant has not pleaded any financial hardship – Pre-deposit ordered of Rs.1 Crore…para 5.9, 6



M/s Ernst & Young Pvt Ltd Vs CST, New Delhi (Dated : June 5, 2012)

ST – Appellant providing Compliance Services - Compliance with laws is part of the responsibilities of management and such responsibility per se cannot bring it into the ambit of the words "in connection with the management of any organisation" to tax such services – view of CBEC that the ordinary meaning of management will not cover Compliance Services concurred with - If the public act relying on such circulars andstill the charge of suppression is slapped on them it can be the worst travesty of justice – appeal allowed on merits as well as on the ground of limitation: CESTAT [paras 14, 15, 16 & 17]



M/s Wardha Power Company Ltd Vs CCE, Nagpur (Dated : February 17, 2012)

ST – Refund – Notfn. 09/2009-ST - argument of the department that the service tax refund will be available only for the services rendered on or after 03.03.2009 does not appear to have any legal basis - only requirement is that ST on the services should have been paid on or after 03.03.2009 - it is immaterial when the services had been rendered - Appeal allowed with consequential relief: CESTAT...paras 6.2, 6.2 & 7

Appellant had requested the Approval Committee for approval of 53 services and in respect of 49 services they have received the approval from the Development Commissioner under Rule 10 of SEZ Rules, 2006 - in respect of these 49 services they are eligible for claiming refund under Notification No. 9/2009-ST dated 3.3.2009...para 6

Service provided in registered premises which is far away from SEZ unit - Notification makes it abundantly clear irrespective of the place where the services were rendered whether inside the unit or outside the unit, so long as the services are rendered in respect of authorized operations, the SEZ unit is entitled to claim the refund...para 6.3

Board's circular 120/01/2010-ST dated 19.1.2010 has provided for submission of C.A's Certificate certifying the co-relation and the nexus between the input/input services and the exports – Revenue's contention that the Dy. Commr. should have verified the actual use of the input services in the authorized operations is extraneous to the allegations levelled in SCN - appellant cannot be faulted for following the prescribed procedure...para 6.4



Safety Retreading Company (P) Ltd Vs CCE, Chennai (Dated : October 14, 2011)

Service Tax – Valuation – Re-treading of tyres – Maintenance and Repair Services –Service Tax paid on labour charges computed at the rate of 30% of the gross amount charged– The service provider is required to produce documentary proof specifically indicating the value of the said goods and materials so sold by them - The invoices unilaterally raised by the appellants indicating the break-up without substantiating the amount attributable to the value of the goods supplied cannot be considered as documentary proof for the purposes of Notification 12/2003 ST – Appeal rejected by majority.



C M Sapkal Vs CCE, Nagpur (Dated : February 29, 2012)

Service Tax - BAS - Applicant, a HUF, selling the readymade furniture manufactured by their principal manufacturer and earning commission on the said activity - during material period, ST was leviable on commercial concern and not on individual -bonafide belief - applicants have made a case for 100% waiver of pre-deposit - Stay granted: CESTAT [para 2]


Chowgule Industries Pvt Ltd Vs CCE, Pune-III (Dated : March 5, 2012)

ST - Applicants are authorized dealers of M/s. Maruti Udyog Ltd. and as per the agreement they had to provide three free services after the sale of the vehicles to their customers and the same has been reimbursed by the manufacturer at Rs. 160/-per vehicle - provision of free servicing is merely incidental and intended to promote the sale of the cars, therefore, no Service Tax is leviable – prima facie case for total waiver of pre-deposit – Stay granted: CESTAT [para 4]

Show Cause Notice was dropped by the adjudicating authority and the first appellate authority confirmed the demand, therefore, balance of convenience lies in favour of the applicants. [para 4]


B D Somani Institute Of Art & Fashion Technology Vs CST, Mumbai (Dated : March 28, 2012)

ST - Commercial Training and Coaching Services - Appellants are an Institute providing professional coaching in the fields of Fashion Technology, Graphic Art, Media Communication and Digital Communication - various diplomas and certificates being offered are not recognized by any law for the time being in force – since these are vocational and not academic courses, benefit of exemption notification 24/2004-ST is available – Appeal allowed: CESTAT [para 5]


Shri Diwan Rahul Nanda Vs CCE, Goa (Dated : March 6, 2012)

Service Tax - There is no provision for imposing personal penalty on the Director under the Finance Act, 1994 - Appeal allowed: CESTAT [para 2]



M/s Professional Investment Corporation Vs CCE, Madurai (Dated : February 12, 2012)

Service Tax – Penalty under Section 76 and Section 78 – Service tax not paid due to financial difficulty and the original authority has been convinced with the genuineness of the replies and submissions by the assessee – Demand was also issued for normal period only – Penalty under Section 78 is not attracted – Penalty under Section 76 is sustained – Matter remanded for quantification of penalty.


M/s Sana Engineering Company Vs CCE, Coimbatore (Dated : January 23, 2012)

Service Tax – Stay/Dispensation of pre-deposit – Erection, Commissioning or Installation Service – Prima facie, invoices issued by the applicant provide scope to appreciate that erection service was provided by the appellant to perform the contract – No prima facie case for complete waiver – Pre-deposit of Rs 25 lakhs ordered.


M/s Nihon Trading Company Vs CST, Bangalore (Dated : January 19, 2012)

Service Tax – Appeal against order passed by Commissioner as revisionary authority under s. 84 of Finance Act, 1994 – No appeal would lie to Appellate Tribunal against an order passed by Commissioner under s. 84 as appellate remedy under s. 86 against such an order was taken away with effect from 19.08.2009 – No explanation

or clarificatory provision appended to s. 86 so as to extend this remedy to a person aggrieved by an order passed under s. 84 by a Commissioner by exercising his revisionary authority – Appeal not maintainable


CCE, Hyderabad Vs Neuland Laboratories Ltd (Dated : January 6, 2012)

Service Tax – Eligibility of credit of service tax paid on stockbrokers service – It is not in dispute that shares were acquired pursuant to a MOU between respondent-assessee and another company with a quid pro quo arrangement whereby the other company would supply electricity to respondent-assessee if they invested in shares – Electricity supplied by the other company used in manufacture of final products – Facts clearly establish a nexus between stockbrokers service and manufacture of goods – Credit not deniable


CST, New Delhi Vs Orient Craft Ltd (Dated : December 13, 2011)

Service Tax - Liability to pay service tax on services received from outside India under Section 66A - No liability arises before 18.4.2006 and the issue is settled in favour of the respondents - No merit in revenue's appeal.


M/s Rambagh Palace Hotels Pvt Ltd Vs CCE, Jaipur (Dated : December 21, 2011)

Service Tax - Mandap Keeper Service - Valuation - Value of room charges booked for the purpose of marriages, conferences etc is not includable - Renting of hotel rooms cannot be held to be covered by Mandap Keeper service - Demand is not sustainable.


M/s Marathwada Engineers Pvt Ltd Vs CST, Aurangabad (Dated : February 3, 2012)

Providing of Taxable Commercial/Industrial Construction Services and exempted non-commercial construction services – availment of Cenvat Credit on common Input services – even during the year 2007-08, rule 6(5) of the CCR, 2004 entitled an assessee to avail CENVAT credit of the whole of the service tax paid in respect of specified services – restricting the same to 20% is not sustainable in law – Appeal allowed: CESTAT [paras 7, 8]



M/s A S Transport Vs CC & CE, Bangalore (Dated : January 11, 2012)

Service Tax - Stay/Application for waiver of pre-deposit - Demand of service tax under Cargo Handling service - No prima facie case in favour of appellant - Pre-deposit of Rs. 3 lakhs ordered

COD Application - Appellant-Firm's Partner being sick, appeal could not be filed in time - Medical certificate from a Government doctor produced as supporting evidence -Ground for claiming condonation justified - COD application allowed


United Telecom Limited Vs CCE, Bangalore-I (Dated : January 4, 2012)

Service Tax – Whether stockbrokers service utilized for disposal of shares held by appellant in another company eligible to be held as ‘input service' – Neither the affidavit of Working Director nor Memorandum of Association states anything to indicate that shares held in another company were sold for accomplishing any purpose integrally connected with the business of appellant – CENVAT Credit paid on stockbrokers service not available as input credit – Impugned order sustained


M/s S R Gupta & Sons Vs CCE, Jalandhar (Dated : April 9, 2012)

Service tax - Valuation - Photographic Service - Cost of Material used - Invocation of larger period - Penalty - Cost of material used in providing photographic services includable in assessable value. However, since the issue is in dispute during the period covered in the demand , extended period not invokable. Matter remanded to re-quantify the service tax payable. (Para 4)


CCE, Raipur Vs M/s Raj Wines (Dated : January 11, 2012)

Service Tax – Promotion and Marketing of Indian manufactured Foreign Liquor – The respondents are not entitled for the benefit of Notification No 13/2003 ST, exempting the commission agents from payment of service tax – Deduction of expenses from the

gross value - expenses of paying loading and unloading charges, misc promotion expense etc. on behalf of the manufacturer, salary and other expenses form integral part of the value of service rendered - In the matter of Misc. expenses like Registration fees for label or brand, the expenses is not for providing the service being provided by the respondents and if there is any proof of such expenses incurred by the respondent such amount will not form part of gross value of services – Matter remanded to the Adjudicating Authority.

Section 80 - A person giving his own interpretation of notification and then arguing that he was under the bonafide belief cannot get the protection of such section 80 -The arrangements made for claiming expenses of staff as reimbursement and claiming that it is outside the taxable value speaks of intention to evade tax – Penalty upheld, however, appellants are extended the benefit of reduced penalty of 25% if the same is paid within 30 days.


National Aviation Co Of India Ltd Vs CST, Mumbai (Dated : March 27, 2012)

ST – Airport Service - Details submitted by the applicants does not cover the amount of tickets sold prior to 01.05.2006 for the journey carried out on or after 01.05.2006 –prima facie extended period has been rightly invoked as there is suppression of fact –Pre-deposit ordered of the entire amount of Service Tax demanded: CESTAT [para 5]



M/s Bhagyalaxmi Electroplast Pvt Ltd Vs CC & CCE, Hyderabad-III (Dated : January 11, 2012)

Service Tax – Stay/Application for waiver of pre-deposit – Tax demand on freight amount mentioned in invoices under which inputs were supplied to appellant by raw material supplier - Prima facie, when appellant did not pay the freight, there is no tax liability on the appellant – Full waiver of pre-deposit ordered and stay granted


M/s Popular Vehicles & Services Ltd Vs CCE, Cochin (Dated : January 12, 2012)

Service Tax – Business Auxiliary service – Receipt of commission by automotive dealer for sale of vehicle and facilitating sale of insurance policy from subsidiary of automotive company which is engaged as insurance agent – Once tax is discharged on commission received from insurance company for provision of services to clients/buyers of vehicles, dealer who contributed for the same outcome not liable to pay service tax - Demand of service tax against dealer under BAS for receiving share of commission from intermediary not sustainable – Impugned order liable to be set aside


Paradise Polymers Ltd Vs CCE, Nashik (Dated : March 27, 2012)

ST - Appellant is a manufacturer only and not a Consulting Engineering firm - It is onus on the department to prove that the amount received and shown in Balance Sheet is as “Consulting Engineering Firm” - since department has failed to prove the same, Service Tax demand set aside: CESTAT [ para 5 ]



M/s SKF Technologies (I) Pvt Ltd Vs CCE, Bangalore (Dated : November 8, 2011)

Service Tax - Stay/Application for waiver of pre-deposit – Eligibility of CENVAT Credit on outdoor catering service provided in canteen for workers/employees – Categorical finding by lower appellate authority that factory did not have more than 250 employees - As per Karnataka High Court judgment in Stanzen Toyotetsu case -2011-TIOL-866-HC-KAR-ST , the statutory obligation under Factories Act for a manufacturer to provide internal canteen facility to workers exceeding 250 in number, has a bearing on any claim for CENVAT credit on outdoor catering service - Prima facie no case made out for waiver of pre-deposit - Pre-deposit of Rs. 3 lakhs ordered –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide s. 83 of Finance Act, 1994


M/s Standard International Precision Engineers Pvt Ltd Vs CST, Bangalore (Dated : December 16, 2011)

Service Tax – Manufacture and export of bakery shortening and margarine manufacturing plant – Engaging foreign service provider for securing an export order and provision of services like project management, supervision and execution of project at foreign location – Invoice raised on 15.05.2006 and pursuant to directions of audit officers tax paid on 01.08.2007 - Refund claimed by appellant on the ground that they were not liable to pay any tax prior to 18.04.2006, rejected by original authority holding that tax was rightly paid by appellant under BAS - Order of original authority upheld by appellate authority - Role of foreign service provider in relation to procurement of orders for export relates to period prior to supplies - Activities in relation to implementation of project stands fulfilled by the foreign supplier in Tanzania – Payment towards said activities cannot be treated as import of services after 18.04.2006 merely on the ground that payments have been made based on invoice dated 15.05.2006 – Impugned orders set aside


Vodafone Essar Ltd Vs CST, Mumbai (Dated : February 21, 2012)

ST- Telecommunication Service – Mobile service provider - transaction of selling of SIM card to the subscriber is also a part of the "service" rendered by the service provider to the subscriber - Value of SIM card to be included in assessable value for payment of ST - Amount paid as sales tax on SIM card cannot be considered as sufficient compliance of s. 35F of the CEA, 1944 read with s.83 of the Finance Act, 1994 – Tribunal has no power to adjust payment of Sales Tax against Service Tax –Out of demand of Rs.6.18 Crores, appellant has paid Rs.3.8 Crores – No prima facie case for granting waiver - Pre-deposit ordered of balance amount of Service Tax adjudged: CESTAT [para 7]



M/s Olam Exports (India) Ltd Vs CCE & CC, Trivandrum (Dated : January 9, 2012)

Service Tax – Demand of tax under GTA service on the basis of entries contained in ‘trial balance account' – Contradictory findings given by Commissioner on the quantum of tax paid by units located in AP and TN – Matter remanded for de novo consideration by Commissioner – Commissioner to consider documentary evidence of payment of service tax by AP and TN units, if necessary, by making appropriate reference to jurisdictional Commissioners – Appellants plea regarding trial balance account being centrally maintained at Kollam to be verified by Commissioner in de novo proceedings


CCE, Mysore Vs M/s Larsen & Toubro Ltd (Dated : January 6, 2012)

Service Tax – Eligibility of CENVAT credit of service tax paid on outdoor catering service used for serving food to employees – Objection of DR at appeal stage regarding recovery of cost of provision of service from employees, beyond scope of SCN, not sustainable – Karnataka High Court in Stanzen Toyotetsu India Pvt Ltd = ( 2011-TIOL-866-HC-KAR-ST ) held the issue in favour of respondent-assessee –Impugned order sustained


M/s Industrial Protection Force Vs CCE & CC, Belgaum (Dated : December 29, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Tax demand of Rs. 1.07 crores with interest and penalty – Demand of tax based on income reflected in

balance sheets without considering the fact as to whether amounts have been actually received by appellant, not permissible – Considering entire facts and circumstances, pre-deposit of Rs. 25 lakhs ordered – Balance of dues waived and stay granted


CST, Bangalore Vs M/s AMD India Pvt Ltd(Dated : December 21, 2011)

Service Tax – Refund of accumulated input credit under Rule 5 of CCR 2004 –Appellate Commissioner directed lower authority to reconsider refund claims based on guidelines in terms of Board Circular No. 120 dated 19.01.2010 - Commissioner (Appeals) required the original authority to re-examine nexus issue in the light of para 3.1.2 of Board's Circular dated 19.01.2010 and to re-quantify any amount of refund by following the procedure laid down in para 3.2.2 thereof – Order passed by Appellate Commissioner beyond his powers, liable to be set aside – Matter remanded to original authority with direction to reconsider claims in the light of Board Circular dated 19.01.2010


M/s Ashirvad Pipes Pvt Ltd Vs CCE, Bangalore (Dated : January 5, 2012)

Service Tax – Eligibility of CENVAT Credit of service tax paid on rent-a-cab service used by appellants as conveyance for employees – Appellant entitled to credit on rent-a-cab service in view of Karnataka High Court judgment in Stanzen Toyotetsu India Pvt Ltd - ( 2011-TIOL-866-HC-KAR-ST ) case

Eligibility of CENVAT Credit of service tax paid on C & F service used for transportation of goods from factory to port for export – Appellant clearly stated before adjudicating authority that sale took place at the port of shipment as ownership of goods and risk rested with them till goods were cleared from the Customs frontiers – Adjudicating authority did not consider merits of this plea and proceeded to hold that factory gate is the place of removal and any service availed for outward transportation of goods does not qualify as input service – Appellate authority upheld the order of original authority – View of lower authorities not sustainable, liable to be set aside


Filtrum Tools & Components Pvt Ltd Vs CCE, Pune-I(Dated : March 5, 2012)

Inputs cleared to the job worker under a challan issued under Rule 4(5)(a) of the CENVAT credit Rules and received back from job worker on payment of duty - Once the duty has been paid by job worker on goods sent back to appellant, there is no reason to deny benefit of CENVAT credit to the appellant – Order set aside and Appeal allowed: CESTAT [paras 5, 6]


Vidyut Metallics Pvt Ltd Vs CCE, Mumbai-III(Dated : February 10, 2012)

Services of Travel Agent used by appellant for the travelling of technicians and accountants for visiting their job workers is an Input Service in terms of rule 2(l) of the CCR, 2004 – Cenvat Credit available – issue no longer res integra in view of Bombay High Court decision in Ultratech Cement Ltd. (2010-TIOL-745-HC-MUM-ST) : CESTAT [paras 3, 4]


CCE, Visakhapatnam Vs M/s GMR Industries Ltd (Dated : December 30, 2011)

Central Excise – Eligibility of CENVAT credit of service tax paid on GTA service used for transportation of final products to port for export – FOB value recovered from foreign buyer implying that ownership of goods vested with assessee upto place and time of loading of goods onto the ship – Credit of tax paid on GTA service not deniable


M/s M K Telecom Vs CCE, Rajkot (Dated : April 11, 2012)

Service tax - Sale of SIM Cards - Business Auxiliary Service - Demand - Service tax along with interest paid before issue of show cause notice - Penalty - The activity rendered by the assessee is of purchasing of prepaid SIM cards and selling them, for which an amount as a commission was received and which according to the Revenue is liable for service tax. The issue involved was the question in dispute before the Tribunal in various matters. Recent judgment of the Tribunal has held that selling SIM cards will amount to rendering of services. The assessee has entertained a bonafide belief that there is no liability for services rendered during the relevant period. Benefit of Section 80 available to the assessee. Penalty set aside. (Para 9 & 10)


Zenta Pvt Ltd Vs CCE, Mumbai-V (Dated : March 13, 2012)

ST - Rule 5 of CCR, 2004 - If the assessee is providing taxable service, although they are exempt by way of notification, but have been exported, then the assessee is entitled to take input service credit - demand of more than One Crore set aside: CESTAT [paras 4, 5]



M/s Kalathil Brothers Construction Co Pvt Ltd Vs CCE, CC & ST, Visakhapatnam (Dated : January 11, 2012)

Service Tax – Demand of service tax along with interest and penalty – Demand confirmed based on a report given by anti-evasion wing to Commissioner, a copy of which was not furnished to appellant violating principles of natural justice – Impugned order set aside and matter remanded for de novo adjudication after furnishing a copy of report to the appellant


M/s Kishore Kumar & Company (Exports) Pvt Ltd Vs CCE, Mangalore (Dated : January 11, 2012)

Service Tax – Stay/Applications for waiver of pre-deposit – Appellant acting as agent of foreign buyer to find sea food exporters in India – LC for payment by foreign buyer opened in the name of appellant and on the advice of appellant sale proceeds of sea food for Indian exporter gets paid – Prima facie, appellant received commission for services in foreign exchange only – Pre-deposit waived and stay granted


LCS City Makers Pvt Ltd Vs CST, Chennai (Dated : May 3, 2012)

Service Tax - Construction of complex service - Appellants constructed flats under joint development agreement with the land owners and allotted flats in lieu of the land - Contention that the relationship of service provider and service receiver does not exist between the land owner and the appellant is not sustainable - The parties were neither taking risks jointly or doing any common activity and there was no participation by the land Owners in organizing or carrying out the activity.

Works contract - Taxability prior to 1.6.2007 - Services under the entries 65(105)(zzd), 65 (105) (zzq), 65 (105)(zzt), 65(105) (zzzh), etc of the Finance Act, 1994 are taxable before and after the introduction of the new entry for works contract - The entry in section 65 (105) (zzzza) of Finance Act, 1994, called as "Works Contract Service" covers certain services which are covered by entries in section 65(105) and this cannot be interpreted as an altogether new entry - It only provides a new method of determining the liability on such services at the option of the service provider.

Personal use - Considering the area allotted to the land owners, which is to the extent of 16.5% of the total area, it cannot be said that the flats given to the land owners in exchange of land are for personal use - Appellants not entitled for exclusion from the definition of residential complex.

Valuation - Value of the flats allotted to the land owners - No infirmity in adopting the value of the flats sold - Contention that if at all a value has to be adopted, then guideline values of the land fixed by the authorities registering transfer of immovable properties should be adopted rather than adopting the value of flats sold is not acceptable - Reimbursable Expenses like registration charges and stamp duty are

excludable from the taxable value - Section 67 of the Finance Act, 1994.

Consideration received other than in the form of money - Contention that consideration received other than in the form of money prior to 19.4.2006 is not acceptable as substantial part of service was provided after Service Tax (Determination of Value) Rules, 2006 were notified on 19.4.2006.

Residential Complex - Residential complexes containing not more that 12 residential units are not covered under the definition under Section 65(91a) of the Finance Act, 1994 - In one of the projects undertaken by the appellants in three plots, there was no common facility to consider the all the three plots together as one complex of more than 12 residential units - Each of the projects housed less than 12 residential units -Not liable for service tax.

Sale of flats - Whether attracts service tax - Undivided land share was first registered and then an agreement to construct was entered into - Clarification dated 29-01-2009 issued by CBEC does not apply.

Limitation - There has been persistent resistance on the part of the appellant in providing the required information - After resisting for providing information the appellant cannot claim benefit of bonafide belief and argue that demand for a period of one year from relevant date only will apply - Demand under extended period upheld.



M/s Bhawana Motors Vs CCE, Jaipur-II (Dated : April 13, 2012)

Service tax - Classification - Rent-a-cab Service - Extended period - Limitation -Demand - When the activity of the service provider was fully known to the department and earlier a show cause notice had been issued for demanding service tax, the department cannot accuse the service provider of suppression of fact for the subsequent period, even if they did not pay the service tax or file the returns, as the department could have searched their premises and obtained the required information.Demand is barred on ground of limitation. Hence, merits of the demand not examined. (Para 4)


M/s Mehta Plast Corporation Vs CCE, Jaipur-I (Dated : March 15, 2012)

Service tax - Valuation - Erection Commissioning or Installation Service - Inclusion of Cost of goods sold - The exemption under Notification 12/2003-ST can be granted when there is transfer of possession of goods - For claiming exemption under Notification 12/2003-ST there is no need that the invoice should indicate the value of the goods sold separately. As there is also a demand of excise duty on the goods sold by the assessee, the matter is remanded to the original authority to adjudicate the demand of service tax and excise duty simultaneously. The aspect of limitation is also to be looked into at the time of adjudication. (Para 8 & 9)


M/s Ramky Infrastructure Ltd Vs CST, Hyderabad (Dated : May 14, 2012)

Service Tax - EPC Contracts for State Irrigation Projects – Taxable under WCS: It is not in dispute that the execution of the contracts involved transfer of property in goods and that VAT was paid by the contractors on the sale of goods involved in the execution of the contracts. The only items of works contracts specifically excluded from levy of service tax under Section 65(105)(zzzza) of the Finance Act, 1994 are roads, airports, railways, transport terminals, bridges, tunnels and dams. Irrigation canals do not find a place here. The mention of "dams" in the excluded category is of no aid to the appellants' case either inasmuch as these "dams" - not a word defined or explained anywhere under the Finance Act, 1994 / Rules thereunder – have to be understood according to the common parlance. These are gigantic RCC structures built across rivers and are not to be confused with the earth dams/barrages/constructed by the appellants as part of some of the EPC projects for irrigation. The services provided by the appellants to the Government of Andhra Pradesh satisfy the statutory requirements of "works contract" defined under Section 65(105)(zzzza) of the Finance Act, 1994 inasmuch as (i) transfer of property in goods was involved in the transaction and VAT was paid on such goods, (ii) the contracts were for the purpose of carrying out irrigation projects of the Government through turnkey/EPC mode, and (iii) none of the contracts was in the excluded category of works contracts.

Service Tax – valuation – Deduction of Retention Money : On a perusal of the terms and conditions of the contracts, it is found that the contractee (State Government) was, while making payments to the contractor, retaining a small part of the gross amount billed. However, upon satisfactory execution of the contract the "retention money" was to be released to the contractor, which fact is not in dispute. In other words, the retention money was only a deferred payment and the appellants were entitled to receive the gross amount charged in the R.A. Bill. If that be so, there can be no valid claim for deduction of the retention money from the gross amount as rightly held by the adjudicating authority.

Service Tax – Extended Period : The material facts related to the EPC projects executed by them were not disclosed to the Department. Registration under “WCS” was taken and ST-3 returns filed only when compelled to do so. Even in some of the ST-3 returns, the material particulars were not disclosed to the department. It was submitted on behalf of Maytas-NCC JV that they had filed certain revised returns disclosing the material facts. But even these revised returns did not disclose reason for the exemption claimed therein. No benefit of any exemption notification or of exclusion from specific taxable service was claimed. The original returns also had not disclosed the relevant facts. Therefore, the allegation of willful suppression/misdeclaration of relevant facts and contravention of the relevant provisions of the Finance Act with intent to evade payment of service tax is sustainable against both the appellants. The extended period of limitation under the proviso to Section 73(1) was correctly invoked in these cases.

Service Tax – Penalty : Where an assessee proves that there was reasonable cause for his failures (non-filing of returns, non-payment of tax etc.), Section 80 can be invoked to do away with penalties under Sections 76 to 78. The explanations given by them do not constitute any reasonable cause for non-taking of registration, non-filing of returns, non-disclosure of material facts in the returns filed, non-payment of service tax etc. hence Section 80 is not applicable to the present cases. The legal requirements for invoking the proviso to Section 73(1) of the Finance Act for recovery of service tax dues beyond the normal period of limitation and the legal requirements for invoking Section 78 for imposition of penalty on the tax defaulter are identical and, therefore, there can be no valid ground against Section 78 penalty in these cases.



M/s Lupin Ltd Vs CCE, LTU-Mumbai (Dated : February 17, 2012)

Input Service Distributor - Head Office distributing credit of Input Service tax to Tarapur unit - revenue confirming demand of Rs.71.25 lakhs on the ground that the applicant failed to co-relate the input services vis-a-vis their use in or in relation to manufacture of goods at Tarapur unit - there is nothing in rule 7 of CCR, 2004 which warrants such a co-relation - prima facie appellants have made out a strong case in favour - Pre-deposit waived and stay granted: CESTAT [para 5]


M/s British Airways PLC Vs CST, New Delhi (Dated : April 20, 2012)

Service tax - Miscellaneous petition - - Matter reserved for orders - Listing of matter for fresh hearing - On submissions made by the learned Sr. Advocate, expressing difficulty in rehearing of the appeal and making a request for passing of the order by the same Bench which heard the matter originally, it is fit to place the file before the Hon'ble President for passing appropriate orders, as this Bench has no powers / jurisdiction to place the matter before any particular Bench. Registrar is directed to place the file before the Hon'ble President. (Para 7)


M/s Kamal Auto Finance Ltd Vs CST, Jaipur (Dated : November 28, 2011)

Service Tax – Clearing and Forwarding Agent Service - Though the appellant has been termed as consignment agent by the principal, the appellants are independent persons and had liberty to sell products to their clients, without any interference and directions from their principal - The motor vehicles, parts are being received by the appellants under cover of sales invoice issued by the manufacturer and the same are being sold by the appellants to individual customers under the cover of their own sales invoices - All these facts clearly demonstrate that the appellants are acting as independent businessman and are selling the products of M/s. Bajaj Auto Ltd. to their own clients without the interference of their principal – Not covered under Clearing and Forwarding Agent Service.


M/s Multi Mercantile Centre Vs CCE, Jaipur-I (Dated : March 6, 2012)

Service tax - Valuation - Forward contract broker Service - Turnover charges / Transaction charges - Assessee claims that service tax is paid by Multi Commodity Exchange (MCX) on turnover charges/ transaction charges collected by them from their clients. If that be the case, no service tax is required to be paid by the sub-broker. However, there is a need to examine the facts whether the amount collected by the assessee is equal to the amounts on which service tax has already been paid by MCX. Matter remanded to the original adjudicating authority to examine the facts. (Para 5)


M/s Gujarat Nre Coke Ltd Vs CCE, Rajkot (Dated : April 10, 2012)

Service tax - Adjustment of excess Service Tax paid - Centralized Registration -Technical dispute - There is no dispute to the excess payment of the amount towards the service tax liability. When there is an excess payment of service tax, the same can be adjusted against the subsequent service tax liability. The assessee had made an application for centralised registration and was under the impression that the same was granted. Technical issues must not come in the way for grant of benefits. (Para 8)


M/s Regaalis Vs CCE, CC & ST, Mysore (Dated : December 16, 2011)

Service Tax – Availment of CENVAT Credit on input services and simultaneous availment of benefit of Notification No. 1/2006-ST – Denial of CENVAT Credit on the ground that condition of notification violated – Original authority appropriated reversal of CENVAT Credit but refrained from imposing penalties – Revisionary authority proposed levy of penalty under s. 78 – When there is a violation of condition of notification, benefit of notification should have been denied – No SCN issued to deny benefit of notification whereas SCN issued only for denial of CENVAT Credit –Appellants act of voluntarily reversing the credit taken along with interest rightly accepted by the original authority – Nothing brought on record to show that credit initially availed by appellant was irregular – Imposition of penalty by revisionary authority not sustainable, set aside – Impugned order set aside – Sections 78 and 84 of Finance Act, 1994


M/s Gea Process Engineer (I) Pvt Ltd Vs CCE, Vadodara (Dated : April 2, 2012)

Service tax - Classification - Erection Commissioning and Installation Service vis-à-vis Works Contract - Stay / Dispensation of pre-deposit - The service rendered by the service provider is under turnkey contract and liable to be a works contract. The service provider has made out a prima facie case that prior to 01.6.2007 service tax liability on works contract does not arise. Stay granted. (Para 6)


Shyamali Export Vs CST, Chennai (Dated : March 12, 2012)

Service Tax – Refund under Notification No 41/2007 ST dated 06.10.2007 – Relevant date for admissibility of refund amount – Whether 2% of the FOB value at the time of export or at the rate of 8%/10% of the FOB value at the time of filing the refund claim – Amended provisions as on the date of filing refund claim will be applicable –Commissioner's revision order set aside.


M/s LSE Securities Ltd Vs CCE, Ludhiana(Dated : May 7, 2012)

Service Tax – Valuation – Stock Broking service – Whether the charges like Demat, Turnover charges, BSE Charges and SEBI Fee are required to be included in the taxable value - Provisions of section 67 provide the basis to determine the value of taxable service. No ambiguity persists in section 67 of the Act. No receipt other than commission or brokerage made by a stock broker is intended to be brought to the ambit of assessable value of service provided by stock broker. Charging section in a taxing statute is to be construed strictly - Receipts not in the nature of commission or brokerage should not be taxed in disguise.

Burden of Proof - Revenue failed to bring out whether the turnover charges and other charges in dispute in these appeals received by appellant were commission or brokerage - The character of receipts was claimed by appellants as recoveries from investors to make payment thereof to respective authorities in accordance with statutory provisions of Indian Stamp Act and SEBI guidelines and were not received towards consideration in the nature of commission or brokerage of sale or purchase of securities - While burden of proof was on Revenue to establish that such receipts were in the nature of commission or brokerage or had the characteristic of such nature that was failed to be discharged.

Limitation - The bonafide belief appears to be clear when there was no levy on receipts other than commission or brokerage received by stock broker from investors. Suppression of material facts cannot be said to have been made when the commission or brokerage received were disclosed in their service tax returns and taxes were paid thereon. A perusal of the proviso to Section 73 (1) / 11A (1) indicates that it has been used in company of such strong words as fraud, collusion or wilful default. In fact it is the mildest expression used in the proviso. Yet the surroundings in which it has been used it has to be construed strictly. It does not mean any omission. The act must be deliberate. Hence extended period cannot be invoked.



M/s GE India Indus P Ltd Vs CC, New Delhi (Dated : December 13, 2011)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit wrongly availed on invoices not having complete details – In view of the fact that the Appellant's other units are located in the same address and admitted wrong availment of CENVAT Credit on common services utilized by all the units, pre-deposit ordered.


M/s Adarsh Coop Bank Ltd Vs CCE, Jaipur (Dated : April 10, 2012)

Service tax - Banking and Financial Service - 'any other person' - Stay / Dispensation of pre-deposit - Cooperative bank are covered by the heading "any other body corporate, or any other person" as per Section 65(105)(zm) and sub-section 65(12) of the Finance Act, 1994 and liable to pay service tax. Pre-deposit ordered. (Para 3)


M/s Lalitha Constructions Vs CCE, Visakhapatnam (Dated : December 15, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Construction of petrol bunks for public sector OMCs whether liable to service tax under the head Commercial or Industrial Construction service – VAT paid treating the transactions as works contracts – Appellant has not made out prima facie case on merits or on limitation –Claim of abatement of 67% in terms of Notification No. 1/2006-ST dated 01.03.2006, prima facie, available – Considering the entire facts and circumstances, appellant directed to pre-deposit Rs. 10 lakhs in addition to Rs. 3.5 lakhs already deposited –Balance dues waived subject to compliance of pre-deposit order – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide s. 83 of Finance Act, 1994


CST, Bangalore Vs M/s Nuware Systems (P) Ltd (Dated : December 20, 2011)

Service Tax – Refund of input tax credits under Rule 5 of CENVAT Credit Rules, 2004 –Original authority allowed partial refund after recording a finding of nexus between certain input and output services – Appellate authority decided on the nexus issue in r/o other input services and remanded matters for re-quantification in terms of Board Circular No. 120 dated 19.01.2010 – No infirmity in impugned orders of appellate commissioner


M/s Eicher Good Earth Ltd Vs CST, New Delhi (Dated : August 28, 2011)

Service Tax – Intellectual Property Service – Transfer of right to use the trademark “ Eicher” – Plea that permanent transfer of right to use is not taxable under Intellectual Property Service as defined under Section 65(55a) and 65(55b) of the Finance Act, 1994 – Held: the impugned contract, 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 the licensor - The right to use is assigned subject to certain conditions - On violation of the conditions the right reverts to the licensor -The terms of the contract is not that in such an event the right abates from both the parties – The transaction would not be covered by clause (a) of section 65 (55b), but is covered by clause (b) section 65 (55b) - Demand of service tax and interest upheld – Since the issue involves interpretation of complicated legal issues, penalties waived under the provisions of Section 80 of the Finance Act, 1994.


M/s City Motors & Financial Services Vs CCE, Gurgaon (Dated : November 22, 2011)

Service Tax – Business Auxiliary Service – Appellants receive commission from Banks and NBFC for marketing car loans - Even prior to 10.9.2004, expression promotion or marketing of services provided by client in the definition covers the activity of the appellants under Business Auxiliary Service – Appellants are not entitled for exemption under Notification No 14/2004 ST or 25/2004 ST.

Limitation - The Show Cause Notice was issued on 31-07-2007 - Appellant is paying service tax from 10-09-2004 - The matter was being interpreted by judicial forums in different ways and the Higher Courts have been taking the view and in such situations the extended period of time cannot be invoked for raising demand.


CST, New Delhi Vs Fankaar Interiors Pvt Ltd (Dated : March 5, 2012)

Service Tax – Commercial or Industrial Construction Service – Finishing services like as laying of floor tiles, PVC pipes, power and lighting wiring, telephone wiring, fire alarm system wiring, music system wiring etc. – No service tax is attracted on finishing services prior to insertion of clause (c) in Section 65 (30a) with effect from 16.6.2005 – No merit in revenue's appeal.


Grey Worldwide (India) Pvt Ltd Vs CST, Mumbai (Dated : February 10, 2012)

ST - Providing of space for advertising by way of billboard or on the buses comes under the purview of service tax with effect from 1.5.2006 after introduction of a separate entry – Strong prima facie case in favour – Pre-deposit waived and stay granted: CESTAT [paras 10, 11]



CST, Bangalore Vs M/s Focus Infosys (India) Pvt Ltd (Dated : December 23, 2011)

Service Tax – 100% EOU registered with STPI engaged in export of services and claimed refund of input tax credit under Notification No. 5/06-CE (NT) – Refund denied on the ground that appellant had taken registration only in November 2006 and claims related to earlier period cannot be allowed – Order of original authority set aside by appellate authority resulting in Revenue appeal – It is not possible to give a ruling that anybody who has not registered with service tax authorities can also claim refund at any point of time for the period prior to registration – In the instant case, appellant registered with STPI as 100% EOU and engaged in export of service and have not rendered any services in DTA – Credits taken on input services verifiable from documents available with assessee – Denial of refund merely on the ground that refund relates to period prior to registration not justified – Appellate Commissioner's orders on eligibility of refund upheld on merits – Correctness of quantum of refund claim requires verification by original authority – Original authority shall grant consequential relief after satisfying himself about the accuracy of amount of refund claimed – Rule 5 of CENVAT Credit Rules, 2004


Vidarbha Iron & Steel Co Ltd Vs CCE, Nagpur (Dated : February 23, 2012)

Creditors approaching High Court for liquidation of the company for recovery of dues –accordingly company was leased to M/s Ferro Alloys Corporation Ltd. on leave and license agreement and all the employees were engaged by them; salaries, service charges and other office expenses were paid by M/s Ferro Alloys and the applicant distributed the same to employees – Service Tax demand raised under the category Manpower Supply Services – no prima facie case in favour – pre-deposit ordered of Rs.50 lakhs: CESTAT [para 4]



Auroma Enterprises Vs CCE, Pondicherry (Dated : February 3, 2012)

Service Tax – Revision order passed by the Commissioner against the Order-in-Original – Plea that the no revision order can be passed when the matter was pending before the Commissioner (Appeals) – Since the appeal before the Commissioner (Appeals) was filed by the department, but not by the assessee, which was rejected by the Commissioner (Appeals) as not maintainable, plea against the revision order is

not acceptable.

Since the revisional authority has not dealt with the plea of limitation raised by the appellants, matter remanded to the Commissioner for fresh decision.


Hira Industries Ltd Vs CCE, Raipur (Dated : February 22, 2012)

Service Tax – Valuation of Taxable Services - Section 67 - The contract by the appellant with their customers is for doing crushing, grading of iron ore and also for doing activities like unloading, loading and transportation - The transportation activity was done by others and paid by the Appellant along with service tax payable for transportation of goods - Recovery of amount through Debit notes for unloading, loading and transportation of goods to the plant by the appellants from their customers claiming it to be reimbursement of transportation charges when actually what was charged were not actuals for transportation - So it is very obvious that the amounts billed by appellants form part of the value of taxable service rendered and they should have paid tax on the full value under the head applicable for crushing and grading (Para 17).

CENVAT Credit - the services of the sub-contractors were provided to the appellants and the appellants were eligible to take Cenvat credit of tax paid on it subject to the condition that the appellants pay tax on the full value of service including the amount accounted as reimbursement for transportation – Allowed disputed CENVAT Credit -Matter remanded to the adjudicating authority to re-quantification of the dues (Para 17, 19 & 20).


CCE, Belgaum Vs M/s Ken Agritech Pvt Ltd (Dated : December 16, 2011)

Service Tax – 100% EOU engaged in manufacture and export of gherkins – Claim of refund of input tax credit under Rule 5 of CENVAT Credit Rules, 2004 – Original authority sanctioned a part of refund claim and rejected a part of the claim related to outward GTA service, transit insurance on outward freight and CHA service availed for exports – Appellate authority set aside order of original authority and allowed refund claims resulting in revenue appeal - When ownership rests with the exporter till the delivery of goods at the port, place of removal should be treated as the port as held by judicial forums – No infirmity in impugned order of appellate commissioner


Microtex Energy Pvt Ltd Vs CCE, Bangalore (Dated : December 16, 2011)

Central Excise – Stay/Application for waiver of pre-deposit – Appellant cleared their finished goods for export under ARE-1 procedure – Appellant paid duty under compulsion for not having produced ARE-1 duly signed by Customs within six months

and sought refund thereafter – Refund allowed by original authority but sought to be recovered by lower appellate authority on the ground that appellant did not comply with Notification No. 42/01-CE(NT) read with Rule 19 of CER, 2002 – No SCN issued under s. 11A for recovery of refund on the ground of erroneous refund – Appellant cleared the goods for export within stipulated period of six months after obtaining ‘let export order' from Customs, complying with relevant condition of Notification – Prima facie case for full waiver of pre-deposit – Stay granted against recovery


M/s Deepak Transport Bus Service Vs CCE, Pune-III (Dated : May 2, 2012)

ST - Merely because the appellant has also provided a driver in terms of the contract, who drives the vehicle, it does not mean that the contract is not for renting of cabs -consideration is received as per the agreement as hiring or renting charges on per kilometre basis, therefore, the activity undertaken by the appellant squarely falls within the definition of ‘rent-a-cab service' – prima facie case not in favour - Pre-deposit ordered of 50% of service tax adjudged: CESTAT [ paras 5.3, 5.4, 6 ]



M/s ITC Ltd Vs CC, CCE & ST, Guntur (Dated : November 22, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax under BAS as recipient of service for availing commission agents service in UK in relation to marketing of unmanufactured tobacco – Eligibility of benefit of Notifications 13/03-ST as amended by 8/04-ST – Appellant, after procuring unmanufactured tobacco from growers, undertakes processes like threshing to separate lamina and stem; segregating the stems into manageable sizes; redrying lamina through lamina dryer and redrying stems through stem dryer and thereafter classifying and packing resultant products – Prima facie , resultant products to be considered as ‘processed tobacco' for the purpose of interpreting Notification No. 13/03-ST as amended – Prima facie , no case made out for full waiver of pre-deposit – Pre-deposit of 50% of demands ordered and balance of dues waived subject to compliance with order of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide s. 83 of Finance Act, 1994


Genom Biotech Pvt Ltd Vs CCE, Nashik (Dated : November 16, 2011)

Service Tax - Stay of Recovery of Service Tax, Interest and Penalty Amount –Conclusion based on appreciation of evidences - The activity undertaken by dealers/agents of the Appellants at Ukraine are not covered under the category of Advertising Agency Service (Para 3).


M/s JMC Projects (India) Ltd Vs CST, Ahmedabad (Dated : October 19, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Commercial or Industrial Construction service / Works contract service – Appellant was paying service tax under Commercial or Industrial Construction Service and from 1.06.2007, opted to pay service tax under Works Contract service under composition scheme – No reasons given in the adjudication order as to why the claim for classification under Works Contract cannot be accepted – Prima facie case made out for waiver of pre-deposit.


Federation Of Gujarat State Chemist & Dru Vs CCE, Rajkot (Dated : February 28, 2012)

Service Tax – Business Auxiliary Service – Advertisement charges collected from manufacturers of medicines for publishing the details of medicines manufactured in the monthly publication Chemist News – The activity is not promotion of sale or marketing of goods and the service cannot be classified under business auxiliary service and the service is more specifically covered under the heading sale of space since the activity undertaken is only sale of space in monthly news.


M/s Manik Machinery Manufacturers P Ltd Vs CCE, Mumbai-IV (Dated : March 20, 2012)

Playing cards supplied as free gift with spray guns - By no stretch of imagination can they be considered as ‘inputs' or 'input service' and, therefore, CENVAT credit of the duty paid on playing cards does not appear to be prima facie admissible - inclusion of their cost in assessable value is of no consequence - Pre-deposit ordered: CESTAT [para 5]

By no stretch of imagination, playing cards can be construed as an input for the manufacture of spray guns; playing cards cannot be construed as ‘input service' as they are goods. [para 5]



M/s Paradise Mehak Properties Pvt Ltd Vs CCE, Jaipur-I (Dated : April 13, 2012)

Service Tax - Immovable property (building) which is rented out by a person to another person to run hotel business is exempted in terms of Explanation 1, clause (d) thereof in section 65(105)(zzzz) of the Finance Act, 1994 – Prima facie case in favour – stay petition allowed unconditionally [paras 5, 6]

Appellant has rented out / leased the land along with the entire building, swimming pool and restaurant, bar, parking etc. with all the facilities as provided in the base building and the amenities and facilities under an agreement on monthly rental basis and a hotel is being run in the said building by M/s. Royal Orchid Banjara Pvt. Ltd. – in view of Explanation-1, clause (d) to the entry in section 65(105)(zzzz), it cannot be said to renting of immovable property: CESTAT.


M/s WLC College India Ltd Vs CST, Delhi (Dated : March 28, 2012)

Appellants are engaged in providing voluntary training and coaching in the field of Business, Fashion Technology, Advertisement and Graphic Design, Media, Hospitality and Hospital Administration – such training will qualify as Vocational training and coaching – exemption under notifications 9/2003-ST and 24/2004-ST available –appeal allowed with consequential relief: CESTAT [para 7]


Gyanganga Education Institute Vs CCE, Rajkot (Dated : February 29, 2012)

Service Tax – Commercial coaching or training service – Service Tax on advances received before the service coming into the tax net – Appellants admitted the tax liability – Penalty - There was confusion in the mind of the assessee during the relevant period as to the taxability of the amounts which were collected in advance –Penalty under Section 76 and 78 waived under Section 80 of the Finance Act, 1994 –Appellants entitled for cum-tax benefit.


M/s Grishma Developers Vs CCE, Rajkot (Dated : April 17, 2012)

Service Tax liability of the amounts received by the appellant from their purchasers of the flats/shops prior to 01.07.2010 - explanation added to sub-clause zzzh of clause 105 of Section 65 of Finance Act, 1994 cannot be prima facie held to have retrospective effect in view of coordinate bench decision in Mothisham complexes (P) Ltd. (2010-TIOL-1750-CESTAT-BANG) - As in an identical situation an unconditional stay has been granted, appellant has made out a prima-facie case for the waiver of pre-deposit of amounts involved - CESTAT [para 6, 8]


M/s Bridge And Roof Co (India) Ltd Vs CCE, Jaipur (Dated : April 13, 2012)

ST- Composition scheme under the rule 3(3) of Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 is excluded – prima facie case not in favour -pre-deposit ordered of Rs.15 lakhs: CESTAT [paras 6, 7]


M/s Bazpur Coop Sugar Factory Ltd Vs CCE, Meerut-II (Dated : April 18, 2012)

Individual farmers who owned tractors or lorries either in their name or the names of their family members and who transported sugar cane from collection centre to their factory cannot be considered as commercial concerns engaged in transportation of the goods – appellant not required to pay Service Tax as goods transport operator during the period 16.11.1997 to 01.06.1998 – appeal allowed with consequential relief: CESTAT [paras 8, 9 10]


M/s Preeti Courier Vs CCE, Ahmedabad (Dated : March 9, 2012)

ST - Appellant was working as employee in Mithakali branch and income for the period 1999 -2000 and 2000-2001 was of M/s Professional Couriers, Ahmedabad – since the appellant became a franchisee w.e.f. March 2001 only and prior to that period they were only employees, liability had to be discharged by M/s. Professional Couriers only – matter remanded to original adjudicating authority for reconsideration: CESTAT. [paras 3, 4]


M/s Shiv Shakti Security Services Vs CCE, Kanpur (Dated : February 8, 2012)

Appellant depositing Service Tax of Rs.12,14,786/- during pendency of appeal before the Commissioner (A) who confirmed a demand of Rs.10,83,975/- - Once the appellate authority did not bring the questionable conduct of the appellant, balance shall be appropriated towards penalty to the extent of 25% of the service tax demand and interest is payable – penalty not imposable u/s 76 but payable u/s 77 of FA, 1994 – waiver of pre-deposit ordered and appeal and stay petition disposed of by allowing appeal partly: CESTAT [para 3, 4, 5]


M/s Khuri Vision Vs CCE, Ludhiana (Dated : March 16, 2012)

Gross receipt of commission shown lesser in ST-3 returns – demand of differential Service Tax – appellant submitting that the balance amount is actually profit earned on account of sale of mobile phones on which they have paid sales tax – SSI exemption under notification 6/2005-ST also claimed – Commissioner (A) denying the benefits on the ground that no documentary evidence adduced – instead of assuming that the differential amount was not on account of sale/purchase of mobiles and that the total clearance value during the preceding financial year was more than Rs.4 lakhs, the said facts should have been got verified from the original field officer –Matter remanded to original authority for fresh decision: CESTAT [para 5]


M/s Engineers India Ltd Vs CST, New Delhi (Dated : March 13, 2012)

Consulting Engineers – they also incurred expenditure on behalf of principals like placing advertisements for procuring of materials for executing the project, clearing & forwarding of such material from the port to the project sites etc. – such reimbursed expenses not added in value of services on which tax was paid – Prima facie such reimbursed expenses not of a type which is required for rendering consulting engineering services – Since the Revenue had issued a show cause notice in 2001 itself, in respect of similar contracts which notices were dropped, there is no ground to allege suppression on the part of the appellants- pre-deposit waived and stay granted: CESTAT [para 6,7]


M/s Agrocel Industries Ltd Vs CCE, Rajkot (Dated : April 3, 2012)

Service Tax - BAS - Adjudicating authority specifically records that the appellant is eligible for small scale exemption, but includes the said amount for confirmation of demand – similarly, as regards claim for exemption in respect of services rendered in relation to agriculture, findings are sketchy – since both the lower authorities have not recorded any findings on merit matter remanded to adjudicating authority: CESTAT [para 5, 6]


M/s Alstom Projects (India) Ltd Vs CCE, Vadodara (Dated : April 13, 2012)

Revenue in appeal has taken a ground which is beyond the proposal in the SCN –Prima facie Commissioner (A) was in error since the excess amount actually adjusted has been deposited with interest and penalty – Stay granted: CESTAT [para 2, 3]


CCE, Rajkot Vs M/s Ajanta Auto Gaskit House (Dated : March 9, 2012)

Respondent providing services of installation/fitting of CNG/LPG kits in vehicles –Service Tax demand issued classifying services under Erection, Commissioning and Installation service – after allowing SSI exemption demand came down to Rs.27,568/-for a period of four years - a small scale unit need not have to be inflicted with penalties under all the sections 76, 77 and 78 of FA, 1994 - provisions of Section 80 can be applied – penalty u/s 78 sufficient – revenue appeal rejected: CESTAT [para 3]


East Coast Constructions & Industries Ltd Vs CST, Kolkata (Dated : April 9, 2012)

Service Tax- Construction of Residential Complex- Construction of residential quarters for Indian Army and West Bengal Power Development Corporation Ltd – Not taxable since service meant for ‘personal use' of Government - Board Circular dated 24/05/2010 and Khurana Engg. Ltd - 2010-TIOL-1712-CESTAT-AHM relied on - Stay Granted: The residential complex are in the personal use of the Indian Army and the WBPDCL, is not in dispute. In view of Board's clarification and this Tribunal's decision in the case of Khurana Engg. Ltd. , the applicants have made a prima facie case in their favour. In these circumstances, the pre deposit of Service Tax is waived and recovery thereof is stayed during pendency of the appeal.



M/s H L Passey Engineering Pvt Ltd Vs CCE, Bhopal (Dated : December 7, 2011)

Service Tax – Site survey, designing, foundation, fabrication of steel structures in relation of setting up of retail outlets for oil marketing companies – The service is classifiable under Commercial and Industrial Construction service under Section 65(105)( zzq ) of the Finance Act, 1994 and is taxable from 10.9.2004 – With effect from 1.6.2007, the activity is covered under Works Contract Service under 65 (105) ( zzzza ) – No merit in the contention of the appellant that the service is taxable under Erection, Commissioning or Installation service and is taxable only from May 2006.

Limitation – Extended period – In view of the letters by the appellant to the Department mentioning their activity in detail, it is clear that they had disclosed their activity to the Department – Commissioner's order does not discuss as to how on the basis of criteria for " wilful misdeclaration and suppression of facts" laid down by the Apex Court, the appellant's conduct would amount to wilful misdeclaration or suppression of facts so as to attract extended period – Proviso to Section 73(1) of the Finance Act, 1994 - Matter remanded to examine the limitation.

Quantification of duty demand – Plea of the appellant that they were paying service tax on the gross amount, but not just on the job charges has not been considered by the Commissioner – Matter remanded to extend the benefit of 67% if the conditions of

the Notification No 15/04-ST/ or 1/06-ST are satisfied.


Racold Thermo Ltd Vs CCE, Pune (Dated : April 16, 2012)

Cenvat – Service Tax - If a communication from the Assistant Commissioner in substance contains determination of a question by the application of objective standards as per the legal rules and it declares right or imposes an obligation, such communication would become an appealable order – matter remanded: CESTAT [ paras 5.1, 5.2 and 6 ]



CST Vs Consulting Engineering Services (I) Pvt Ltd (Dated : March 16, 2012)

Services provided prior to 14.05.2003 but payment received after 14.05.2003 -service tax would be payable @ 5% adv. and not 8% adv., which was in force w.e.f. 14/5/03 – rate of service tax chargeable is the rate in force on the date of rendering service and not the rate in force on the date receipt of payment: CESTAT [para 8]

Assessee has been filing ST-3 returns indicating the quantum of service tax required to be paid by them but payment of tax was delayed – later the service tax was paid along with interest – imposition of penalty u/s 76 of FA, 1994 requires malafide intention – in the absence of the same, imposition of penalty may not be warranted -element of interest is sufficiently penal in nature – Commissioner has rightly dropped penal proceedings invoking the provisions of Section 73 (3) of Finance Act, 1994 and Board's Circular No.137/176/2006-CX-4 dated 3/10/2007 –CESTAT [para 10]


B G Shirke Technology P Ltd Vs CCE, Pune-III (Dated : April 12, 2012)

Since the appellant has reversed the Cenvat credit availed by them on input services along with interest, the same shall be interpreted as if appellant has not availed Input service credit – benefit of notfn. 1/2006-ST available – order set aside on the condition that appellant shall not claim refund of the amount already reversed by them along with interest: CESTAT [ para 10, 11 ]

Prior to 01.04.2008, appellant is entitled to take CENVAT credit of Outward Transport Agency Services – issue no longer res integra . [para 12]



M/s Jumbo Mining Ltd Vs CCE, Hyderabad (Dated : December 16, 2011)

Service Tax – Refund of tax paid on input services used in export of goods (Potassium Feldspar) under Notification No. 41/07-ST as amended – Refund claim denied by original authority and order of original authority upheld by Appellate Commissioner –No dispute that goods were transported from appellant's factory to Kakinada port –Export consignment of 6000 to 8000 tonnes covered by one shipping bill cannot be transported by a single lorry, the export goods are aggregated at port premises before shipping documents are prepared – In view of peculiar facts and circumstances, compliance of Condition No. (iii) in the notification for the said purpose to be ascertained by broadly correlating evidence relating to transport and service tax paid on such transport charges and quantity exported – As regards claim of refund of service tax paid on godown rent, the same may be considered afresh after ascertaining veracity of the claim of reimbursement by appellants – Impugned orders set aside and matter remanded to original authority – Notification No. 41/2007-ST dated 06.10.2007 as amended by Notification No. 03/2008-ST dated 09.02.2008


CCE, Hyderabad Vs M/s Icomm Tele Ltd (Dated : December 9, 2011)

Service Tax – Availment of credit of service tax paid on activities like vehicle insurance, AMC on Xerox machines, housekeeping services – Tax demand confirmed with interest by original authority after appropriation of amounts paid by assessee –Order of original authority set aside by Appellate Commissioner – No formal stand taken by assessee in the reply to SCN contesting proposed demand as the emphasis therein was only on waiver of penal proceedings – When there were no specific submissions before original authority on eligibility of credit on each input service, Appellate Commissioner should not have embarked on discussing the issues without giving an opportunity to the department in the light of Rule 5 of Central Excise (Appeals) Rules, 2001 – In view of the peculiarity of facts and circumstances of the case, orders of original authority and Appellate Commissioner set aside and matter remanded to original authority to give specific findings on the issues raised in the show cause notice – Rule 5 of Central Excise (Appeals) Rules, 2001


M/s Gemini Veterans Security & Vigilance Vs CST, Kolkata (Dated : February 10, 2012)

Service Tax – Proprietary concern – Short payment of service tax for a certain period due to non-understanding of provisions of law, made good after being pointed out by department, interest liability payable – When there was no suppression, mis-declaration etc penalty not imposable under s.78 but levy of penalty under s. 76 justified for delayed payment of tax


M/s LBS Centre For Science & Technology Vs CCE, Thiruvananthapuram (Dated : October 19, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Appellant, a registered society engaged in discharging government functions viz., conduct of examinations like SET, LET, KGTE and CAB and incidental activities like preparation, printing and publishing of prospectus, processing of applications, printing of question papers, distribution of hall tickets, conduct of examination, evaluation of answer scripts and preparation of rank list – No question of levy of tax under Consulting Engineer's service – As regards levy of tax under Commercial Training or Coaching service, appellant cannot claim immunity on account of the fact that their activities are under the priority sector of education funded by the Government – Undisputedly the entire cost of courses met out of the fees collected from students/trainees on a commercial basis – Prima facie , demand of tax under the head Commercial Training or Coaching service sustainable – No dispute that major part of demand beyond the period of limitation – Pre-deposit of Rs. 15 lakhs ordered – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide Section 83 of Finance Act, 1994


CCE, Tirupathi Vs M/s Sri Rayalaseema Hi-Strength Hypo Ltd (Dated : December 9, 2011)

Service Tax – Eligibility of credit of service tax paid on BAS, C & F service, Courier service, CHA service, Insurance Auxiliary service etc – Appellate Commissioner failed to discuss individually how each of the input services claimed by assessee are input services in the light of inclusive part of definition – Matter remanded to Appellate Commissioner to record a finding in r/o each disputed service – Impugned order set aside


CCE, Mangalore Vs M/s Kudremukh Iron Ore Company Ltd (Dated : December 2, 2011)

Service Tax – Manufacturer of iron ore pellets claimed refund of service tax on services used in export of goods under Notification No. 41/2007-ST – Original authority sanctioned refund – In revision, Commissioner proposed recovery of ECess and SHE Cess on the ground that exemption was only for service tax and not cesses –In lieu of Board Circular No. 134/3/2011-ST dated 08.04.2011 cesses not payable when service tax is exempted – Impugned Order-in-Revision not sustainable, set aside


ICICI Lombard General Insurance Co Ltd Vs CCE, Lucknow (Dated : December 26, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Provision of personal accident insurance cover to farmers under agreement with State Govt – Eligibility of exemption Notification No. 3/94-ST dated 30.06.1994 denied on the ground that agreement mentions that self-exposure to needless peril except to save human life

would not be covered and that the payment of compensation would not be given when claims are not submitted within 90 days of occurrence of accident – Merely because agreement between appellant and State Govt mentions two grounds for rejection of claims on policies i.e. not covering self exposure to needless peril except in an attempt to save human life and cases where claims were not submitted within 90 days from the date of accident, policy in question would not cease to be Janta Personal Accident Insurance Policy – Board letter dated 18.01.2011 specifically clarified that since description of JPA Policy is not given in the notification, customized group JPAP Insurance schemes by various insurance companies as per specifications of State Govt to extend risk cover to target population and to fulfil the prescribed 'rural or social sector' obligation are covered by Notification No.3/94-ST – No requirement in the notification that Janta Personal Accident Policy referred to therein must be submitted to IRDA for its approval – Commissioner cannot go into the question as to whether Janta Personal Accident Insurance Plan as executed by the State Govt was being implemented properly – Prima facie , impugned order incorrect – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of Finance Act, 1994


M/s Grasim Industries Vs CCE, Bangalore (Dated : October 17, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Denial of credit of service tax paid on outward transportation provided by GTA – Dispute for the period prior to 01.04.2008 covered by the decision of Karnataka High Court in CCE & ST, Bangalore vs. ABB Ltd - 2011-TIOL-395-HC-KAR-ST – For the period post 01.04.2008, no documentary evidence adduced by appellant to prove fulfillment of conditions prescribed by CBEC in Circular dated 23.08.2007 [viz., (i) Credit admissible if ownership of goods remain with seller till delivery at customer's doorstep, (ii) Transit insurance borne by appellant and property in goods not transferred to buyer till delivery and (iii) Freight charges forming part of value of excisable goods and borne by appellant if sale is on FOR destination basis] – Pre-deposit of Rs. 5 lakhs ordered


CCE & CC, Visakhapatnam Vs Concast Ferro INC (Dated : December 16, 2011)

Service Tax – Eligibility of credit of service tax paid on warehousing service – Original authority confirmed demand with interest and imposed penalty but order of original authority set aside by lower appellate authority – Plea of limitation not raised before original authority but before Appellate Commissioner – Facts related to availment of credit furnished to department in June 2006 but SCN issued in August 2007 – No infirmity in lower appellate authority's order setting aside order of original authority on the ground of limitation – Rule 2(1) of CENVAT Credit Rules, 2004

Central Excise – Eligibility of credit of duty paid on inputs viz., MS rounds, MS shells, MS channels – Appellant claimed usage of inputs in manufacture of capital goods viz., chimneys and stoves – Original authority and Appellate Commissioner did not examine the issue in the light of Explanation 2 to Rule 2(k) of CENVAT Credit Rules, 2004 – Matter remanded to original authority for fresh consideration – Appellant to be allowed by original authority to adduce evidence regarding usage of impugned goods – Rule 2 (k) of CENVAT Credit Rules, 2004


IILM Academy Of Higher Learning Vs CCE, Jaipur-I (Dated : December 14, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Appellant, a charitable trust, offering of B.Sc. (Hons.) in Business & Management Studies recognized by University of Bradford, U.K. – Degree of B.Sc. (Hons.) recognized by IGNOU for admission to its Post Graduate Programs, covered under exclusion clause of definition of Commercial Training or Coaching Centre – Institutes which issue certificates recognized by law are excluded from definition of ‘Commercial Training or Coaching Centre' – Recognition of the degree by IGNOU indicates that the degree awarded by appellant's institute is recognized in India – Appellant's institute not covered by the definition of ‘Commercial Training or Coaching Centre' – Prima facie , case for full waiver of pre-deposit – Stay granted – Section 35F of Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of Finance Act, 1994


Deepak Fertilizers And Petrochemicals Corpn Ltd Vs CCE, Belapur (Dated : January 12, 2012)

Cenvat Credit taken of Rs.2.79 Crores - Services utilized for construction/erection and installation of Ammonia Storage tank outside the factory premises (at the port) to store imported inputs – since the taxable services are covered under the definition of ‘input service' in view of decision in Alidhara Textool Engineers Pvt. Ltd. , prima facie strong case in favour – Pre-deposit waived of adjudged dues and stay granted: CESTAT [ para 6 ]



CCE, Bangalore Vs M/s RSA Security India Pvt Ltd (Dated : December 2, 2011)

Service Tax – Refund claim of accumulated input credits under Rule 5 of CCR, 2004 –Original authority rejected refund claim of tax paid on input services used in export of ITSS on the ground that there was no nexus between input and output services –Appellate Commissioner set aside order of lower authority resulting in Revenue appeal – Appellate Commissioner did not remit any issue on merits to be decided by original authority but remitted only for the purpose of quantification based on CA certificate as envisaged in Board's Circular dated 19.01.2010 – Sufficient reasons given by Appellate Commissioner for accepting amended registration certificate, originally issued to assessee for ‘consulting engineer service', to seek refund claim – Grounds taken by department that Appellate Commissioner has no power of remand not relevant in the instant case – No other valid grounds adduced by Revenue to interfere with order of Appellate Commissioner – Impugned order upheld – Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 5/2006-CE(NT) dated 14.3.2006


CCE, Bangalore Vs M/s Aricent Communications Pvt Ltd (Dated : December 2, 2011)

Service Tax - Refund claim of accumulated input credits under Rule 5 of CCR, 2004 -Original authority rejected refund claim of tax paid on input services used in export of ITSS on the ground that there was no nexus between input and output services -Appellate Commissioner set aside order of lower authority resulting in Revenue appeal – Appellate Commissioner did not remit any issue on merits to be decided by original authority but remitted only for the purpose of quantification based on CA certificate as envisaged in Board's Circular dated 19.01.2010 – Sufficient reasons given by Appellate Commissioner for accepting amended registration certificate, originally issued to assessee for ‘consulting engineer service', to seek refund claim – Grounds taken by department that Appellate Commissioner has no power of remand not relevant in the instant case - No other valid grounds adduced by Revenue to interfere with order of Appellate Commissioner – Impugned order upheld - Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 5/2006-CE(NT) dated 14.3.2006


M/s Man Industries (India ) Ltd Vs CCE, Indore (Dated : January 20, 2012)

Service Tax - Appellant engaged in manufacture of carbon steel/mild steel spirally welded pipes - Activity of polyethylene coating also undertaken on pipes sent by customers - As activity of coating on pipes did not amount to manufacture, appellant paid service tax under category of BAS - Tax paid on value inclusive of value of pipes sent by customers - Refund claim filed for amount of excess service tax paid on value of steel pipes, rejected by lower authorities – Lower Appellate Authority rejected claim on the ground that appellants availed credit of duty paid on pipes and proceedings proposed to disallow such credit dropped on the ground that value of pipes were included in the value of services – Appellate authority did not dispute the legal issue that service tax was required to be paid on gross value charged for providing services and cost of pipes was not required to be included while discharging service tax liability - If appellant claimed credit of duty paid on bare pipes and proceedings in r/o the same stands dropped by lower authorities on the ground that value of bare pipes were included in the value of services, appellant cannot take a U turn subsequently and claim refund of service tax on the ground that value of bare pipes was not required to be added – Findings of Commissioner (A) that double benefit cannot be extended to appellants upheld - No merit in appeal filed by appellant


Shree Gayatri Tourist Bus Service Vs CCE, Vadodara (Dated : March 20, 2012)

Service Tax - Tour Operator - Providing buses fro transportation of ONGC officers -Not rent a cab service: the assessee had an agreement with ONGC for the purpose of giving vehicles to transport the employees of ONGC to various places. The said agreement is between ONGC and the assessee and is for transportation of personnel and their delegates under the instructions and direction from the officials of ONGC.

There are very clear clauses which indicates that the charges that has to be paid to the assessee appellant has to be based basic distance. The clauses also indicate very clearly that the appellant is responsible for maintenance of the vehicles and he is supposed to fill the fuel and make the vehicle available along with the driver and substitute the vehicle in the case of any break down of vehicle. The said clauses clearly indicate that the appellant is in possession of vehicles and is only hiring out the vehicles to ONGC for a stipulated period or as per the agreement. Whether the hiring out of vehicle is for a day or a month does not mean anything, as the said vehicle is still in the possession of the appellant assessee or his driver during the entire period.



M/s Venus Investments Vs CCE, Vadodara (Dated : January 17, 2012)

Service Tax – CENVAT Credit of service tax paid on ‘Commercial or Industrial Construction service' not available to service provider engaged in providing ‘Renting of Immovable Property service' – Facts of the case show the intention to wrongly avail credit – OIA confirming demand with interest and levy of penalty upheld


Rajratan Global Wires Ltd Vs CCE, Indore (Dated : October 12, 2011)

Central Excise / Service Tax - CENVAT - Input Services - Service availed outside factory premises - If the inputs / input services are availed in respect of a captive power plant situated within the factory or adjacent to the factory, Cenvat credit would be available. In the case of a captive power plant i.e. wind power generator, it is not always possible to locate the same in the close vicinity of the factory, as the wind power Generators have to be located at the places where the wind with sufficient speed is available throughout the year. The wind mills located away from the factory for operational purposes, have to be treated as captive power plant and the services of erection, installation, commissioning, repair and maintenance and insurance used in respect of the wind mills are eligible for Cenvat credit as the service received has nexus with the manufacture of the final product / with the business of manufacture. Appeals allowed. (Para 4)


M/s J P Steel Corporation Vs CCE, Visakhapatnam (Dated : December 13, 2011)

Service Tax – Activity of transporting billets, TMT bars from steel plant to customers after undertaking gas cutting of large pieces at stockyard prima facie fall under GTA services in lieu of Board Circular dated 06.08.2008– When service tax liability is discharged by appellants customers, no further tax liability on appellant – Plea of applicability of Board Circular dated 06.08.2008 not raised before lower authority –Matter remanded to Commissioner for fresh consideration – Impugned order set aside


M/s GTZ (India) Pvt Ltd Vs CCE, Kolkata-VII (Dated : November 23, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Eligibility of CENVAT Credit of service tax paid on outward transportation of goods from place of removal – No dispute that the period involved in this case is prior to 01.04.2008 – Karnataka High Court in ABB Ltd - (2011-TIOL-395-HC-KAR-ST) held that prior to 01.04.2008 transportation charges incurred by manufacturer from place of removal included in definition of input service – Prima facie case for full waiver of pre-deposit of tax, interest and penalty – Section 35F of Finance Act, 1994


M/s Science Centre Vs CCE, Jaipur-I (Dated : January 1, 2012)

Service Tax – Registration obtained in 2003 for Commercial training or coaching service but tax not collected from students and deposited with exchequer till 2006 –Demand of service tax with interest and penalties – Lower authorities confirmed tax demand and imposed penalties under sections 76, 77 & 78 of Finance Act, 1994 –Matter remitted back to Appellate Commissioner by Tribunal for consideration of plea for waiver of penalty under s.80 ibid – Appellate Commissioner passed an ex-parte remand order as appellant did not attend personal hearings despite being granted five opportunities – Since appellant is a small firm operating in a remote place it would have been appropriate for the adjudicating officer to point out the provision that appellant can pay penalty in 30 days from the date of order and close the matter –Appellant directed to pay 25% of tax demanded as penalty under s.78 within 30 days of receipt of Tribunal's order – If such payment is not made within the prescribed time limit, penalty equivalent to service tax becomes payable – As penalty under s. 78 is levied, simultaneous imposition of penalty under s. 76 waived


M/s Choice Advertising & Marketing Vs CCE, CC & ST, Cochin (Dated : December 12, 2011)

Service Tax – Demand of service tax on advertising agency service confirmed with interest and penalty – Part of tax liability with interest paid by appellant and appropriated by lower authority – Plea of allowing CENVAT Credit on input services raised before lower authority but not considered – Matter remanded to lower authority with a direction to the Commissioner to allow the assessee to adduce evidences and decide the issue of CENVAT Credit eligibility and penalties – Impugned order to this extent set aside


M/s Datamatics Financial Service Ltd Vs CST, Mumbai (Dated : March 12, 2012)

Applicant is a share transfer agent - Postage charges recovered from principal on actual basis for despatching the documents to the transferee – prima facie applicant not liable to pay Service Tax on postage charges in view of rule 5(2) of the Service Tax (Determination of Value) Rules, 2006 – Pre-deposit waived and stay granted: CESTAT [ para 4 ]



M/s Compuserve Systems Pvt Ltd Vs CCE, Ahmedabad (Dated : January 5, 2012)

Service Tax – Liability to pay service tax on services like collection of application forms, bills, undertaking sales promotion of products for clients – Service tax not paid till 08.07.2004 and after withdrawal of exemption given to commission agents w.e.f 09.07.2004 appellant took registration and started paying tax – Revenue demanded service tax w.e.f 01.07.2003 by holding that appellants were ineligible for exemption benefit available to commission agents – In the absence of any finding that appellant obtained registration due to action of the department and not voluntarily, submission of appellant that they entertained bonafide belief with regard to service tax liability accepted – Deposit of service tax without even waiting for a show cause notice would show that appellant did not want any dispute with the department – Unless department proves that appellant did not entertain bonafide belief and suppressed facts deliberately, benefit of s. 73(3) of Finance Act, 1994 not deniable – Proceedings initiated invoking suppression/mis-declaration of facts unwarranted, liable to be set aside – Penalty under s.78 paid under protest to be allowed as consequential relief to appellant


Lanco Infratech Ltd Vs CCE, Hyderabad (Dated : February 29, 2012)

Commercial and Industrial Constructions Service – Value of Dam, Roads, Tunnels etc. executed under a Single Composite Contract is vivisectable - Definition of Commercial and Industrial Construction Service permitted Appellant to exclude the cost of Construction of Dam, Road, Tunnels from the Gross amount covered by EPC Contract – Larger Bench decision of the Tribunal in BSBK Pvt. Ltd relied on - Stay Granted.



CCE, Kanpur Vs M/s Heera Panaa Guest House (Dated : November 29, 2011)

Service Tax – Liability to pay service tax on Mandap Keeper services – Appellant owned guest houses where space (Mandap) was made available to clients for organising marriage functions - Appellant also provided furniture, fixtures, lighting, decorations and catering service - Activity of appellant allowing temporary occupation of Mandap for some consideration to be treated as service in relation to use of Mandap, taxable during the period of dispute – During the period prior to 01.06.2007 also marriage to be treated as social function – Marriage function which is held for celebrating marriage of married couple with friends and relatives is an event different from event of marriage and marriage function has to be treated as a social function, without any religious element - Marriages could be under Special Marriage Act, 1954 without any religious rites - Explanation added w.e.f 01.06.2007 clarifying that social function includes marriage, clarificatory in nature – Appellate Commissioners' order classifying it as Pandal or Shamiana service not liable to tax prior to 10.09.2004 set aside but order to the extent it held that marriage as a social function prior to 01.06.2007 upheld


M/s Frankfin Aviation Services P Ltd Vs CST, Delhi (Dated : December 14, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of service tax for providing services falling under the category of ‘Commercial Training or Coaching service' and denial of exemption Notification No. 24/04-ST – Adjudicating authority accepted the fact that courses offered by applicants provide an opportunity for employment but has denied exemption benefit on the ground that these skills do no provide an opportunity to the trainees for self employment – Expression ‘seek employment or ‘undertake self employment' as appearing in the explanation separated by ‘or' and not by ‘and' – Interpretation adopted by adjudicating authority to the effect as if the training being provided by applicant must result in imparting of skills enabling the trainee to seek employment as also undertake self employment –Substitution of the word ‘or' with the word ‘and' amounts to suo motu legislation, not permissible – When adjudicating authority admitted that training being provided gives an opportunity to trainees for employment, prima facie, benefit of exemption Notification No. 24/04-ST available to applicant – Pre-deposit of tax demand to this extent waived

Franchise service – Appellants entered into franchise agreement with a U K based commercial institute for imparting degrees to its students – Revenue demanded tax on the activity on reverse charge basis – A part of tax demand confirmed on the ground that amount received towards reimbursement of expenses liable to be included in the value of franchisee service – Issues being contentious and arguable, appellants directed to pre-deposit Rs. 75 lakhs – Balance of dues waived and recovery stayed during pendency of appeal – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide s. 83 of Finance Act, 1994


CST, Bangalore Vs M/s Kbace Technologies Pvt Ltd (Dated : November 30, 2011)

Service Tax – Refund claim under Rule 5 of CENVAT Credit Rules, 2004 –Commissioner (Appeals) found nexus between input services and output services and required the lower authority to re-quantify the refund amounts based on Board's circular dated 19.01.2010 - When orders were passed by original authority, Board's Circular dated 19.01.2010 not in force and procedure prescribed by Board required to

be followed in the matter of examining refund claims under Rule 5 of CCR, 2004 –Orders passed by Appellate Commissioner cannot be held as remand orders – Rule 5 of CENVAT Credit Rules, 2004


CCE, Tirupati Vs M/s Nutrine Confectionery Co Ltd (Dated : December 2, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on insurance services related to Group Medical Claim and Group Personal Accident Policies – Group Accident Insurance policy to be treated as part of business activity – Services relating to payment of insurance premium for Group Accident Insurance policy as input services, tax paid eligible as credit – Impugned order of appellate commissioner to this extent upheld – Rule 2(1) of CENVAT Credit Rules, 2004

Group Medical Claim or Health Insurance policy provided to both employees and their families – Health insurance cover given to family members prima facie may not come under statutory liability envisaged by ESI Act, 1948 – Issue not focused by lower authorities, requires to be considered afresh – No clarity as to whether benefit of cover given to family members involved any additional premium in which case the services relating to said coverage cannot be treated as input services – Impugned order of lower authority to this extent set aside and matter remanded for consideration afresh – Rule 2(1) of CENVAT Credit Rules, 2004


M/s Century Rayon Vs CCE, Thane-I (Dated : March 9, 2012)

Transportation of empty container to factory and after stuffing sent to port of export -Cenvat Credit of Goods transport services admissible – although notfn. 18/2009-ST exempts taxable service received by an exporter in respect of transport of goods from place of removal to port of export since tax has been paid, credit available to exporter: CESTAT [ para 7 ]



CST, Chennai Vs M/s Murugappa Management Services Ltd (Dated : October 28, 2011)

Service Tax – CENVAT – Input Services – All services used in relation to the business of manufacturing the final product are covered under the definition of input service. Matter remanded to the lower authorities for fresh decision by applying the ratio laid down in the case of Ultratech Cement - 2010-TIOL-745-HC-MUM-ST . (Para 4)


CCE, Chennai Vs Sara Leather Industries (Dated : December 23, 2011)

Service Tax – Refund under Notification No 41/2007 ST dated 6.10.2007 – The provisions of amended Notification would apply as it stood on the date of filing the refund claim – Department's appeal is dismissed.


CCE, Chandigarh Vs Skynet Builders, Developers, Colonizer (Dated : March 13, 2012)

Service Tax - Residential flats - sale of fully built flats - not taxable before Finance Act 2010 came into force: The question involved in these appeals is whether the respondents were doing any service for the prospective buyers or were doing the construction activity for themselves and were only engaged in sale of flats with no component of service to the buyers. During the period under dispute the impugned activity did not involve any service to the prospective buyers and the construction activity undertaken by the Respondents were for their own benefit to meet the contract for sale of future flats to be constructed.



CCE, Bangalore Vs M/s Utopia India Pvt Ltd (Dated : November 4, 2011)

Service Tax – Refund of unutilized credit under Rule 5 of CCR, 2004 – Commissioner (A) has given categorical findings regarding nexus between input services and output services – Remission of matter to original authority to see correctness of amount claimed does not amount to remand order – No reason to interfere with order of Appellate Commissioner – Section 85(3) of Finance Act, 1994


M/s Impact Communications Vs CST, New Delhi (Dated : December 21, 2011)

Service Tax - Valuation - Event Management Services - Business Auxiliary Service -Business Exhibition Service - Non-inclusion of value of material - Stay / Dispensation of pre-deposit - This is a case where the service provider procures raw materials and make objects necessary for rendering services and uses it for rendering such services. Prima facie no case made out for complete waiver of pre-deposit. (Para 10)


M/s Tara Lpg Bottling Pvt Ltd Vs CCE, Pondicherry (Dated : November 25, 2011)

Service Tax – Penalty under Section 78 – Intent to evade – The service provider has admitted that they recovered the tax amount from the customer which is in the public sector. However, they did not either pay the tax amount to the Government nor they sought any clarification regarding the category under which they were required to pay the tax. Only on being pointed out by the department the tax was paid. This is a clear case where the intention to evade tax can be clearly inferred from the conduct of the service provider . Penalty upheld. (Para 3)


M/s Beico Industries Pvt Ltd Vs CCE, Nashik (Dated : March 7, 2012)

Input Service Distributor – no bar exists in rule 7 of the CCR, 2004 from taking Cenvat Credit in respect of invoices prior to the date of registration – Prima facie strong case in favour – Pre-deposit waived and stay granted: CESTAT [ para 5 ]



M/s The Trident Chennai Vs CST, Chennai (Dated : November 2, 2011)

Service Tax – CENVAT – Taxable as well exempted service provided – Credit of service tax paid – Rule 6(5) of the CENVAT Credit Rules, 2004 provides for credit of service tax paid on taxable services except if the service/ services are used exclusively in orin relation to the manufacture of exempted goods or providing exempted services. As both taxable as well as exempted services are provided in the present case, Rule 6(5) covers the situation. Credit of service tax paid is allowed. (Para 2)


M/s Arjun Technologies (I) Ltd Vs CCE, Chennai (Dated : November 2, 2011)

Service Tax – CENVAT – Input Services – All services used in relation to the business of manufacturing the final product are covered under the definition of input service. Matter remanded to the lower authorities for fresh decision by applying the ratio laid down in the case of Ultratech Cement - 2010-TIOL-745-HC-MUM-ST . (Para 2 & 3)


Syndicate Bottles Vs CST, Chennai (Dated : November 25, 2011)

Service Tax – Penalty under Section 76 of the Finance Act – Reduction of – With effect from 18.4.2006, the penalty prescribed under Section 76 of the Finance Act, 1994, has become mandatory and no discretion can be showed in reduction of penalty. However, for the period prior to 18.4.2006, discretion is allowed. In the circumstances of the case, penalty is reduced. Matter remanded to the adjudicating authority to re-quantify the penalty. (Para 6 & 7)


Isha Homes (I) Private Ltd Vs CST, Chennai (Dated : October 20, 2011)

Service Tax - Construction of Complex Service – Demand – Stay / Dispensation of pre-deposit – The 97 "independent houses" referred to as villas are part of a gated community built as per the layout of the property approved by the local municipal authority. The common area and the common facilities make the 97 villas as part and parcel of "residential complex". They are horizontally spread over unlike in the case offlats in a residential complex which are vertically spread. It is also noticed that each of the villa owners is required to make payments towards life time club membership and corpus funds for maintenance of overall complex. Further, the villa owners are required to share the cost of repairs and maintenance and all common amenities on pro-rata basis. Pre-deposit ordered. (Para 8)


CCE, Tirunelveli Vs Bharat Sanchar Nigam Ltd (Dated : December 20, 2011)

Service Tax – CENVAT – Irregular availment of credit - Penalty – The assessee made a blatantly wrong claim under the Dispute Resolution Scheme that they have reversed the wrongly taken credit and the dispute resolution they sought by making payment of the interest amount alone amounts to fraud, duplicity and mis-statement which is not expected from a Public Sector Undertaking. Demand of wrongly availed credit and i mposition of equal penalty, justified. (Para 2)


M/s Amaravathi Sri Venkatesa Paper Mills Ltd Vs CCE, Madurai (Dated : September 29, 2011)

Service Tax – Freight not paid by manufacturer but by consignment agents - Liability on manufacturer – The freight amounts are paid by the consignment agents and are deducted from the sale proceeds received from the ultimate buyers. It is not possible to hold that the appellants are paying the freight through their agents and are therefore liable to pay service tax. It is the consignment agents who are liable to pay service tax. (Para 3)


M/s JSW Steel Ltd Vs CCE, Thane (Dated : March 1, 2012)

Persons like Poojari, cook, yoga teacher and nurse supplied by Manpower Recruitment or Supply Agency Service have no nexus with manufacture of final product – Prima facie not an input service – Pre-deposit ordered of Rs.15 lakhs: CESTAT [ para 5 ]



CST, Chennai Vs M/s Lee & Muirhead Pvt Ltd (Dated : October 12, 2011)

Service Tax – Valuation – Custom House Agent Service – Deduction of reimbursable expenses – The adjudicating authority has recorded categorical findings relating to certain expenses that they were for services rendered by third parties and that they were recovered on the basis of the bills provided by third parties on actual basis and that the importer/ exporter alone was liable to make payment to the respective service providers in respect of the above heads. There is no challenge to any of these findings. Under these circumstances, there is no valid reason to interfere with the order of the Commissioner. Regarding the expenses not allowed, we remand the matter back to the adjudicating authority for considering the documents to be submitted by the service provider. Matter remanded to this extent. (Para 7.2 & 8.2)


CCE & CC, Visakhapatnam Vs M/s Dr Reddy Laboratories Ltd (Dated : November 11, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on outdoor catering service and Group Insurance service – Lower appellate authority held that outdoor catering service is an input service relying on CESTAT LB judgment in GTC Industries Ltd case - 2008-TIOL-1634-CESTAT-MUM-LB – CESTAT LB judgment upheld by Bombay High Court in CCE vs. Ultratech Cement Ltd - 2010-TIOL-745-HC-MUM-ST -Group Insurance service held as input service by Karnataka High Court in CCE vs. Stanzen Toyotetsu India Pvt Ltd case - 2011-TIOL-866-HC-KAR-ST – Submissions by DR that assessee should have more than 250 workers to claim eligibility of outdoor catering service as input service or that the assessee has to prove that cost of supply of food to workers is included in cost of production, not raised in appeal memos –Submissions of DR amount to raising question of facts which have not been raised in appeal memo, cannot be entertained – No reason to interfere with Commissioner (A) order


M/s Hari & Co Vs CCE (ST), Tirunelveli (Dated : November 3, 2011)

Service Tax – Refund of service tax paid on goods exported – Time limit -Completeness of refund claim – The refund claim was filed within the stipulated time. However, the supporting documents in the form of certificate from the Port Trust authorities could not be filed along with the refund application as the Port Trust authorities issued such certificate after considerable delay. HELD - The assessee cannot be penalized and the export benefit cannot be refused for no fault of theirs when the relevant document was handed over to them after considerable delay by the Port Trust authorities. In such a case, it has to be held that the refund claim is filed within the stipulated time, though the relevant documents have been submitted later on. The refund is allowed, if otherwise due. Matter remanded. (Para 3)


CCE, Bangalore Vs M/s Outsource Partners International Pvt Ltd (Dated : November 1, 2011)

Service Tax – Refund of unutilized credit under Rule 5 of CCR, 2004 – Appellate authority remanded matter to original authority to re-quantify eligible refund based on CA Certificate in terms of Board's Circular No. 120 after giving detailed findings on nexus between input and output services – Revenue appeal on the ground that Commissioner (A) did not have power of remand – Lower appellate authority's order gave findings on substantive issue i.e. nexus between input and output services and remanded only for limited purpose of re-quantification pursuant to Board's Circular dated 19.01.2010 – This does not amount to remand as the substantive issue was settled by appellate authority itself – Impugned order sustained


M/s Logos Constructions Private Limited Vs CST, Chennai (Dated : October 13, 2011)

Service Tax - Construction Service – Commercial or Industrial Construction Services –Works Contract - Demand – Stay / Dispensation of pre-deposit – The service provider is engaged in activities relating to construction of assembly shop, press shop, office buildings, utility building, canteen building, guest houses etc. Demand of service tax is made under the category of "Construction Services", "Commercial or Industrial Construction Services", and “Works Contract”. The service provider challenges the demand on the ground that for the same activity service tax has been demanded under different heads for different periods. HELD - The case involves construction activities for constructing different types of buildings and structures. On the facts of the case and the findings of the Commissioner the service provider, prima facie , has not made out a case for unconditional waiver. The service provider has admitted that their activities are liable to service tax under Works Contract from 01.06.2007 but they have not taken registration for the said services till 01.04.2008. Pre-deposit ordered. (Para 6)


Adani Gas Ltd Vs CST, Ahmedabad (Dated : March 6, 2012)

Service Tax - Stay - Pre-deposit - Charges for pipes, measuring equipment etc, at the time of providing new gas connection - Prima facie liable to tax - Pre-deposit ordered: In the present case, the customer never has a right of possession since it would never become his own property at all. At any given point of time, the appellant can take re-possession and at no time, the customer would become the owner or can claim right of possession. In the case where an item is rented, the customer has right of possession so long as he keeps paying the rent. In the absence of any payment of rent for the meter and the equipment, there is no consideration in this case for right of possession by the customer and therefore the customer cannot even claim the right of possession also. Prima facie, the conclusion is that the appellants have provided the service and are liable to Service Tax, which has been demanded. No doubt that there is a need for going into the issues and elements of service in depth in terms of statutes, meaning of various statutes and the agreement between the customer and the appellant, which can be done only at the time of final hearing. Since the appellants have not been able to make prima facie case in their favour and no financial difficulty has been pleaded, it is appropriate that the appellant should deposit 25% of the Service Tax demanded in the impugned order within 8 (eight) weeks.



M/s City Union Bank Vs CCE, Trichy (Dated : Decemder 20, 2011)

Service Tax – Penalty – Waiver under Section 80 – The jurisdictional Commissioner in his review order has given no satisfactory reason or any finding regarding any suppression, fraud etc to reverse the finding of the original authority in regard to extending the benefit under Section 80 to the appellants. Waiver of penalty upheld. (Para 2)


CCE & CC, Visakhapatnam Vs M/s Dr Reddy Laboratories Ltd (Dated : November 11, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on outdoor catering service and Group Insurance service – Lower appellate authority held that outdoor catering service is an input service relying on CESTAT LB judgment in GTC Industries Ltd case - 2008-TIOL-1634-CESTAT-MUM-LB – CESTAT LB judgment upheld by Bombay High Court in CCE vs. Ultratech Cement Ltd - 2010-TIOL-745-HC-MUM-ST -Group Insurance service held as input service by Karnataka High Court in CCE vs. Stanzen Toyotetsu India Pvt Ltd case - 2011-TIOL-866-HC-KAR-ST – Submissions by DR that assessee should have more than 250 workers to claim eligibility of outdoor catering service as input service or that the assessee has to prove that cost of supply of food to workers is included in cost of production, not raised in appeal memos –Submissions of DR amount to raising question of facts which have not been raised in appeal memo, cannot be entertained – No reason to interfere with Commissioner (A) order


CCE, Bangalore Vs M/s Amba Research India Pvt Ltd (Dated : November 1, 2011)

Service Tax – Refund of unutilized credit under Rule 5 of CCR, 2004 – Glaring contradiction in findings of Commissioner (A) on substantive issue of nexus and his decision to remand in as much as on the one hand clear findings were recorded about nexus between input and output services and on the other directions issued to lower authority to consider nexus issue afresh based on evidence to be produced by parties – Impugned orders set aside and matter remanded to lower appellate authority to consider issues afresh – Section 85(3) of Finance Act, 1994


Radel Electronics Pvt Ltd Vs CCE, Bangalore (Dated : November 9, 2011)

Service Tax – CENVAT Credit availed on ‘courier service' used as input service for export of excisable goods reversed pursuant to audit objection – Refund claims filed rejected by lower authorities – Appellant puts forth an alternative claim to take re-credit of amounts in CENVAT A/c – Whether appellant permitted to take re-credit of amounts which were reversed in CENVAT A/c to be addressed by original authority in as much as this question was never raised before that authority or even before first appellate authority – Appellants at liberty to agitate before original authority for re-credit of amounts in CENVAT A/c by citing relevant provisions of law and relevant decisions if any – Impugned orders set aside and matter remanded – Rule 2(1) of CENVAT Credit Rules, 2004 read with Notification No 41/2007-ST dated 06.10.2007


M/s Ansal Housing & Construction Ltd Vs CST, New Delhi (Dated : December 21, 2011)

Service Tax - Real Estate Agent - Demand - Stay / Dispensation of pre-deposit -Service provider is engaged in construction of residential and commercial buildings. As per the agreement, the prospective buyer is not entitled to transfer his rights acquired to another buyer until execution of sale deed. If the prospective buyer chooses to transfer his rights acquired on the flat to another buyer, 'administrative expenses' are liable to be paid to the assessee. The demand of service tax under the category of Real Estate Agent is on the 'administrative expenses'.

HELD - The consideration received by the service provider is not towards any service rendered as Real Estate Agent. Stay granted. (Para 6)


M/s APK Identification Vs CCE, Noida (Dated : February 2, 2012)

Service Tax - Refund - Service Tax paid by Service Provider - Delay in refund claim -Power to condone - Applicability of notification - Notification No. 09/09 dt. 03-03-09 provides that the Deputy Commissioner has power to condone the delay. The delay

involved is only 17 days and when a public authority is given any power, he is expected to exercise it unless there is a reason for not exercising such power. No reason has been recorded in the impugned order. Further, the time limit under Notification No.17/11-ST dated 1.3.11 is applicable to the claims filed before that date and pending on that date. The adjudicating authority should consider the claim as per the proviso of Notification 17/2011-ST dated 1.3.11 which was in force on the date when the order is issued. The claims are not time barred and the matter is remanded to the adjudicating authority to decide the case afresh, on the merits of the claim. (Para 4)


CCE, Bangalore Vs Honeywell Technology Solutions Lab Pvt Ltd (Dated : October 18, 2011)

Service Tax – Refund of unutilized credit under Rule 5 of CCR, 2004 – Lower appellate authority remanded the matters to original authority with a direction to check the nexus between input and output services in terms of Board Circular No. 120 dated 19.01.2010 – Board Circular dated 19.01.2010 requires that refund claims should be supported by a CA Certificate – Commissioner (A) oblivious of the fact that he did not have power of remand – Impugned orders set aside and matters remanded to original authority with a direction that all the parties need to be given a reasonable opportunity of producing Chartered Accountant's certificate – Original authority directed to hear parties before any claims were to be held as time barred – Parties at liberty to cite relevant case laws and adduce evidence


M/s Mayo College Vs CST, Jaipur (Dated : February 8, 2012)

Service Tax - Convention Services - Demand - The service taxable under Section 65(105) (zc) of the above Act is the service provided by any person to a client in relation to holding a convention in any manner. Thus, the service for being taxable has to be provided to a client. In this case, the delegates who had attended the conference were not clients of the assessee. It is the assessee, who out of the money collected from the delegates made arrangement for the mutual benefit of delegates in the conference.

HELD - No service tax is chargeable on the amount charged from its members for provided services of organizing the conference to itself. Appeal allowed. (Para 5)


M/s Spentex Industries Ltd Vs CCE, Indore (Dated : February 2, 2012)

Service Tax - Refund of Service Tax paid on input services used in the export of excisable goods - Delay in refund claim - The contention that the claim was filed within one year from the date of payment of service tax to the service provider has been found to be false. Though the assessee was specifically put to notice, no

evidence was produced to rebut the findings of the Revenue. Appeal dismissed. (Para 2)


Union Bank Of India Vs CCE & ST (LTU), Mumbai (Dated : March 7, 2012)

Payment made by Union Bank of India to Society for Worldwide Inter-bank Financial Telecommunication (SWIFT) for transfer of funds to member Banks is liable to Service tax under ‘Banking and other Financial Services' on reverse charge basis – no prima facie case in favour – Pre-deposit ordered: CESTAT [ para 2 ]



M/s G S Sondh Fabricators Vs CCE, Ludhiana (Dated : February 2, 2012)

Service Tax - Commissioning and Installation - Demand - Service provider claims he is not in receipt of show cause notice, is eligible for exemption for small unit and did not get opportunity to argue his case either before the adjudicating authority or the appellate authority. Matter remanded to the adjudicating authority to decide the case afresh. (Para 3)


Vandana Travels & Tours Vs CCE & ST, Allahabad (Dated : January 25, 2012)

Service Tax - Rent-a-cab Service - Demand - Service provider claims he is not in receipt of show cause notice, is eligible for exemption for small unit and did not get opportunity to argue his case before the adjudicating authority. Partial pre-deposit ordered. Matter remanded to the adjudicating authority to decide the case afresh. (Para 7)


Hero Honda Motors Ltd Vs CST, New Delhi (Dated : March 12, 2012)

Service Tax - Intellectual Property - Using the brand name of motorcycle company on Oil Company's products - Taxable Service: Admittedly, the goods manufactured by the oil companies are to be used in the vehicles manufactured by the appellant companies and have a strong connection with the same. The appearance of the trade mark "Hero Honda" and "Hero Honda 4T plus" on the oil company's products definitely indicates a

connection between the said companies and the appellants product. If the oil companies would have used the said trade mark without entering into an agreement with the appellant, the same would have amounted to infringement of their right in terms of the sub-clause (4) of the Trade Mark Act. This explains the need to enter into an agreement with the appellant and for payment of royalty to them.

Service Tax - Limitation : he law on invocation of extended period stands declared by the Supreme Court in a number of decisions. Such invocation of longer period can be adopted by the Revenue only when there is suppression or mis -statement on the part of the assessee 'with an intent to evade payment of duty' Such intention should be manifested from the actions, behaviour of the appellant. The Supreme Court in the case of Padmini Products has held that there should be some positive act on the part of the assessee to suppress the information from the department or wilful mis -statement with intent to evade payment of duty.

Penalty : As it is already held that there is no suppression or mis -statement on the part of the appellant with any malafide intent, penal provision cannot be invoked against them . Accordingly, the entire penalty, imposed upon them is set aside.



M/s ACE Calderys Ltd Vs CCE, Bhopal (Dated : January 16, 2012)

Service Tax - Business Auxiliary Service - Franchisee Service - Excise duty paid on whole value - Demand - Stay / Dispensation of pre-deposit - Goods bearing brand name of the appellant assessee are manufactured and sold by franchisees to customers in their own capacity.Service Tax under the head 'Business Auxiliary Service' is paid by the assessee on the amounts received from the franchisees. In another type of transactions the assessee sells the goods and obtains the sale proceeds for the goods manufactured by the franchisees, but transfers the manufacturing costs to the franchisee. Excise duty is paid on the actual sale price. Revenue demands service tax under the head 'Franchisee Services' on the amounts received by the assessee from the franchisee.

HELD - There are far too many cases where the brand name owners get goods manufactured by job-workers with their brand name, purchase the goods from the job-workers and sell the goods to the consumers at a higher price. No service tax is being paid or demanded in such cases. Further, excise duty is paid on the sale value and this is a case of revenue neutrality. Stay granted. (Para 17)


CCE, Vadodara Vs M/s Emico Elecom (India) Ltd (Dated : December 15, 2011)

Central Excise - CENVAT Credit - Outward Freight - Input service - No reference to extended period in show cause notice – CENVAT credit of service tax paid on outward freight is available as it falls within the definition of input service. (Para 3)


CCE, Madurai Vs M/s National Cell Com (Dated : October 13, 2011)

Service Tax – Power to remand by the Commissioner (Appeals) – Commissioner (Appeals) has the power to remand service tax appeals.


M/s Jageti & Co Vs CST, Ahmedabad (Dated : December 2, 2011)

Service Tax - Small Service Provider - Service Tax paid before issuance of SCN -Demand proceedings dropped - Refund - When the small service provider was not paying Service Tax and Revenue had accepted that they are eligible for exemption and not liable to Service Tax, it is surprising that the original adjudicating authority came to the conclusion that since the invoice had shown only gross amount, Service Tax has been collected from the customers.Only when Service Tax was payable and was held to be payable, the question of determination of gross amount included Service Tax or not, would arise. Showing the tax paid under protest as revenue expenditure in Profit & Loss Account, does not mean that what was paid before issue of Show Cause Notice was subsequently collected from the customers. Appeal allowed with consequential relief.(Para 7 & 8)


M/s Amalgamations Repco Ltd Vs CCE, Chennai (Dated : October 28, 2011)

Central Excise - CENAVAT Credit of service tax paid on CHA service - The earlier decisions of the Tribunal are not well founded as they are based on premises like place of removal being stretched to cover the actual place of delivery i.e. the port area, and the activities relating to business being stretched to cover activities like CHA service which takes place much after the manufacturing activity is over and in the course of despatch of the goods in the course of export.

However, it is the undisputed policy of the Government not to burden the export goods with domestic taxes as has been noted in various decisions of the Tribunal - We do not want to make domestically produced goods, when exported to the foreign market, to become uncompetitive - Secondly, no country wants to export the domestic taxes meant to be levied on domestic consumption of goods and services -Government under Notification No.17/2009-ST dated 7.7.2009 has since granted exemption to various taxable services provided to an exporter - The only way freeing export goods from domestic taxes can be ensured for the period relevant to these appeals is to allow credit of the service tax paid on the CHA and other services in respect of the export consignments.



M/s Integra Micro Software Services Pvt Ltd Vs CST, Bangalore (Dated : September 7, 2011)

Service Tax - Stay/Application for waiver of pre-deposit – Activities undertaken like development and testing of software, modification and upgradation of software whether liable to tax under ‘Manpower supply service' or ‘IT software service' -Agreements entered with clients are not for mere supply of manpower but for undertaking activities relating to development of software to the satisfaction of clients including modification and upgradation of said software – Prima facie case made out for full waiver of pre-deposit – Full waiver of pre-deposit ordered and stay granted –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


CST, Bangalore Vs M/s Sterling Commerce Solution India Pvt Ltd (Dated : September 7, 2011)

Service Tax – Refund of unutilized CENVAT Credit under Rule 5 of CCR 2004 –Appellate Commissioner partially allowed certain services as input services subject to production of CA Certificate to original authority as per Board Circular No. 120/01/2010-ST dated 19.1.2010 – Since decision of Commissioner (A) is not under challenge on merits by Revenue but only the order of remand to original authority, ends of justice would be served if case is remanded to original authority by Tribunal for the limited purpose of ensuring compliance with procedure laid down in Circular No. 120 dated 19.01.2010 – Original authority directed to afford opportunity to appellant to produce CA Certificate and sanction refund claims subject to production of CA Certificate to its satisfaction – Rule 5 of CENVAT Credit Rules, 2004


M/s Travel Corporation India Ltd Vs CCE, Cochin (Dated : September 22, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on activities related to arrangement of ‘out bound tours' – Activities undertaken include booking of air tickets, visa formalities, arrangement for hotel stay outside India, food, local travel at places outside India – Service tax already paid under Air Travel services for tickets booked from a place in India to first destination outside India and from last place outside India to first destination in India – Board's Circular F.No.B.43/10/97-TRU, dated 22.8.1997 has treated activities of out-bound tours as outside the purview of service tax – Prima facie case for full waiver of pre-deposit –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


CST, Bangalore Vs M/s Ciber Sites India Pvt Ltd (Dated : October 5, 2011)

Service Tax – Refund of unutilized credit on input services under Rule 5 of CCR, 2004 – Claims rejected by original authority on the ground that nexus not established between input and output services but allowed by lower appellate authority – Revenue filed appeals on the ground that lower appellate authority did not have power to remand – Impugned orders passed without jurisdiction, liable to be set aside but reasons recorded by Commissioner (Appeals) for sending the matters to original authority held valid – Matter remanded to original authority for fresh decision in the light of Board's Circular dated 19.01.2010 – Lower authority directed to grant personal hearing and provide reasonable opportunity to assessees to produce CA certificates – Rule 5 of CENVAT Credit Rules, 2004


CST, Bangalore Vs M/s Easiprocess Pvt Ltd (Dated : September 16, 2011)

Service Tax – Refund of unutilized credit on input services under Rule 5 of CENVAT Credit Rules, 2004 – Lower appellate authority's order to the extent of directing lower authority to verify eligibility of refund in view of Board Circular dated 19.01.2010 amounts to remand order, liable to be set aside – Matter remanded to original authority to consider issues afresh in terms of Board Circular dated 19.01.2010 –Lower appellate authority's categorical rejection of refund claim in r/o certain input services, not in appeal by respondent, order to that extent upheld – Rule 5 of CENVAT Credit Rules, 2004 – Section 85 of Finance Act, 1994


M/s New Mangalore Port Trust Ltd Vs CST, Mangalore (Dated : September 12, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Port Trust entrusted the work of providing and operating crane inside port area after calling for tenders and entering into agreements with service providers – Service providers discharged service tax liability on amounts received from clients – As per section 42 of Major Port Trust Act, Port Trust empowered to render certain services either by themselves or through persons duly authorized by Port Trust – In the instant case, provision of crane services permitted to be rendered by third parties pursuant to agreements entered into by Port Trust and said third parties against payment of license fees – Prima facie no case for levy of service tax on such activity by treating it as ‘Franchise service' rendered by Port Trust to the said service providers as contended by Revenue – Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Safe & Sure Marine Services Pvt Ltd Vs CST, Mumbai (Dated : February 23, 2012)

Earlier the better principle should be adopted for classifying the service - since ‘Manpower Recruitment or Supply Agency Service' came into Service Tax net before ‘Ship Management Service', prima facie , the appellants are liable to discharge the Service Tax liability under the category of ‘Manpower Recruitment or Supply Agency Service' – Pre-deposit ordered of Rs.85 lakhs: CESTAT [ para 5.2, 5.3, 5.4, 6, 7 ]

Argument that after 1.5.2006, there is a specific service namely "Ship Management Service" which covers supply of crew for the ship and, therefore, the activity is liable to be taxed only on or after 01.5.2006 does not stand to any logic or reason - as per the provisions of section 65A of the Finance Act, 1994, the service which is more specific has to be preferred over the service which is general in nature . [ para 5.2 ]

Payment of ST by sub-contractor - Under the Value Added Tax regime, which applies to Service Tax also, the provider of taxable services has to discharge the service tax liability and if such services are used as input services by other service provider or manufacturer of the goods down the line, they can avail input service credit on the Service Tax paid by the input service provider. There is no exemption on input service or input service provider under the law. The entire scheme of invoice based Value Added Tax, which is in force, envisages payment of tax at each stage of taxable event and availment of credit of tax so paid at the subsequent stage. If this tax regime, which is in force, has to be given any meaningful effect, then it is mandatory that the service tax liability is discharged as and when taxable services are rendered by the service provider….[ para 5.3 ]

Limitation - since the appellant had collected the tax from their customers but never informed the department of the same, the extended period is rightly invoked. [ para 5.4 ]



CCE, Bangalore Vs M/s H & R Johnson (India) Ltd (Dated : September 23, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on outdoor catering service used for supply of food to factory employees – Outdoor catering service availed for supply of food to factory employees integrally connected with the business of manufacturing excisable goods – Service tax paid thereon admissible as credit to a manufacturer – Impugned order upheld and matter remanded to original authority to verify the quantum of cost borne by the workers and quantify eligible credit in terms of Bombay High Court judgment in Ultratech Cement Ltd - 2010-TIOL-745-HC-MUM-ST – Rule 2(1) of CENVAT Credit Rules, 2004


CST, Bangalore Vs M/s General Motors India Pvt Ltd (Dated : September 13, 2011)

Service Tax – Refund of unutilized credit under Rule 5 of CENVAT Credit Rules, 2004 –Original authority rejected claim in one case on the ground that there was no nexus with between ‘input services' and ‘output services' exported and granted partial refund in another case – Appellate Commissioner reversed orders of original authority on

nexus issue and directed grant of refund based on CA Certificates to be produced by assessees, resulting in Revenue's appeal challenging Appellate Commissioner's power to remand – Matter remitted by Appellate Commissioner to original authority deals with a substantive issue regarding nexus between input and output services, which amounts to ‘remand' – Remand order of Appellate Commissioner set aside and matters remanded to original authority to decide afresh refund claims after providing opportunity to claimants to produce CA certificates in terms of Board Circular dated 19.01.2010 – Section 85 of Finance Act, 1994


M/s Hindustan Aeronautics Ltd Vs CCE, Bangalore (Dated : October 3, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Activity of repair and overhaul of aircrafts for IAF, Army, Navy, Coast Guard and other civilian customers and service tax paid under ‘Maintenance and repair service' – Valuation of taxable service whether to include materials used for provision of service – Prima facie case in favour of appellants – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide Section 83 of Finance Act, 1994


M/s India Sugars And Refineries Ltd Vs CCE, Mangalore (Dated : September 23, 2011)

Service Tax – CENVAT Credit of service tax paid on outward transportation (GTA service) available for period prior to 01.04.2008 – Impugned order set aside – Rule 2(1) of CENVAT Credit Rules, 2004


M/s Sakthi Celcom Vs CCE, Coimbatore (Dated : September 16, 2011)

Service Tax – Business Auxiliary Service – Penalty – Consolidated p enalty imposed by the original adjudicating authority not challenged by the appellant - Commissioner under order-in-revision has merely converted the consolidated penalty imposed under the three Sections 76, 77 and 78. Penalty cannot be set aside in the absence of any appeal against imposition thereof by the adjudicating authority. (Para 3)


Bharat Heavy Electricals Ltd Vs CCE, Nagpur (Dated : January 20, 2012)

Non-availment of CENVAT credit on inputs/input services applies to "case" - in respect of a contract where the assessee has not taken input credit prior to 01.03.2006 and input/input service tax credit on or after 01.03.2006, the assessee would be rightly entitled for the benefit under the notification no. 15/2004-ST as replaced by notification no. 1/2006 dated 01.03.2006 - there is nothing in these notifications which prevents an assessee from not availing CENVAT credit and paying service tax on 100% of the contract value in respect of one particular contract and availing abatement and not availing CENVAT credit in respect of another contract – Demand of Rs. 30 Crores set aside and matter remanded: CESTAT … para 4.2, 4.4

Centralised registration is only a facility for accounting purposes and filing of the returns and the same has nothing to do with the availment of benefit under an exemption notification. … para 4.3

Interpretation of law taken by the lower adjudicating authorities was not correct the demands were set aside and the matter was remanded for consideration afresh and re-computation of the differential service tax demand, if any… para 4.4



CST, Bangalore Vs M/s Tutor Vista Global Pvt Ltd (Dated : September 20, 2011)

Service Tax – Eligibility of CENVAT Credit on input services utilized for export of output services – Appellate Commissioner ordered lower authority to verify nexus of input services with outputs services pursuant to Board Circular No. 120/2010-ST dated 19.01.2010 which was not available when original authority passed O-I-O –Appellate Commissioner's direction to lower authority amounts to passing of remand order which is barred in terms of section 35A of Central Excise Act – CESTAT has power to remand – Matter remanded to original authority to decide matter afresh –Impugned orders set aside – Section 35A of Central Excise Act, 1944 read with Rule 3 of CENVAT Credit Rules, 2004


CCE, CC & ST, Siliguri Vs M/s Riddhi Siddhi Oil Industries (Dated : November 9, 2011)

Service Tax - Goods Transport Agency - Penalty under Section 78 - The ingredients of Section 78, viz. suppression of facts, willful mis-statement or violation of provisions of law with intent to evade tax do not exist in the instant case. No evidence has been adduced that there was deliberate attempt on the part of the assessee to evade service tax. Penalty under Section 78 not imposable. (Para 6)


M/s Bharat Sanchar Nigam Limited Vijayawada Vs CCE, Guntur (Dated : September 21, 2011)

Service Tax - Stay/Application for waiver of pre-deposit – Eligibility of exemption Notification 3/94-ST in relation to Coin Collection Box – Pre-deposit of Rs. 20 lakhs ordered - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


CST, Mumbai Vs P N Writer & Co Ltd (Dated : January 18, 2012)

Rs. 7.5 Crores Anti-evasion case flops - Activity of storage and retrieval of records of banks and corporate houses viz. discharged cheques, vouchers, agreements, books of accounts etc. which were not intended for sale and do not have any commercial value – Not leviable to Service Tax under the category of "Storage and Warehousing of goods" as "goods" should be saleable: CESTAT [ para 7.3, 8 ]



Reliance Industries Ltd Vs CCE & ST, Mumbai (Dated : January 5, 2012)

Service of Insurance of workers and export goods – Input Services in view of Karnataka HC decision in Toyota Kirloskar Motor P. Ltd. expanding the definition of Input Service rule 2(l) of CCR, 2004 – Prima facie case in favour – Pre-deposit waived and stay granted: CESTAT [para 2]


M/s Biochem Pharmaceutical Industries Vs CCE, Mumbai (Dated : December 19, 2011)

Free replacement of the expired pharmaceutical products – goods manufactured in factory are transported to depot on stock transfer basis on payment of appropriate duty - as the show-cause notice specifically mentions that replacement is made from depots, no cause for recovery of any duty- good prima facie case – pre-deposit waived and stay granted – Stay petition allowed: CESTAT. [para 6]


B P Sangle & Construction P Ltd Vs CCE, Nashik (Dated : January 5, 2012)

Applicants engaged in the activity of laying and commissioning of sewage pipeline for Nashik Municipal Corporation – in view of Tribunal decision in the case of Nagarjuna Construction Co. 2010-TIOL-789-CESTAT-BANG such type of activity is not covered

under works contract services - applicant has made out a strong prima facie case in favour – Pre-deposit waived and stay granted. [para 3]


M/s R V Refractories Vs CCE, Trichy (Dated : September 23, 2011)

Service Tax – Penalty under Section 78 of the Finance Act, 1994 – Since the entire exercise is revenue neutral, as credit of the entire amount of tax is available, extended period cannot be invoked – Penalty is set aside.


CCE, Bangalore Vs M/s Kochi Logistics Services Pvt Ltd (Dated : October 4, 2011)

Service Tax – Liability to pay service tax on ‘compliance service charges' collected from EOUs and STPs under ‘CHA service' – Actual nature of work not mentioned by CHA except stating that amounts were collected for processing of drawback claims –Role of CHA clearly includes filing of shipping bills for exports – Work of CHA relating to processing of drawback claims in r/o export consignments starts even before shipping bills for claim under drawback are filed, as CHA is expected and required to advise exporters regarding the entry in Drawback schedule under which drawback claims are to be filed – Appellate Commissioner clearly erred in holding that activity of respondents did not fit into the scope of CHA service – Impugned order set aside and matter remanded to Commissioner (A) for fresh consideration on merits – Section 65(105)(h) of Finance Act, 1994


Sandeep Vilas Kotnis Vs CCE, Kolhapur (Dated : February 14, 2012)

Service rendered to MHADA for construction of buildings under the re-development scheme does not come under the definition of “construction service” under the Finance Act, 1994 – however, construction of civil structure for MTDC and BSNL is prima facie chargeable to Service Tax – Pre-deposit ordered: CESTAT [ para 5,6,7 & 8 ]



M/s Infosys Technologies Ltd Vs CST, Bangalore (Dated : September 20, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of tax under ‘Club or Association service' on membership fees collected from employees by employee welfare trust constituted by appellant company – Demand raised based on an audit report which was contested by appellant who claimed that they were under bonafide belief that tax not payable for the period prior to 01/05/06 – Registration obtained and tax paid for the period after 01/05/06 in view of explanation inserted under section 65 of Finance Act, 1994 w.e.f 01/05/06 – On similar issue tax demand raised and order passed by authorities in another jurisdiction – No investigation conducted in the current jurisdiction prior to or after issue of audit report in 2008 – Present demand raised subsequently – Prima facie case for full waiver of pre-deposit on limitation – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Mfar Construction Pvt Ltd Vs CCE, Bangalore (Dated : September 8, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Commercial or Industrial Construction service – Liability to pay service tax on advance amounts received and inclusion of cost of free supply materials in taxable value – Claim of appellant that taxable payable under ‘Works contract service' w.e.f. 01.06.2007 prima facie not acceptable – Claim of appellant that Commissioner did not record findings in respect of duplication of demand amounting to Rs. 81 lakhs and that appellant discharged tax liability on free supply materials in respect of two clients acceptable – No justification in not including value of free supply materials selectively – Plea of limitation prima facie not acceptable as appellant had not shown value of free supply materials and their non-inclusion in the gross amount – Pre-deposit of Rs. 25 lakhs ordered –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s J M Financial Services P Ltd Vs CST (Dated : February 3, 2012)

IPO financing fees, Processing fees and Recovery of common expenses from co-user of the premises prima facie not leviable to Service Tax under the category of Business Auxiliary Services/Business Support Services – Pre-deposit waived and stay granted from recovery of adjudged dues of Rupees 5 Crores: CESTAT [ para 3.1, 3.2, 3.3 & 4 ]



M/s Shapoorji Pallonji & Co Ltd Vs CCE, Pune (Dated : January 24, 2012)

Applicants, registered under the category of "Commercial or Industrial Construction Services" and availing Notfn. no. 15/2004 dated 10.9.2004 up to 1.3.2006 and thereafter Notification No. 1/2006 dated 1.3.2006 - condition of non-availment of

credit of Service Tax paid on input services inserted w.e.f 01.03.2006 - credit availed by the applicants after 1.3.2006 pertains to the input services received prior to 1.3.2006 and they have not availed any credit for input services received after 1.3.2006 – benefit of notfn 1/2006-ST denied and duty confirmed of Rs.2.49 Crores –when input services were received by the applicant, there was no bar for availment of CENVAT Credit - Notification also does not specify that the assessee is not entitled for the CENVAT Credit of input services availed prior to 1.3.2006 – following CESTAT decision in B. G. Shirke Construction Tech P. Ltd. (2008-TIOL-1798-CESTAT-MUM) -Pre-deposit waived and stay granted from recovery of entire amount of Service Tax, interest and penalty. [para 6, 7]


Tata Technologies Ltd Vs CCE, Pune (Dated : January 5, 2012)

Applicant engaged in the activity of providing consultant engineering service to M/s. Tata Johnson Controls Automotive Ltd. which in turn is engaged in exporting engineering and designing service to their service recipients located outside India and getting the remuneration in convertible foreign exchange – it is the view of the Department that since the applicant does not receive remuneration in convertible foreign exchange they are liable to Service Tax - service provided by the applicant gets merged in the service provided by M/s. Tata Johnson Controls Automotive Ltd. and exported outside India - prima facie applicant is entitled for the benefit of the said circular no. 56/5/2003-ST dated 25.4.2003 – Pre-deposit waived and stay granted : CESTAT. [para 3, 4]


M/s Krison Sai Tool Crafts Vs CCE, Hyderabad (Dated : September 13, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Activity of rethreading/regrinding of old damaged and worn-out thread rolling dies returned from customers - Old thread removed and resultant blank subject to rethreading on a special machine viz., thread grinding machine - Activity claimed as ‘manufacture' based on Note 6 of section XVI of CETA 1985 and not exigible to service tax - Prima facie Note 6 of section XVI of CETA not applicable to impugned activity - As appellant is a SSI unit, partial pre-deposit of Rs. 3 lakhs ordered – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Prasad Corporation Limited Vs CST, Chennai (Dated : September 19, 2011)

Service Tax – Delayed payment of Service Tax along with Interest – Penalty under Section 76 – Penalty for failure to pay tax in time does not arise when the service tax has been paid together with interest after a delay. (Para 3)


M/s Tradex Polymers Pvt Ltd Vs CST, Ahmedabad (Dated : December 21, 2011)

Service Tax – Business Auxiliary service – Appellants engaged as distributors and get commission from principals on which service tax is discharged – Amounts due to the principal collected and remitted by appellant after retention of ‘early payment incentive' – Demand of service tax on this component – Retaining ‘early payment incentive' amounts to provision of incentive to appellant, not liable to service tax –Impugned order set aside


M/s Aurochem Vs CCE, Vadodara (Dated : January 3, 2012)

Service Tax - Commission Agent - Limitation - Demand Time Barred - Stay / Dispensation of pre-deposit - Service provider accepting the demand has paid service tax for the period Oct-2004 to Mar-2005 but not paid for the period July to Sept-2004. No ST-3 return is filed prior to Oct-2004.

HELD - Once liability is accepted, the service tax is required to be paid for the complete period of demand. Pre-deposit ordered. (Para 3)


CCE, Salem Vs M/s R S Construction (Dated : September 26, 2011)

Service Tax - Appeal filed beyond condonable time limit before Commissioner (Appeals) - Rectification of Mistake - Maintainability of - Penalties under Section 76 & 78 - Appeal dismissed on the ground of time bar and not on merit which was also upheld by the Tribunal. Application under Section 74 has been filed by the assessee for rectifying the mistake of imposing of penalties simultaneously on Sections 76 & 78 of the Act, as penalties under both the sections was not permissible in view of specific amendment made to the Act by the Finance Act, 1998, with effect from 10.05.2008.

HELD - Direction issued to the original authority to consider the appeal of the assessee cannot be said to be a mistake. ROM filed by the Department is rejected. (Para 3)


CST, Bangalore Vs M/s GE Medical Systems India Pvt Ltd (Dated : September 8, 2011)

Service Tax – Refund of unutilized credit under Rule 5 of CENVAT Credit Rules, 2004 –Original authorities rejected claims in certain cases on the ground that there was no nexus with between ‘input services' and ‘output services' exported and granted partial

refund in other cases – Appellate authority in certain instances reversed orders of original authorities on nexus issue and directed quantification of refund based on CA Certificates to be produced by assessees – In other cases directions issued to original authority to consider afresh nexus issue resulting in Revenue's appeal challenging Appellate Commissioner's power to remand – CST (A) not empowered to make an order of remand by virtue of bar in 85(5) of Finance Act, 1994 – Remand order of Appellate Commissioner set aside and matters remanded to original authority to decide afresh refund claims after providing opportunity to claimants to produce CA certificates and re-quantify refund claims – Section 85 of Finance Act, 1994


M/s Jayakrishnan & Co Vs CCE, Calicut (Dated : September 13, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Demand of service tax under the head ‘Commercial or Industrial Construction service' for the period from 10/09/04 to 31/03/09 - Tax liability discharged under ‘Works Contract service' w.e.f 01/06/07 under composition scheme - Service agreement or bills raised do not indicate that appellant was executing 'Works Contract' as a composite contract not capable of being specifically classified under 'Commercial or Industrial Construction Service' - Benefit of Notification No. 15/04-ST not given by lower authority on ground that cost of free supply materials not included in taxable value - No dispute that cost of free supply not included in taxable value - If cost of free supply included in taxable value, prima facie, appellant can claim benefit of exemption notification - Pre-deposit of Rs. 25 lakhs ordered - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Electrical Research & Development Association Vs CCE, Vadodara (Dated : January 11, 2012)

Service Tax - Stay/Dispensation of pre-deposit - Commercial Coaching and Training service - Adjudicating authority dropped the demand on the ground that the appellant was a non-profitable organisation - In view of the retrospective amendment made to the definition of Commercial coaching and Training service, Commissioner as revisionary authority revised the Order-in-Original - The issue involved is to be considered from the factual matrix as to whether there was any suppression of facts on the part of the assessee - Pre-deposit of Rs 50,000/- ordered.


M/s Ask Management Consultancy Services Pvt Ltd Vs CCE, Vadodara (Dated : January 2, 2012)

Service Tax - Demand of service tax due to different between the income shown in the Income tax returns and the ST 3 returns - Finding of the Commissioner (Appeals) that the appellants had shown higher income in income tax returns to paint a rosy picture of the financial affairs of the company - Such finding is beyond the allegations of the Show Cause Notice - Appellants contend that the receipts in Bank Statements include various other amounts - Matter remanded to the original authority for

verification of actual receipts.


M/s Interglobe Enterprises Ltd Vs CCE, Mumbai (Dated : January 10, 2012)

Appellant promoting and marketing vacations and trips conducted by foreign principals - since no show-cause notice was issued and no adjudication order was passed, no appeal was maintainable before the Commissioner (A) - as such order passed by Commr(A) is not an order in the eyes of law – Appeal allowed: CESTAT [para 5]



Pure Enviro Engineering Pvt Ltd Vs CST, Chennai (Dated : October 12, 2011)

Service Tax - Maintenance or Repair Service - Consulting Engineer Service - Sub-contractor - Demand - Services of maintenance provided as sub-contractor, but service tax not paid as the main contractor had paid the service tax. The document evidencing payment of service tax by the main contractor could not be produced before the original adjudicating authority. Now, as the same is available, matter remanded to the original authority for fresh decision. (Para 2)


M/s APL (India) Private Limited Vs CCE, C & ST, Cochin (Dated : September 19, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Collection of terminal expenses at different foreign ports by steamer agent on behalf of steamers –Amounts collected related to services to be rendered at foreign ports on behalf of master of vessel – Prima facie demand of service tax not sustainable – Full waiver of pre-deposit ordered – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994.


M/s S R Communication Systems Vs CCE, Hyderabad (Dated : September 20, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Demand of service tax with interest for the period from 6/05 to 3/09 and levy of penalties - Prima facie demand of

tax for the period upto March 2008 time barred and tax payable for the latter period -Pre-deposit of Rs. 7 lakhs ordered and balance dues waived – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994.


Arihant Telecommunication Vs CCE, Nashik (Dated : January 6, 2012)

Appellant paying VAT to the State Government on sale of SIM cards and under bona fide belief Service Tax was also paid under the same challans – later, amount transferred to Central Government account – matter remanded for verification: CESTAT [ para 5 ]



M/s Deluxe Tyre Retreading Vs CCE, Nashik (Dated : January 13, 2012)

Appellant under the bona fide belief that activity of tyre retreading is not liable to Service Tax - documents regarding purchase of inputs which were used in the said activity were not produced before adjudicating authority - since invoices produced by the appellant before CESTAT covers almost 35% of the amount of service provided, further deposit ordered of Rs. 1 lakh and after compliance matter to be heard afresh by adjudicating authority - Appeal as well as stay applications disposed of: CESTAT [para 4]


Gammons (I) Ltd Vs CCE, Nagpur (Dated : January 5, 2012)

Applicant undertaking activity of erection, commission and installation of transmission towers on behalf of Power Grid Corporation India Ltd. and classifying their activity under works contract service - Revenue alleging that activity is classifiable under the category of erection, commission and installation service and they are liable to pay service tax at the rate applicable - in view of Board Circular no. B1/16/2007-TRU dated 22.5.2007 activities undertaken by the applicant are covered under works contract services - prima facie demands are not sustainable - Stay granted: CESTAT [para 2]


M/s Phoniex Engineering Vs CCE, Nagpur (Dated : November 14, 2011)

Repairs, renovation, widening of roads etc. is not a 'Commercial or Industrial Construction Service' - in view of clarification given by CBEC in Circular dated 23.02.2009, appellant has established a prima facie case in their favour - Pre-deposit waived and stay granted: CESTAT [para 6]



M/s Ankita Constructions Vs CCE, Raipur (Dated : November 17, 2011)

Service Tax - Non-payment of service tax in spite of the fact that the service tax had been collected from the clients - Since during the period of dispute, the ST-3 returns had not been filed, penalty under Section 77 would be attracted and, hence, the same has been correctly upheld - Penalty under Section 78 - Though the appellant were regularly receiving payment from NMDC for the services provided, neither any service tax paid nor any returned was filed - Even if the appellant had any doubt about their service tax liability, at least they should have sought clarification from the department or disclosed the amount received by them for taxable services provided by filing ST-3 return - Provisions of Section 78 are attracted and penalty imposed under Section 78 is upheld.


M/s R K Transport Company Vs CCE, Raipur (Dated : January 25, 2012)

Service Tax - Cargo Handling Service vis-à-vis Goods transport Service - Activities of mining, loading and unloading - Service Tax paid by the receiver of the service under Goods Transport Agency Service and revenue demanded service tax from the appellant under Cargo Handling Service - Nothing in the contracts indicates that the contracts had any significant component of cargo handling other than, transportation -In the activities carried out by the appellants there appears to be a small component of loading and unloading of cargo - It is well settled that handling or transportation of goods within a factory or mining area does not amount to cargo handling because at that stage the goods are not cargo within the common meaning of the word - In the contracts under consideration there is a predominant activity of transportation - The cargo handling activity is incidental to transportation - Revenue's attempt to convert such services into cargo handling service to deny the abatement available to value of services of Transportation of Goods by Road is too farfetched to find any legal support - Contention of the appellants that they are rendering Transportation service is accepted - Demand set aside.


M/s Jothi Engineering Co Vs CCE, Coimbatore (Dated : September 19, 2011)

Service Tax - Construction of Complex service - Construction of quarters for Police officials under a contract with Tamil Nadu Police Housing Corporation - Following the

ratio of 2010-TIOL-1734-CESTAT-MAD impugned orders set aside and matter remanded for fresh decision.


M/s Nitesh Estates Ltd Vs CCE, Bangalore (Dated : September 14, 2011)

Service Tax – Stay/Application of waiver of pre-deposit – Liability to pay service tax on construction of apartments for a client who in turn allotted it to its employees for residential use – Though issue highly debatable, Board's Circular No. 332/16/2010, dated 24.05.2010 in favour of appellant – Activity undertaken by appellant would fall within the ambit of exclusion clause of the definition of "residential complex" in section 65(105)(zzzh) – Pre-deposit waived and stay granted – Section 65(105)(zzzh) of Finance Act, 1994 – Section 35F of Central Excise Act, 1944 as made applicable to section 83 of Finance Act, 1994


State Bank Of India, Salem Vs CCE, Salem (Dated : September 29, 2011)

Service Tax – Short payment of Service Tax – Penalty under Section 76 – There was excess payment in three financial years and short payment in one financial year. Penalty under Section 78 set aside as there was no intention to evade payment of duty. Although extended period cannot be invoked the service provider has paid theservice tax short paid along with interest. HELD – This is a fit case to invoke the provisions of Section 80. Penalty imposed set aside. (Para 5)


M/s Golflinks Embassy Business Park Vs CST, Bangalore (Dated : September 21, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Appellant paying service tax under Management, Maintenance & Repair service for maintaining areas coming under software park in terms of a maintenance agreement – Liability to pay service tax on charges collected towards ‘back up power supply' which is for sale of electricity generated from DG sets owned by appellant - Transaction involved only ‘sale of electricity' and hence, value of electricity sold cannot be part of value of ‘Management, Maintenance or Repair Services' - Prima facie case for full waiver of pre-deposit - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s DTDC Courier & Cargo Ltd Vs CCE & ST, Bangalore (Dated : September 14, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Authorization of several parties as courier service providers who received parcels/packets/letters from customer – Appellant acted as co-loader by collecting parcels/packets/letters from the said service providers and arranging to deliver at different destinations - Activities of applicant as 'Co-loader', prima-facie, falls under category of BAS inasmuch as applicant has rendered such services to other parties who provided courier services –Since, applicant failed to disclose relevant details to department, extended period invocable – Pre-deposit of Rs. 25 lakhs ordered – Recovery of balance dues stayed –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Schneider Electric India Pvt Ltd Vs CST, Bangalore (Dated : September 16, 2011)

Service Tax - Stay/Application for waiver of pre-deposit – Refund of CENVAT Credit on input services in terms of Rule 5 of CENVAT Credit Rules, 2004 – Appellant engaged in provision of IT Software Service introduced w.e.f 16.06.2008 registered with service tax on 18.06.2008 – Refund of CENVAT Credit for period prior to date of registration denied by Commissioner through review order – Once service tax is leviable from 16.05.2008, prima facie it is not correct to deny benefit of credit on input services utilized from the said date – Original authority ordered sanction of refund of entire amount – Prima facie case for full waiver of pre-deposit of amount ordered to be recovered by review order – Pre-deposit waived and stay granted – Rule 5 of CENVAT Credit Rules, 2004 – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Globosport India (P) Ltd Vs CST, Bangalore (Dated : September 22, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Tri-partite agreements entered into by appellant with companies and celebrities for promotion of products/brands – Tax paid on entire amounts received from companies under the head of ‘Event Management' category – Demand raised on 20% amount retained as commission under head ‘Business Auxiliary Service' – Prima facie, treating 20% of the amount retained by appellant as representing payment for another service rendered by them to celebrities not sustainable – Full waiver of pre-deposit ordered and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Fiza Developers And Inter Trade Pvt Ltd Vs CCE & ST, Bangalore (Dated : October 5, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on civil works undertaken for erection of wind mills under ‘erection, commissioning and installation service' – Pre-deposit of Rs. 25 lakhs ordered – Section 35F of Central

Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


Arjun Tours & Travels Pvt Ltd Vs CST, Bangalore (Dated : December 22, 2011)

Service Tax - Appeals - Appeal against revisionary order passed by Commissioner exercising powers under section 84 of Finance Act, 1994 - No provision for appeal to Tribunal against an order passed by Commissioner of Service Tax under section 84 of Finance Act, 1994 after amendment to section 86 w.e.f 19.08.2009 through Finance Act, 2009 - Any order passed by Commissioner of Central Excise under section 84 of Finance Act, 1994 as a revisionary authority after 19.08.2009 not appealable before CESTAT


M/s Raymond Uco Denim Pvt Ltd Vs CCE, Nagpur (Dated : January 6, 2012)

Service Tax paid by job-worker although entitled to exemption notfn. 8/2005-ST -since Revenue has accepted the tax paid and no action has been initiated against job worker, prima facie case in favour - as regards credit taken on courier service employed for transportation of ‘samples' to various customers, since no evidence produced to show that courier expenses are part of price of samples, pre-deposit ordered of Rs. 10 lakhs: CESTAT [ para 9 ]



CC & C, Vadodara-II Vs M/s Hindalco Industries Ltd (Dated : December 14, 2011)

Service Tax – Royalty paid to Foreign Service provider during the year 2003 – Liability to pay tax on the service receiver – Assessee paid service tax on an objection raised by the department – Demand of interest and penalty – Prior to 18.4.2006, there is no liability to pay Service Tax - When there is no liability to pay Service Tax, even if the Service Tax is paid, the question of recovery of interest and imposition of penalty does not arise.


M/s Cargo Motors (Guj) Pvt Ltd Vs CC, Vadodara (Dated : November 30, 2011)

Service Tax – Business Auxiliary Service - Services like arranging finance from various Banks, insurance of the vehicles, coating/colour, incentive/labour etc - Since the appellant has not contested the merit of Service Tax liability before the adjudicating authority, taking up the issue on merits before the subsequent appellate authority will be incorrect position of law - Hence Service Tax and interest thereon is confirmed –Penalty – This is a fit case to invoke the provisions of Section 80 of the Finance Act, 1944 and to set aside the penalties imposed on the appellant under Sections 76, 77 and 78 of the Act for the reason that various decisions of the Tribunal are holding that the activities rendered by the appellant could not have been taxed under the category of 'Business Auxiliary Services'.


CCE & ST, Vapi Vs M/s Veena Industries Ltd (Dated : December 15, 2011)

Service Tax - Payment under wrong Service Tax Code - Adjustment of payment in correct accounting code - The service provider has paid the service tax on "installation and commissioning" which is in fact the payment of service tax for "annual maintenance and repairs" service category. The plea of the service provider that while making the payment, wrong service tax code relating to "erection, installation and commissioning" was indicated, merits to be considered and having regards to facts of the case and Board's Circular No.58/7/2003-ST, dated 20.05.03 adjustment of payment in the correct account code is allowed. (Para 5)


M/s Kiran Motors Ltd Vs CCE, Surat (Dated : December 1, 2011)

Service Tax - Authorised Service Station for vehicle manufacturer - Banking and Financial Services - Demand - CENVAT - New Grounds - Extended period - The assessee received a part of amount paid to the vehicle manufacturer by the Banking and Financial Institutions for vehicle loans given to customers – The assessee submits that the manufacturer has already paid service tax on the incentive received, they are not liable to pay service tax and hence interest is also not payable - Also the assessee took CENVAT credit of service tax paid on vehicles serviced by other service stations -Demand was raised for recovery of CENVAT credit and interest since assessee did not contest the service tax - It is also submitted that Tribunals have held that CENVAT credit is admissible on trading activity. Matter remanded to the lower authority as these aspects were not raised earlier for fresh consideration. (Para 4)


M/s Mercedes Benz India Private Ltd Vs CCE, Pune I (Dated : December 23, 2011)

Manufacturing of motor vehicles and trading activity of imported motor vehicles –common input services – whether rule 6 of the CCR, 2004 applicable – applicant has not made a prima facie case in view of Tribunal decision in Orion Appliances – Pre-deposit ordered of Rs.50 lakhs: CESTAT [para 9]



M/s Flair Filtration Pvt Ltd Vs CCE, Jaipur-I (Dated : November 17, 2011)

Service Tax - CENVAT Credit on outward transport service - According to the judgement of Karnataka High Court CENVAT credit in respect of the outward transportation from the factory/Depot to the customer's premises would be available only when the sale is on FOR destination basis in the sense that during transit, the risk of the loss/damage to the goods was of the assessee and the transportation charges were integral part of the assessable value on which the excise duty has been paid - Appellant's plea that the sale is on FOR destination basis need to be verified -Matter remanded to the Commissioner (Appeals).


M/s Andhra Bank Vs CC, CE & ST, Hyderabad (Dated : October 3, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of service tax for the period from 10.09.2004 to 31.03.2006 through SCN issued on 26.11.2008 contested on the ground of limitation – SCN merely mentions non-declaration of P & T charges collected from customers for providing Banking and Other Financial Services in ST-3 returns – SCN did not allege any suppression of facts with intention to evade payment of tax – Prima facie case for full waiver of pre-deposit – Stay granted –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide Section 83 of Finance Act, 1994


M/s Vertex Trading And Services Pvt Ltd Vs CST, Bangalore (Dated : October 11, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on overriding commission received for canvassing of purchase orders for Singapore based company – Prima facie , appellant supported by Board's Circular No.111/5/2009-ST dated 24.2.2009 and Rule 3(1)(iii) read with Rule 4 of Export of Service Rules, 2005 – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


CCE, Mysore Vs M/s J K Tyre & Industries Ltd (Dated : September 28, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on ‘outdoor catering service' – CENVAT credit on 'outdoor catering service' available if assessee produces evidence of (a) strength of factory workers being above 250 in each factory and (b) there is no recovery from workers towards cost of service – Lower authority to conduct verification and give reasonable opportunity to adduce evidences – Rule 2(1) read with Rule 3 of CENVAT Credit Rules, 2004


M/s Shyamali Exports Vs CST, Chennai (Dated : October 14, 2011)

Service Tax – Stay/Dispensation of pre-deposit - Refund of service tax in case of exports – Relevant date – Date when payment for services exported was received is the relevant date – Prima facie case has been made out for waiver of pre-deposit.


Truetzschler India Pvt Ltd Vs CCE, Coimbatore (Dated : October 12, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Consulting Engineer Service -Demand of service tax on reimbursement amount received by the service engineers for rendering service of erection and commissioning of textile machineries – Prima facie case made out for waiver of pre-deposit as prima facie the service would fall under “Erection, Commissioning and Installation service”, but not under “Consulting Engineer service”.


Thomas Cook (India) Ltd Vs CCE, Hyderabad (Dated : September 19, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Liability to pay service tax on ‘out bound tours' under ‘Tour operator service' - Activities undertaken include booking of air tickets, visa formalities, arrangement for hotel stay at places outside India, food, local travel in places outside India – Tax already paid by appellant under the head ‘Air Travel service' on airfares from India to the first destination in foreign country and for airfares from last destination abroad to first destination in India -Board's Circular No. 43/10/97-TRU dated 22.08.97 clarifies that outbound tours outside purview of levy of service tax - Stay already granted in a similar case by Tribunal = (2011-TIOL-1389-CESTAT-BANG) - Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


International Agricultural Processing (P) Ltd Vs CCE (ST), Madurai (Dated : October 27, 2011)

Service Tax – Refund of service tax under Notifications No 41/2007 ST dated 6.10.2006 and 17/2009 ST dated 7.7.2009 - Notification No 41/2007 had a condition that the storage and warehouse is exclusively used for the purpose of storage or warehouse of the export goods - There is no such condition in the successor notification applicable from 7.7.2009 - Since the appellants have stored some inputs in addition to export goods in the impugned warehouse, refund is allowed only for the period with effect from 7.7.2009 – Matter remanded for re-calculation of refund amount.


M/S ICM English Centre Vs CST, Bangalore (Dated : October 11, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on the activity of providing training courses in English, German, French to enable students to seek employment in call centres – If English is to be considered as foreign language, appellant can claim benefit of exemption under Notifications No.9/2003-ST and No.24/2004-ST – Appellant already registered with department and paying tax under ‘Franchise services' and did not pay tax for the activity of training in English under the head ‘Commercial training or coaching service' under a bonafide belief that they were eligible for exemption under relevant notifications – Prima facie, appellant cannot be held to have suppressed facts with an intent to evade payment of tax – Full waiver of pre-deposit ordered and stay granted – Section 35F of Central Excise Ac, 1944 as made applicable to Service Tax vide section 83 of Finance Act, 1994


M/s Siemens Limited Vs CCE, Pondy (Dated : September 16, 2011)

Service Tax – Suo moto adjustment of excess Service Tax paid - Demand – Stay / Dispensation of pre-deposit – Demand confirmed as suo motu adjustment was not carried out towards service tax liability for the succeeding month or quarter as required in terms of Rule 6 (4A) of the Service Tax Rules, 1994, but excess payment was made in October 2006 whereas adjustment was made in June 2007 - Adjustment made immediately after issue of credit note. Prima facie case made out for waiver of pre-deposit. Stay granted. (Para 2)


M/s Heidelberg Cements India Ltd Vs CCE, Bangalore (Dated : September 30, 2011)

Central Excise/Service Tax - Appeal filed before Commissioner (A) in Form ST-4 against O-I-O passed by original authority for recovery of irregular CENVAT credit with interest - On the one hand appeal filed in Form ST-4 whereas section 35 of CEA mentioned in cause title - No mention of section 85(3) of Finance Act, 1994 in COD application before Appellate Commissioner - Appellant confused with regard to invocation of appropriate provisions - Matter remanded to Appellate Commissioner to reconsider COD application


M/s Choudhury Industries Pvt Ltd Vs CST, Kolkata (Dated : November 4, 2011)

Service Tax – Delay of 23 days in filing appeal before Commissioner (A) – Appeal condonable by Commissioner (A) within further three months under section 85 of Finance Act, 1994 – Apex Court decision in Collector, Land Acquisition vs. MST Katiji & Ors - ( 2002-TIOL-444-SC-LMT ) followed – Impugned order set aside and matter remanded to Commissioner (A) for deciding case on merits


M/s Municipal Corporation, Jalandhar Vs CCE, Ludhiana (Dated : January 23, 2012)

Service Tax- Is Advertisement Tax collected by Municipal Corporation liable to Service Tax? Issues to be referred to Third Member:

i) Is the activity of the Appellant, in the background of the facts of this case, prima-facie covered by Section 65(105)(zzzm) of the Finance Act, 1994 for being subjected to service tax as service in relation to sale of time or space for advertisement?

ii) Can the advertisement tax collected by the Appellant from M/s Shri Durga Publicity and Others on their advertisement revenue, under the Appellant's resolutions ratified by Government of Punjab, be prima-facie called consideration for the service in relation to sale of advertising space alleged to have been provided by them?

iii) Is the Department case against the Appellant without any basis and hence the requirement of pre-deposit under Section 35F of Central Excise Act, 1944, as made applicable to service tax matters by Section 83 of the Finance Act, 1994, must be waived or the Department has prima-facie case and pre-deposit as proposed by the learned Member (Judicial) must be ordered for hearing of the appeal?



M/s RRB Energy Limited Vs CST, Chennai (Dated : October 13, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Part of the demand is prima facie time barred - Part of the demand already paid - Demand was raised for tax under a particular category, while the impugned order demands tax in another category, which was not the case made out in the show-cause notice - Prima facie case made out for waiver of pre-deposit.


M/s Invest Mentore Securities Ltd Vs CCE, Ahmedabad (Dated : December 7, 2011)

Service Tax - Stock Broker Service - Demand of Service Tax on NSE/BSE transaction charges and DEMAT Charges - Stay/ Dispensation of pre-deposit - Stay granted in similar cases. Hence stay petition allowed. (Para 2)


M/s Madhav Nagrik Sahkari Bank Ltd Vs CCE, Indore (Dated : January 25, 2012)

Service Tax - "Banking and Other Financial Services" – A bank run by Co-operative Society liable to pay tax: The Short point for decision in these appeals is whether a co-operative society is covered by the expression "or any other body corporate, or any other person" used in sub-section 65 (105) (zm) and sub-section 65 (12). Tribunal did not agree that the expression is used in Finance Act 1994 for giving exemption to co-operative societies. By borrowing this expression from Companies Act, it brings in all the entities covered by Finance Act, 1994 section 2 (7) of the Companies Act, into the ambit of Finance Act, 1994 and if there was no other expression which could have brought co-operative societies into the scope of the entry it would have remained outside the scope of section 65 (105) (zm). If there is an expression which can otherwise cover co-operative societies it would get covered. So, the real point to be examined is whether the expression "any other person" can bring in co-operative society; The very fact that section 2 (7) of the Companies Act specifically excluded co-operative society shows that in many respects co-operative society is of the same genus as a company. It was necessary to keep the co-operative society out of the many controls of the Companies Act. So, it is specifically excluded though both are of the same genus. The fact that co-operative societies are controlled not by the elaborate procedure of companies Act but by similar but simplified controls through different enactments does not mean that for taxing the services rendered by co-operatives, such societies would be on a different footing as compared to services provided by a company unless and until such intention is specifically manifested in the taxing statute itself. Since no specific exclusion is made in Finance Act, 1994, co-operative societies will be covered by the expression "any other person" used in section 65(105) (zm) and 65(12) of Finance Act, 1994.

Penalty : This is a case where the appellants were registered as a service tax assessee and paying service tax. From one point of time they just stopped, on their own, paying such tax arguing that they had a new interpretation. There was no ground for adopting a new interpretation and penalty under section 76 is rightly imposed. Punjab & Haryana High Court has held in the case of First Flight Couriers Ltd- (2011-TIOL-67-HC-P&H-ST) that simultaneous penalties under sections 76 and 78 are not warranted. In the present case, penalty under 76 is more appropriately payable than penalty under section 78. So, the penalty under section 76 upheld and penalty under section 78 set side.



M/s Bangalore Development Authority Vs CST, Bangalore (Dated : September 21, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Franchise service received by Indian company not taxable prior to 18.04.2006 – Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to section 83 of Finance Act, 1994


M/s City Union Bank Limited Vs CCE (Service Tax), Trichy (Dated : October 7, 2011)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit on Share Registry Services – Prima facie case has been made out for waiver of pre-deposit in view of the Stay order passed by the Tribunal in 2011-TIOL-349-CESTAT-BANG


M/s Prakash Shipping Agencies Vs CST, Chennai (Dated : October 13, 2011)

Service Tax – Stay/Dispensation of pre-deposit - CHA service – Brokerage received during the period from 01.07.2003 to 31.07.2007 – Prima facie case has been made our for waiver of pre-deposit.

Demand of service tax on reimbursable expenses – No prima facie case has been made out as the Commissioner held that no supporting documents were produced.


CST, Bangalore Vs M/s Central Warehousing Corporation (Dated : September 27, 2011)

Service Tax - Stay on refund order - Refund granted by Appellate Commissioner on the ground that CWC had not rendered any Storage and warehousing service and amount paid by them cannot be treated as service tax, accepted by Revenue in first round of litigation - In second round of litigation, Appellate Commissioner allowed the claim as not hit by time limitation - No challenge by Revenue in appeal memo on reliance placed by Appellate Commissioner on Board' Circular or Tribunal's decision -No valid ground raised to stay operation of order


M/s Hindustan Oil Exploration Co Ltd Vs CST, Chennai (Dated : September 19, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Services received from outside India – Inclusion of TDS, Indian direct tax borne by the service recipient - There is no specific exclusion in the Finance Act, 1994 to exclude the income tax paid in respect of the amount paid for the services received from abroad - At the same time, prima facie, it appears that the gross amount charged for the services cannot be said to include income tax deducted at source as per the income tax statute.

Local expenditure relating to booking of airfare, accommodation etc., in respect of the foreign service provider –The appellants have claimed that in respect of these charges and services also service tax has been paid by the appellants to the concerned service providers - Prima facie, for the same services provided, for which taxes have been paid by the concerned service providers and collected from the appellants, a second demand cannot be raised against the appellants.


M/s ITC Ltd Vs CCE, Bangalore (Dated : September 21, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Eligibility of CENVAT Credit of service tax paid on GTA service utilized for transport of cigarettes from factory gate to warehouse - Board's Circular F. No. 137/3/2006-CX.4, dated 02.02.2006 or High Court decision in ABB Ltd - (2011-TIOL-395-HC-KAR-ST) not applicable after 01.04.2008 – However, Appellate Commissioner allowed claim of appellant in subsequent case relying on Board Circular ibid – Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s ASE Capital Markets Limited Vs CCE, Ahmedabad (Dated : November 22, 2011)

Service Tax - Stock Broker Service - Demand of Service Tax on NSE/BSE transaction charges and DEMAT Charges - Stay / Dispensation of pre-deposit - Stay granted insimilar cases. Hence stay petition allowed. (Para 2)


M/s ADF Foods Ltd Vs CCE, Ahmedabad (Dated : November 24, 2011)

Service Tax - Refund of Service tax paid on services used for export of goods -Terminal Handling Charges - Stay / Dispensation of pre-deposit - Refund of service tax paid on terminal handling charges originally sanctioned, demanded under order of revision. Terminal handling charges is not one of the services notified in Notification No.41/2007-ST, which provides for refund of Service Tax paid on various services used in exported goods. Prima facie no case made out for waiver of pre-deposit. (Para 2 & 5)


M/s Rajvi Stock Broking Ltd Vs CST, Ahmedabad (Dated : November 25, 2011)

Service Tax - Stock Broker Service - Demand of Service Tax on NSE/BSE transaction charges and DEMAT Charges - Stay / Dispensation of pre-deposit - Stay granted in similar cases. Hence stay petition allowed. (Para 2)


M/s Sun-N-Step Club Ltd Vs CCE, Ahmedabad (Dated : November 22, 2011)

Service Tax - Business Auxiliary Service - Health Club and Fitness Service - Club or Association Service - Demand - Stay / Dispensation of pre-deposit - Service tax liability on the amounts received from caterers or decorators under Business Auxiliary Services, is arguable. Also, service tax liability under the Health and Fitness Centre and Club Association services have been confirmed by taking wrong figures. Prima facie case not made out for complete waiver of pre-deposit. Conditional stay granted . (Para 5)


M/s Bharti Airtel Ltd Vs CCE, Pune (Dated : January 6, 2012)

Service Tax- CENVAT Credit – Cell Towers, prefabricated building, printer, office chair – neither Capital Goods, nor inputs for providing cellular telephone service: No doubt, components, spares and accessories falling under Rule 2(a)(A)(iii) can be held to be 'capital goods' for the purpose of CENVAT credit if these are shown to be components, spares and accessories of goods falling under any of the Chapters or Headings of the CETA Schedule specified in sub-clause (i). In the present case, the appellant's bid to show that the 'Cell Site' is goods falling under Chapter 85 specified in sub-clause (i) has failed and consequently their plea for treating the tower and parts thereof as components falling under sub-clause (iii) has to be rejected.

Tower is not component of antenna : A component or part of any goods means something which is required to make such goods a finished item. In other words, only those articles which would go into the composition of another article can be considered to be components or parts of the latter. This is just a matter of common sense. What might occur to the common man's prudent mind is also reflected in the meaning of the word 'component' found in dictionaries of the English language. In the

present case, GSM and MW antennas are finished goods classifiable under specific Tariff heading. The tower on which the antennas are placed cannot be considered as their component. The tower does not enter into the composition of the antennas. It is not a constituent part of the antennas. Therefore the argument that the tower should be considered as a 'component' of antenna to be classified as capital goods under Rule 2(a)(A)(iii), is rejected.

Towers as Inputs : If the towers and parts thereof are not capital goods falling under Rule 2(a)(A) of the CENVAT Credit Rules, 2004, it is argued, they are liable to be recognized as 'inputs' under Rule 2(k). If any item has to be brought within the ambit of this definition, it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable.

Pre Fabricated Buildings : PFBs fall under Chapter 94 which is not specified in sub-clause (i). They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods. The same conclusion can also be reached in respect of office chairs which are goods of Chapter 94. In the absence of evidence that the chairs or printers were used for providing mobile telephone service, both these items would stay outside the ambit of the definition of "input" also.




Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on GTA service availed by cane growers from fields to appellant's factory – Freight paid to transporters on behalf of cane growers – Prima facie case in favour of appellants – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Margadarsi Financiers Vs CCE, Hyderabad (Dated : October 10, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of tax under ‘renting of immovable property service' on royalty/rent collected for building given for commercial activity on ‘leave and licence' basis under MOU – Lessee liable to pay 6% royalty on sales in showroom to lessor (appellant) over a ten year period – No prima facie case in favour of appellant – Pre-deposit of Rs. 34 lakhs ordered – Section 35F of Central Excise Act, 1944 as made applicable to Service Tax vide section 83 of Finance Act, 1994


Arihant Telecommunication Vs CCE, Nashik (Dated : January 6, 2012)

Appellant paying VAT to the State Government on sale of SIM cards and under bona fide belief Service Tax was also paid under the same challans – later, amount transferred to Central Government account – matter remanded for verification: CESTAT [ para 5 ]



M/s Deluxe Tyre Retreading Vs CCE, Nashik (Dated : January 13, 2012)

Appellant under the bona fide belief that activity of tyre retreading is not liable to Service Tax - documents regarding purchase of inputs which were used in the said activity were not produced before adjudicating authority - since invoices produced by the appellant before CESTAT covers almost 35% of the amount of service provided, further deposit ordered of Rs. 1 lakh and after compliance matter to be heard afresh by adjudicating authority - Appeal as well as stay applications disposed of: CESTAT [para 4]


Gammons (I) Ltd Vs CCE, Nagpur (Dated : January 5, 2012)

Applicant undertaking activity of erection, commission and installation of transmission towers on behalf of Power Grid Corporation India Ltd. and classifying their activity under works contract service - Revenue alleging that activity is classifiable under the category of erection, commission and installation service and they are liable to pay service tax at the rate applicable - in view of Board Circular no. B1/16/2007-TRU dated 22.5.2007 activities undertaken by the applicant are covered under works contract services - prima facie demands are not sustainable - Stay granted: CESTAT [para 2]


M/s Phoniex Engineering Vs CCE, Nagpur (Dated : November 14, 2011)

Repairs, renovation, widening of roads etc. is not a 'Commercial or Industrial Construction Service' - in view of clarification given by CBEC in Circular dated 23.02.2009, appellant has established a prima facie case in their favour - Pre-deposit waived and stay granted: CESTAT [para 6]



M/s Ankita Constructions Vs CCE, Raipur (Dated : November 17, 2011)

Service Tax - Non-payment of service tax in spite of the fact that the service tax had been collected from the clients - Since during the period of dispute, the ST-3 returns had not been filed, penalty under Section 77 would be attracted and, hence, the same has been correctly upheld - Penalty under Section 78 - Though the appellant were regularly receiving payment from NMDC for the services provided, neither any service tax paid nor any returned was filed - Even if the appellant had any doubt about their service tax liability, at least they should have sought clarification from the department or disclosed the amount received by them for taxable services provided by filing ST-3 return - Provisions of Section 78 are attracted and penalty imposed under Section 78 is upheld.


M/s R K Transport Company Vs CCE, Raipur (Dated : January 25, 2012)

Service Tax - Cargo Handling Service vis-à-vis Goods transport Service - Activities of mining, loading and unloading - Service Tax paid by the receiver of the service under Goods Transport Agency Service and revenue demanded service tax from the appellant under Cargo Handling Service - Nothing in the contracts indicates that the contracts had any significant component of cargo handling other than, transportation -In the activities carried out by the appellants there appears to be a small component of loading and unloading of cargo - It is well settled that handling or transportation of goods within a factory or mining area does not amount to cargo handling because at that stage the goods are not cargo within the common meaning of the word - In the contracts under consideration there is a predominant activity of transportation - The cargo handling activity is incidental to transportation - Revenue's attempt to convert such services into cargo handling service to deny the abatement available to value of services of Transportation of Goods by Road is too farfetched to find any legal support - Contention of the appellants that they are rendering Transportation service is accepted - Demand set aside.


M/s Jothi Engineering Co Vs CCE, Coimbatore (Dated : September 19, 2011)

Service Tax - Construction of Complex service - Construction of quarters for Police officials under a contract with Tamil Nadu Police Housing Corporation - Following the ratio of 2010-TIOL-1734-CESTAT-MAD impugned orders set aside and matter remanded for fresh decision.


M/s Nitesh Estates Ltd Vs CCE, Bangalore (Dated : September 14, 2011)

Service Tax – Stay/Application of waiver of pre-deposit – Liability to pay service tax on construction of apartments for a client who in turn allotted it to its employees for residential use – Though issue highly debatable, Board's Circular No. 332/16/2010, dated 24.05.2010 in favour of appellant – Activity undertaken by appellant would fall within the ambit of exclusion clause of the definition of "residential complex" in section 65(105)(zzzh) – Pre-deposit waived and stay granted – Section 65(105)(zzzh) of Finance Act, 1994 – Section 35F of Central Excise Act, 1944 as made applicable to section 83 of Finance Act, 1994


State Bank Of India, Salem Vs CCE, Salem (Dated : September 29, 2011)

Service Tax – Short payment of Service Tax – Penalty under Section 76 – There was excess payment in three financial years and short payment in one financial year. Penalty under Section 78 set aside as there was no intention to evade payment of duty. Although extended period cannot be invoked the service provider has paid the service tax short paid along with interest. HELD – This is a fit case to invoke the provisions of Section 80. Penalty imposed set aside. (Para 5)


M/s Golflinks Embassy Business Park Vs CST, Bangalore (Dated : September 21, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Appellant paying service tax under Management, Maintenance & Repair service for maintaining areas coming under software park in terms of a maintenance agreement – Liability to pay service tax on charges collected towards ‘back up power supply' which is for sale of electricity generated from DG sets owned by appellant - Transaction involved only ‘sale of electricity' and hence, value of electricity sold cannot be part of value of ‘Management, Maintenance or Repair Services' - Prima facie case for full waiver of pre-deposit - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s DTDC Courier & Cargo Ltd Vs CCE & ST, Bangalore (Dated : September 14, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Authorization of several parties as courier service providers who received parcels/packets/letters from customer – Appellant acted as co-loader by collecting parcels/packets/letters from the said service providers and arranging to deliver at different destinations - Activities of applicant as 'Co-loader', prima-facie, falls under category of BAS inasmuch as applicant has rendered such services to other parties who provided courier services –Since, applicant failed to disclose relevant details to department, extended period invocable – Pre-deposit of Rs. 25 lakhs ordered – Recovery of balance dues stayed –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994



Service Tax - Stay/Application for waiver of pre-deposit – Refund of CENVAT Credit on input services in terms of Rule 5 of CENVAT Credit Rules, 2004 – Appellant engaged in provision of IT Software Service introduced w.e.f 16.06.2008 registered with service tax on 18.06.2008 – Refund of CENVAT Credit for period prior to date of registration denied by Commissioner through review order – Once service tax is leviable from 16.05.2008, prima facie it is not correct to deny benefit of credit on input services utilized from the said date – Original authority ordered sanction of refund of entire amount – Prima facie case for full waiver of pre-deposit of amount ordered to be recovered by review order – Pre-deposit waived and stay granted – Rule 5 of CENVAT Credit Rules, 2004 – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Globosport India (P) Ltd Vs CST, Bangalore (Dated : September 22, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Tri-partite agreements entered into by appellant with companies and celebrities for promotion of products/brands – Tax paid on entire amounts received from companies under the head of ‘Event Management' category – Demand raised on 20% amount retained as commission under head ‘Business Auxiliary Service' – Prima facie, treating 20% of the amount retained by appellant as representing payment for another service rendered by them to celebrities not sustainable – Full waiver of pre-deposit ordered and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Fiza Developers And Inter Trade Pvt Ltd Vs CCE & ST, Bangalore (Dated : October 5, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on civil works undertaken for erection of wind mills under ‘erection, commissioning and installation service' – Pre-deposit of Rs. 25 lakhs ordered – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


Arjun Tours & Travels Pvt Ltd Vs CST, Bangalore (Dated : December 22, 2011)

Service Tax - Appeals - Appeal against revisionary order passed by Commissioner exercising powers under section 84 of Finance Act, 1994 - No provision for appeal to Tribunal against an order passed by Commissioner of Service Tax under section 84 of Finance Act, 1994 after amendment to section 86 w.e.f 19.08.2009 through Finance Act, 2009 - Any order passed by Commissioner of Central Excise under section 84 of Finance Act, 1994 as a revisionary authority after 19.08.2009 not appealable before CESTAT


M/s Raymond Uco Denim Pvt Ltd Vs CCE, Nagpur (Dated : January 6, 2012)

Service Tax paid by job-worker although entitled to exemption notfn. 8/2005-ST -since Revenue has accepted the tax paid and no action has been initiated against job worker, prima facie case in favour - as regards credit taken on courier service employed for transportation of ‘samples' to various customers, since no evidence produced to show that courier expenses are part of price of samples, pre-deposit ordered of Rs. 10 lakhs: CESTAT [ para 9 ]



CC & C, Vadodara-II Vs M/s Hindalco Industries Ltd (Dated : December 14, 2011)

Service Tax – Royalty paid to Foreign Service provider during the year 2003 – Liability to pay tax on the service receiver – Assessee paid service tax on an objection raised by the department – Demand of interest and penalty – Prior to 18.4.2006, there is no liability to pay Service Tax - When there is no liability to pay Service Tax, even if the Service Tax is paid, the question of recovery of interest and imposition of penalty does not arise.


M/s Cargo Motors (Guj) Pvt Ltd Vs CC, Vadodara (Dated : November 30, 2011)

Service Tax – Business Auxiliary Service - Services like arranging finance from various Banks, insurance of the vehicles, coating/colour, incentive/labour etc - Since the appellant has not contested the merit of Service Tax liability before the adjudicating authority, taking up the issue on merits before the subsequent appellate authority will be incorrect position of law - Hence Service Tax and interest thereon is confirmed –Penalty – This is a fit case to invoke the provisions of Section 80 of the Finance Act, 1944 and to set aside the penalties imposed on the appellant under Sections 76, 77 and 78 of the Act for the reason that various decisions of the Tribunal are holding that the activities rendered by the appellant could not have been taxed under the category of 'Business Auxiliary Services'.


CCE & ST, Vapi Vs M/s Veena Industries Ltd (Dated : December 15, 2011)

Service Tax - Payment under wrong Service Tax Code - Adjustment of payment in correct accounting code - The service provider has paid the service tax on "installation and commissioning" which is in fact the payment of service tax for "annual maintenance and repairs" service category. The plea of the service provider that while making the payment, wrong service tax code relating to "erection, installation and commissioning" was indicated, merits to be considered and having regards to facts of the case and Board's Circular No.58/7/2003-ST, dated 20.05.03 adjustment of payment in the correct account code is allowed. (Para 5)


M/s Kiran Motors Ltd Vs CCE, Surat (Dated : December 1, 2011)

Service Tax - Authorised Service Station for vehicle manufacturer - Banking and Financial Services - Demand - CENVAT - New Grounds - Extended period - The assessee received a part of amount paid to the vehicle manufacturer by the Banking and Financial Institutions for vehicle loans given to customers – The assessee submits that the manufacturer has already paid service tax on the incentive received, they are not liable to pay service tax and hence interest is also not payable - Also the assessee took CENVAT credit of service tax paid on vehicles serviced by other service stations -Demand was raised for recovery of CENVAT credit and interest since assessee did not contest the service tax - It is also submitted that Tribunals have held that CENVAT credit is admissible on trading activity. Matter remanded to the lower authority as these aspects were not raised earlier for fresh consideration. (Para 4)


M/s Mercedes Benz India Private Ltd Vs CCE, Pune I (Dated : December 23, 2011)

Manufacturing of motor vehicles and trading activity of imported motor vehicles –common input services – whether rule 6 of the CCR, 2004 applicable – applicant has not made a prima facie case in view of Tribunal decision in Orion Appliances – Pre-deposit ordered of Rs.50 lakhs: CESTAT [para 9]



M/s Flair Filtration Pvt Ltd Vs CCE, Jaipur-I (Dated : November 17, 2011)

Service Tax - CENVAT Credit on outward transport service - According to the judgement of Karnataka High Court CENVAT credit in respect of the outward transportation from the factory/Depot to the customer's premises would be available only when the sale is on FOR destination basis in the sense that during transit, the risk of the loss/damage to the goods was of the assessee and the transportation charges were integral part of the assessable value on which the excise duty has been paid - Appellant's plea that the sale is on FOR destination basis need to be verified -Matter remanded to the Commissioner (Appeals).


M/s Andhra Bank Vs CC, CE & ST, Hyderabad (Dated : October 3, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of service tax for the period from 10.09.2004 to 31.03.2006 through SCN issued on 26.11.2008 contested on the ground of limitation – SCN merely mentions non-declaration of P & T charges collected from customers for providing Banking and Other Financial Services in ST-3 returns – SCN did not allege any suppression of facts with intention to evade payment of tax – Prima facie case for full waiver of pre-deposit – Stay granted –Section 35F of Central Excise Act, 1944 as made applicable to service tax vide Section 83 of Finance Act, 1994


M/s Vertex Trading And Services Pvt Ltd Vs CST, Bangalore (Dated : October 11, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on overriding commission received for canvassing of purchase orders for Singapore based company – Prima facie , appellant supported by Board's Circular No.111/5/2009-ST dated 24.2.2009 and Rule 3(1)(iii) read with Rule 4 of Export of Service Rules, 2005 – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


CCE, Mysore Vs M/s J K Tyre & Industries Ltd (Dated : September 28, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on ‘outdoor catering service' – CENVAT credit on 'outdoor catering service' available if assessee produces evidence of (a) strength of factory workers being above 250 in each factory and (b) there is no recovery from workers towards cost of service – Lower authority to conduct verification and give reasonable opportunity to adduce evidences – Rule 2(1) read with Rule 3 of CENVAT Credit Rules, 2004


M/s Shyamali Exports Vs CST, Chennai (Dated : October 14, 2011)

Service Tax – Stay/Dispensation of pre-deposit - Refund of service tax in case of exports – Relevant date – Date when payment for services exported was received is the relevant date – Prima facie case has been made out for waiver of pre-deposit.


Truetzschler India Pvt Ltd Vs CCE, Coimbatore (Dated : October 12, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Consulting Engineer Service -Demand of service tax on reimbursement amount received by the service engineers for rendering service of erection and commissioning of textile machineries – Prima facie case made out for waiver of pre-deposit as prima facie the service would fall under “Erection, Commissioning and Installation service”, but not under “Consulting Engineer service”.


Thomas Cook (India) Ltd Vs CCE, Hyderabad (Dated : September 19, 2011)

Service Tax - Stay/Application for waiver of pre-deposit - Liability to pay service tax on ‘out bound tours' under ‘Tour operator service' - Activities undertaken include booking of air tickets, visa formalities, arrangement for hotel stay at places outside India, food, local travel in places outside India – Tax already paid by appellant under the head ‘Air Travel service' on airfares from India to the first destination in foreign country and for airfares from last destination abroad to first destination in India -Board's Circular No. 43/10/97-TRU dated 22.08.97 clarifies that outbound tours outside purview of levy of service tax - Stay already granted in a similar case by Tribunal = (2011-TIOL-1389-CESTAT-BANG) - Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


International Agricultural Processing (P) Ltd Vs CCE (ST), Madurai (Dated : October 27, 2011)

Service Tax – Refund of service tax under Notifications No 41/2007 ST dated 6.10.2006 and 17/2009 ST dated 7.7.2009 - Notification No 41/2007 had a condition that the storage and warehouse is exclusively used for the purpose of storage or warehouse of the export goods - There is no such condition in the successor

notification applicable from 7.7.2009 - Since the appellants have stored some inputs in addition to export goods in the impugned warehouse, refund is allowed only for the period with effect from 7.7.2009 – Matter remanded for re-calculation of refund amount.


M/S ICM English Centre Vs CST, Bangalore (Dated : October 11, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on the activity of providing training courses in English, German, French to enable students to seek employment in call centres – If English is to be considered as foreign language, appellant can claim benefit of exemption under Notifications No.9/2003-ST and No.24/2004-ST – Appellant already registered with department and paying tax under ‘Franchise services' and did not pay tax for the activity of training in English under the head ‘Commercial training or coaching service' under a bonafide belief that they were eligible for exemption under relevant notifications – Prima facie, appellant cannot be held to have suppressed facts with an intent to evade payment of tax – Full waiver of pre-deposit ordered and stay granted – Section 35F of Central Excise Ac, 1944 as made applicable to Service Tax vide section 83 of Finance Act, 1994


M/s Siemens Limited Vs CCE, Pondy (Dated : September 16, 2011)

Service Tax – Suo moto adjustment of excess Service Tax paid - Demand – Stay / Dispensation of pre-deposit – Demand confirmed as suo motu adjustment was not carried out towards service tax liability for the succeeding month or quarter as required in terms of Rule 6 (4A) of the Service Tax Rules, 1994, but excess payment was made in October 2006 whereas adjustment was made in June 2007 - Adjustment made immediately after issue of credit note. Prima facie case made out for waiver of pre-deposit. Stay granted. (Para 2)


M/s Heidelberg Cements India Ltd Vs CCE, Bangalore (Dated : September 30, 2011)

Central Excise/Service Tax - Appeal filed before Commissioner (A) in Form ST-4 against O-I-O passed by original authority for recovery of irregular CENVAT credit with interest - On the one hand appeal filed in Form ST-4 whereas section 35 of CEA mentioned in cause title - No mention of section 85(3) of Finance Act, 1994 in COD application before Appellate Commissioner - Appellant confused with regard to invocation of appropriate provisions - Matter remanded to Appellate Commissioner to reconsider COD application


M/s Choudhury Industries Pvt Ltd Vs CST, Kolkata (Dated : November 4, 2011)

Service Tax – Delay of 23 days in filing appeal before Commissioner (A) – Appeal condonable by Commissioner (A) within further three months under section 85 of Finance Act, 1994 – Apex Court decision in Collector, Land Acquisition vs. MST Katiji & Ors - ( 2002-TIOL-444-SC-LMT ) followed – Impugned order set aside and matter remanded to Commissioner (A) for deciding case on merits


M/s Municipal Corporation, Jalandhar Vs CCE, Ludhiana (Dated : January 23, 2012)

Service Tax- Is Advertisement Tax collected by Municipal Corporation liable to Service Tax? Issues to be referred to Third Member:

i) Is the activity of the Appellant, in the background of the facts of this case, prima-facie covered by Section 65(105)(zzzm) of the Finance Act, 1994 for being subjected to service tax as service in relation to sale of time or space for advertisement?

ii) Can the advertisement tax collected by the Appellant from M/s Shri Durga Publicity and Others on their advertisement revenue, under the Appellant's resolutions ratified by Government of Punjab, be prima-facie called consideration for the service in relation to sale of advertising space alleged to have been provided by them?

iii) Is the Department case against the Appellant without any basis and hence the requirement of pre-deposit under Section 35F of Central Excise Act, 1944, as made applicable to service tax matters by Section 83 of the Finance Act, 1994, must be waived or the Department has prima-facie case and pre-deposit as proposed by the learned Member (Judicial) must be ordered for hearing of the appeal?



M/s RRB Energy Limited Vs CST, Chennai (Dated : October 13, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Part of the demand is prima facie time barred - Part of the demand already paid - Demand was raised for tax under a particular category, while the impugned order demands tax in another category, which was not the case made out in the show-cause notice - Prima facie case made out for waiver of pre-deposit.


M/s Invest Mentore Securities Ltd Vs CCE, Ahmedabad (Dated : December 7, 2011)

Service Tax - Stock Broker Service - Demand of Service Tax on NSE/BSE transaction charges and DEMAT Charges - Stay/ Dispensation of pre-deposit - Stay granted in similar cases. Hence stay petition allowed. (Para 2)


M/s Madhav Nagrik Sahkari Bank Ltd Vs CCE, Indore (Dated : January 25, 2012)

Service Tax - "Banking and Other Financial Services" – A bank run by Co-operative Society liable to pay tax: The Short point for decision in these appeals is whether a co-operative society is covered by the expression "or any other body corporate, or any other person" used in sub-section 65 (105) (zm) and sub-section 65 (12). Tribunal did not agree that the expression is used in Finance Act 1994 for giving exemption to co-operative societies. By borrowing this expression from Companies Act, it brings in all the entities covered by Finance Act, 1994 section 2 (7) of the Companies Act, into the ambit of Finance Act, 1994 and if there was no other expression which could have brought co-operative societies into the scope of the entry it would have remained outside the scope of section 65 (105) (zm). If there is an expression which can otherwise cover co-operative societies it would get covered. So, the real point to be examined is whether the expression "any other person" can bring in co-operative society; The very fact that section 2 (7) of the Companies Act specifically excluded co-operative society shows that in many respects co-operative society is of the same genus as a company. It was necessary to keep the co-operative society out of the many controls of the Companies Act. So, it is specifically excluded though both are of the same genus. The fact that co-operative societies are controlled not by the elaborate procedure of companies Act but by similar but simplified controls through different enactments does not mean that for taxing the services rendered by co-operatives, such societies would be on a different footing as compared to services provided by a company unless and until such intention is specifically manifested in the taxing statute itself. Since no specific exclusion is made in Finance Act, 1994, co-operative societies will be covered by the expression "any other person" used in section 65(105) (zm) and 65(12) of Finance Act, 1994.

Penalty : This is a case where the appellants were registered as a service tax assessee and paying service tax. From one point of time they just stopped, on their own, paying such tax arguing that they had a new interpretation. There was no ground for adopting a new interpretation and penalty under section 76 is rightly imposed. Punjab & Haryana High Court has held in the case of First Flight Couriers Ltd- (2011-TIOL-67-HC-P&H-ST) that simultaneous penalties under sections 76 and 78 are not warranted. In the present case, penalty under 76 is more appropriately payable than penalty under section 78. So, the penalty under section 76 upheld and penalty under section 78 set side.



M/s Bangalore Development Authority Vs CST, Bangalore (Dated : September 21, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Franchise service received by Indian company not taxable prior to 18.04.2006 – Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to section 83 of Finance Act, 1994


M/s City Union Bank Limited Vs CCE (Service Tax), Trichy (Dated : October 7, 2011)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit on Share Registry Services – Prima facie case has been made out for waiver of pre-deposit in view of the Stay order passed by the Tribunal in 2011-TIOL-349-CESTAT-BANG


M/s Prakash Shipping Agencies Vs CST, Chennai (Dated : October 13, 2011)

Service Tax – Stay/Dispensation of pre-deposit - CHA service – Brokerage received during the period from 01.07.2003 to 31.07.2007 – Prima facie case has been made our for waiver of pre-deposit.

Demand of service tax on reimbursable expenses – No prima facie case has been made out as the Commissioner held that no supporting documents were produced.


CST, Bangalore Vs M/s Central Warehousing Corporation (Dated : September 27, 2011)

Service Tax - Stay on refund order - Refund granted by Appellate Commissioner on the ground that CWC had not rendered any Storage and warehousing service and amount paid by them cannot be treated as service tax, accepted by Revenue in first round of litigation - In second round of litigation, Appellate Commissioner allowed the claim as not hit by time limitation - No challenge by Revenue in appeal memo on reliance placed by Appellate Commissioner on Board' Circular or Tribunal's decision -No valid ground raised to stay operation of order


M/s Hindustan Oil Exploration Co Ltd Vs CST, Chennai (Dated : September 19, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Services received from outside India – Inclusion of TDS, Indian direct tax borne by the service recipient - There is no

specific exclusion in the Finance Act, 1994 to exclude the income tax paid in respect of the amount paid for the services received from abroad - At the same time, prima facie, it appears that the gross amount charged for the services cannot be said to include income tax deducted at source as per the income tax statute.

Local expenditure relating to booking of airfare, accommodation etc., in respect of the foreign service provider –The appellants have claimed that in respect of these charges and services also service tax has been paid by the appellants to the concerned service providers - Prima facie, for the same services provided, for which taxes have been paid by the concerned service providers and collected from the appellants, a second demand cannot be raised against the appellants.


M/s ITC Ltd Vs CCE, Bangalore (Dated : September 21, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Eligibility of CENVAT Credit of service tax paid on GTA service utilized for transport of cigarettes from factory gate to warehouse - Board's Circular F. No. 137/3/2006-CX.4, dated 02.02.2006 or High Court decision in ABB Ltd - (2011-TIOL-395-HC-KAR-ST) not applicable after 01.04.2008 – However, Appellate Commissioner allowed claim of appellant in subsequent case relying on Board Circular ibid – Prima facie case for full waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s ASE Capital Markets Limited Vs CCE, Ahmedabad (Dated : November 22, 2011)



M/s ADF Foods Ltd Vs CCE, Ahmedabad (Dated : November 24, 2011)

Service Tax - Refund of Service tax paid on services used for export of goods -Terminal Handling Charges - Stay / Dispensation of pre-deposit - Refund of service tax paid on terminal handling charges originally sanctioned, demanded under order of revision. Terminal handling charges is not one of the services notified in Notification No.41/2007-ST, which provides for refund of Service Tax paid on various services used in exported goods. Prima facie no case made out for waiver of pre-deposit. (Para 2 & 5)


M/s Rajvi Stock Broking Ltd Vs CST, Ahmedabad (Dated : November 25, 2011)



M/s Sun-N-Step Club Ltd Vs CCE, Ahmedabad (Dated : November 22, 2011)

Service Tax - Business Auxiliary Service - Health Club and Fitness Service - Club or Association Service - Demand - Stay / Dispensation of pre-deposit - Service tax liability on the amounts received from caterers or decorators under Business Auxiliary Services, is arguable. Also, service tax liability under the Health and Fitness Centre and Club Association services have been confirmed by taking wrong figures. Prima facie case not made out for complete waiver of pre-deposit. Conditional stay granted . (Para 5)


M/s Bharti Airtel Ltd Vs CCE, Pune (Dated : January 6, 2012)

Service Tax- CENVAT Credit – Cell Towers, prefabricated building, printer, office chair – neither Capital Goods, nor inputs for providing cellular telephone service: No doubt, components, spares and accessories falling under Rule 2(a)(A)(iii) can be held to be 'capital goods' for the purpose of CENVAT credit if these are shown to be components, spares and accessories of goods falling under any of the Chapters or Headings of the CETA Schedule specified in sub-clause (i). In the present case, the appellant's bid to show that the 'Cell Site' is goods falling under Chapter 85 specified in sub-clause (i) has failed and consequently their plea for treating the tower and parts thereof as components falling under sub-clause (iii) has to be rejected.

Tower is not component of antenna : A component or part of any goods means something which is required to make such goods a finished item. In other words, only those articles which would go into the composition of another article can be considered to be components or parts of the latter. This is just a matter of common sense. What might occur to the common man's prudent mind is also reflected in the meaning of the word 'component' found in dictionaries of the English language. In the present case, GSM and MW antennas are finished goods classifiable under specific Tariff heading. The tower on which the antennas are placed cannot be considered as their component. The tower does not enter into the composition of the antennas. It is not a constituent part of the antennas. Therefore the argument that the tower should be considered as a 'component' of antenna to be classified as capital goods under Rule 2(a)(A)(iii), is rejected.

Towers as Inputs : If the towers and parts thereof are not capital goods falling under Rule 2(a)(A) of the CENVAT Credit Rules, 2004, it is argued, they are liable to be recognized as 'inputs' under Rule 2(k). If any item has to be brought within the ambit

of this definition, it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable.

Pre Fabricated Buildings : PFBs fall under Chapter 94 which is not specified in sub-clause (i). They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods. The same conclusion can also be reached in respect of office chairs which are goods of Chapter 94. In the absence of evidence that the chairs or printers were used for providing mobile telephone service, both these items would stay outside the ambit of the definition of "input" also.




Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on GTA service availed by cane growers from fields to appellant's factory – Freight paid to transporters on behalf of cane growers – Prima facie case in favour of appellants – Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Margadarsi Financiers Vs CCE, Hyderabad (Dated : October 10, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of tax under ‘renting of immovable property service' on royalty/rent collected for building given for commercial activity on ‘leave and licence' basis under MOU – Lessee liable to pay 6% royalty on sales in showroom to lessor (appellant) over a ten year period – No prima facie case in favour of appellant – Pre-deposit of Rs. 34 lakhs ordered – Section 35F of Central Excise Act, 1944 as made applicable to Service Tax vide section 83 of Finance Act, 1994


M/s Kasturi & Sons Ltd Vs CCE, Chennai (Dated : September 19, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Making available space on the website of the appellants is prima facie taxable under Section 65(105)(zzzm) of the Finance Act, 1994 - Plea that the service would amount to export of service prima facie is not acceptable - On limitation also no prima facie case has been made out -Pre-deposit of Rs 35 lakhs ordered.



M/s Jubilant Life Sciences Ltd Vs CCE, Noida (Dated : November 29, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Banking and other Financial Service received from outside India – The appellants have received services provided by the underwriters which is taxable under Section 65(105)(z) read with Section 65(116) & 65(117) - The services of managing the issue is covered by the definition of Banking and other Financial Services (Merchant Banking Services) as defined in Section 65 (105)( zm ) read with Section 65(12) of Finance Act, 1994 and Section 2(e) of SEBI Merchant Bankers Rules – Prima facie, the services received are taxable – Pre-deposit of Rs 50 lakhs ordered.


M/s Vikas Metalliks & Energy Ltd Vs CCE, Raipur (Dated : October 24, 2011)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit on M.S. Beams, M.S. Channels, H.R. Sheets, MS Angles etc denied on the ground that these items were used for providing support structures – Appellant's contention that the same were not used for supporting structures is a question of fact and the same can be decided only at the time of final hearing.

CENVAT Credit on Tippers – In addition to main activity of crushing and screening of iron ore lumps, the other activities such as unloading of iron ore lumps at the railway siding, arranging its transportation to the factory and loading of the processed goods into the trucks are auxiliary activity and their activity would have to be classified as Business Auxiliary Service only and in that event the tipper used by them cannot be treated as capital goods – Pre-deposit ordered.


Percept D'mark (India) Ltd Vs CST, Mumbai (Dated : November 8, 2011)

Arranging of celebrities for promotion and publicity is not an advertisement agency service prior to 01.07.2003 - Strong prima facie case - Pre-deposit waived and Stay ordered: CESTAT [para 4]



M/s Kalpataru Power Transmission Ltd Vs CCE, Ahmedabad (Dated : January 2, 2012

Service Tax – Stay/Application for waiver of pre-deposit – Order passed by lower authority held that appellants activity did not come under Consulting Engineers service but w.e.f 01.07.2003 it was liable to tax under Erection, Commissioning and Installation service – Appellant not put to notice about classification of their activity under Erection, Commissioning and Installation service – When SCN does not put the appellant to notice for classification under a particular service head but proposes to classify the activity under another head for the entire period of demand, prima facie case for full waiver of pre-deposit – Lower authority dropped proceedings for classifying activity under Consulting Engineers service and Revenue did not appeal against this portion of order – Board Circular dated 08.08.2007 specifically directs that services undertaken by appellant classifiable under category of Erection, Commissioning and Installation service for which appellant was not put on notice –Full waiver of pre-deposit ordered and stay granted


M/s Nicco Corporation Ltd Vs CST, Kolkata (Dated : November 16, 2011)

Service Tax – Eligibility of credit of service tax paid on outward transportation of goods – Credit claimed based on clarification issued in Board Circular dated 23.08.2007 that credit allowable if freight charges are included in cost of final products – No evidence put forth to support the claim that freight cost was part of price of final products – Prima facie no case made out for waiver of pre-deposit on this aspect

Liability to discharge service tax under BAS – Appellant engaged in activity which is classifiable under BAS but claimed benefit of Notification No. 21/05-ST – Since appellant engaged in activity involving goods like petrdidish, dental powder, medical equipments, semi-conductors, irradiation of O ring, LDPE Gaskets etc which are not covered by the said notification, in addition to gems and jewellery, prima facie no case made out for waiver of pre-deposit

Liability to pay service tax on laying of cables – Activity of laying of cables not subject to levy of service tax as clarified by Board vide Circular dated 24.05.2010 – Prima facie case for waiver of pre-deposit

After considering facts and circumstances, pre-deposit of Rs. 31 lakhs ordered – Pre-deposit of remaining dues waived


CCE, Nagpur Vs C B Mor (Dated : December 19, 2011)

Whether the appellants who are actually selling SIM Cards of BSNL to the customers are liable to service tax or not - on similar issues unconditional stay has been granted by CESTAT - no case for granting stay in favour of Revenue - stay applications rejected: CESTAT


M/s National Aviation Company Of India Vs CCE, New Delhi (Dated : November 29, 2011)

Service Tax - Stay/Dispensation of pre-deposit - Tour Operator service - Package tour conducted by Indian Airlines (National Aviation Company Of India) with providing of air transport, transportation from airport to hotel and back to airport, room accommodation in hotel, provision for food and beverages and sight-seeing for a lumpsum price - In view of the fact that service tax on Domestic Air Travel came into force only with effect from 01-07-2010, that too only to the extent of Rs.100 per journey or 10% of the ticket whichever is lower, prima facie there is something incongruous in demanding service tax at full rate on the gross amount - Considering the financial hardship faced by the Company, full waiver of pre-deposit granted.


CST, Bangalore Vs M/s Gowri Computers (P) Ltd (Dated : September 28, 2011)

Service Tax – Levy of penalties under sections 76 & 78 of Finance Act, 1994 for default in payment of service tax and filing of periodical returns – When SCN does not allege any of the ingredients of section 78, mere mention of section 78 or proposal to levy penalty under section 78 would not suffice – Levy of penalty under section 78 not sustainable – When default in payment of service tax is an admitted fact, invocation of section 76 and levy of penalty @ Rs. 100/- per day by original authority sustained –Order of Commissioner (A) set aside

Correctness of Board's Circular No. 137/2007-ST under law – Circular clarifying section 73(3) incorrect in as much as this provision only prohibits issue/service of SCN under sub-section (1) in r/o payment made by the party – As per section 73(3), there shall be no SCN under 73(1) in r/o service tax already paid by the party – There is no bar to issue SCN for imposing a penalty – Board's clarification does not disclose the correct legal position, not applicable to facts of instant case



Information Kerala Mission Vs CCE & CC, Thiruvananthapuram (Dated : October 10, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Liability to pay service tax on services rendered to local self government bodies – Service tax amounting to Rs. 44 lakhs already collected from service recipients and 50% of the same deposited with exchequer prior to issue of SCN – Prima facie no case in favour of appellant – Balance amount of service tax amounting to Rs. 22 lakhs to be pre-deposited – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


M/s Bangalore Club Vs CST, Bangalore (Dated : September 21, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Club or Association Service – Liability to pay service tax on ‘entry fee' collected from members of club – Prima facie no case made out for full waiver of pre-deposit – Pre-deposit of Rs. 50 lakhs ordered – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994


Indian Oil Corporation Ltd Vs CCE, Goa (Dated : January 6, 2012)

Since Facilitation charges and additional handling charges are included in the assessable value, they are not liable for Service Tax – Prima facie case in favour –Pre-deposit waived and Stay granted: CESTAT [ para 6, 7]



M/s Dabur India Ltd Vs CCE, Vapi (Dated : December 19, 2011)

Service Tax – No liability to pay tax on legal services received from outside India prior to 07.09.2009 – As regards liability on advertisement services, issue arguable – Pre-deposit of Rs. 2 lakhs ordered


Shri K C Naik Vs CST, Mangalore (Dated : October 10, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – Demand of service tax on ‘tour operator service' for the period from December 2002 to May 2005 – Contention that appellant came into ambit of ‘tour operator service' only after definition of ‘tour operator' widened w.e.f. 16.05.2008 – Stay granted in similar cases – Prima facie case for waiver of pre-deposit – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide Section 83 of Finance Act, 1994


M/s Gulf Oil Corpn Ltd Vs CCE, Vapi (Dated : December 1, 2011)

Service Tax - CENVAT - Input Service - Trading Activity - The assessee procured goods in the same truck part of which was used for manufacture and part meant for trading purpose. The Service Tax credit in respect of input service attributable to trading activities is not available as credit. (Para 4)


M/s Smart Chip Ltd Vs CCE, Bhopal (Dated : November 15, 2011)

Service Tax - Business Auxiliary Service - The appellant had obligation to establish a central server in different offices of the transport department - Object of the contract is to build a system - Revenue also fails to get help in piecemeal reading of the law without proving that the services provided by the appellant was auxiliary in nature to serve the purpose of business of client - By no stretch of imagination, building a system can be conceived to be "Business Auxiliary Service" - Demand set aside.


M/s India Tube Mills & Metals Industries Ltd Vs CCE, Mumbai (Dated : July 22, 2011)

Mobile phones in the name of Director of Company Cenvat Credit of Service Tax cannot be denied Prima facie case Stay granted: CESTAT



M/s Ascent Marketing And Services Vs CCE, Bhopal (Dated : December 16, 2011)

Service Tax - Cleaning Services - Adjustment of excess service tax paid - Stay / Dispensation of pre-deposit - The assessee has paid service tax, which was not required to be paid in the first instance and hence adjusted the same towards future liability. Demand was confirmed for the amount so adjusted as the same amounted to suo moto refund of service tax paid. Prima facie no case made out for stay. Pre-deposit ordered. (Para 6 & 7)


M/s Six Sigma Certification (P) Ltd Vs CCE, Noida (Dated : October 12, 2011)

Service Tax – Stay/Application for waiver of pre-deposit – CENVAT Credit – Denial of credit on invoices issued by five star hotels for renting out conference rooms on the ground that invoices did not contain details as per Rule 4A of Service Tax Rules, 1994 read with Rule 9 of CENVAT Credit Rules, 2004 – Invoices issued by five star hotels for providing conference rooms with amenities to appellant for conducting training programs – No denial of fact that appellant availed services of five star hotels for hiring conference rooms for providing commercial training or coaching service and provision of services corroborated by hotels providing letters in this regard – Service of providing conference rooms comes within the purview of Mandap Keeper service and aggregate value of such services is the amount received by the Mandap keeper for such service – If the amount indicates the value of food separately, the service provider is eligible for claiming rebate and if they have not claimed such rebate, Revenue cannot force such a service provider to claim abatement – Invoice for an amount of Rs. 8722 issued in the name of director doubtful, pre-deposit of Rs. 8722 ordered – Pre-deposit of balance amounts waived and stay granted during pendency of appeal – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994

Denial of credit on invoices issued by telecom service providers – Objections relating to missing details furnished subsequently – Pre-deposit waived and stay granted during pendency of appeal – Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994



CCE, Daman Vs M/s Asian Plastowares Pvt Ltd (Dated : November 11, 2011)

Service Tax - Filing of Appeal - In respect of each order, a separate appeal is required to be filed. (Para 4)

Filing of Appeal - Proper Proforma - The filing of Service Tax Appeal in a wrong proforma is a technical and rectifiable mistake and an appeal cannot be dismissed on this ground. (Para 4)

Appeal - Grounds - Refund - Once the sanctioning authority has allowed refund, the only conclusion would be that he has verified whatever is required to be verified and if any contrary claim is made, it is for the person who makes such contradictory claim to prove that the original adjudicating authority had failed in his duty. If Revenue wanted to appeal on this ground, proper course was to verify whether the Service Tax is paid by the service provider and the receiver and then file the appeal. (Para 4)

Non-mentioning of Registration Number in invoice by service provider - Refund -When the service recipient pays the tax, it is quite possible that the service provider may not be registered. Obviously, he cannot provide registration number. Once it is clear that the Service Tax is paid by the recipient, he was eligible for refund and on technical ground without showing that payment was not made, refund cannot be rejected. (Para 4)


Balmer Lawrie & Co Ltd Vs CCE, Raigad (Dated : November 4, 2011)

Service Tax - Storage and warehousing Services - Demand - Stay / Dispensation of pre-deposit - Demand of service tax for storage of uncleared cargo sold under auction under the category of storage and warehousing service rendered. In an identical issue stay granted. Following the same, stay is granted during the pendency of appeal. (Para 5)


M/s Suryakant Earthmoving Equipments Co Vs CCE, Vadodara (Dated : December 21, 2011)

Laying pipeline for transport of gas - whether liable to Service Tax under the category 'Commercial Construction Service' or does it stand excluded in view of the definition of 'Erection, Commissioning and Installation Service' - issue arguable - Prima facie case in favour on limitation- Pre-deposit waived and Stay granted: CESTAT [para 7,8]



Bafna Motor Transport Co (Poona) Vs CCE, Pune (Dated : December 13, 2011)

Applicant hiring trucks from the truck owners and providing it for transport of goods to their customers and their customers are paying service tax on these services - as the service tax has been paid on the whole activity by the service recipient, no service tax is required to be paid by the applicant - Requirement of pre-deposit waived - Stay granted: CESTAT. [para 2]


CCE, Nagpur Vs M/s Uni-Derinted Ltd (Dated : August 17, 2011)

Service Tax - CENVAT - Credit of Workmen Compensation Insurance Policy services -Service Tax paid on Group Insurance Health Policy also fall in the category of input services. Credit available. (Para 2 & 3)


M/s Bharti Airtel Ltd Vs CST, Delhii (Dated : December 8, 2011)

Service Tax - Telecom Services - Valuation - Amount actually realised - SCN issued based on audit report - Burden of proof - Based on audit report, demand confirmed on excess realisation of service consideration. However no evidence produced to substantiate the claim. The figures reflected in Balance Sheet and Profit and Loss account not properly appreciated by the adjudication authority. Matter remanded to the original authority with directions to provide copy of the audit report to the service provider and re-adjudicate the matter based on documentary evidence. (Para 5)


Mrs Jaspreet Kaur & Mr Gagandeep Singh Vs CCE, Delhi (Dated : December 7, 2011)

Service Tax - Business Auxiliary Service - Distributor - Demand - SSI Exemption -Brand Name - Service Provider claims benefit of SSI Exemption in terms of Notification No. 6/2005, which is denied on the ground that they are providing the services under a brand name . Providing of service to a brand name owner does not disentitle the service provider the benefit of SSI Exemption. Matter remanded to the original adjudicating authority for deciding the issue of applicability of small scale notification. (Para 3 & 4)


M/s Bain & Company India Pvt Ltd Vs CST, Delhi (Dated : October 5, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Manpower Supply service -Employees of holding company in USA sent to Indian subsidiary – Whether amounts to receiving Manpower supply service – Indian subsidiary paying salaries to the employees and other than P.F. no other amount is paid to the foreign company – In terms of Board's Circular, the persons supplied are the employees of the supply agency who receive their salaries/wages and other allowances from such agency are only covered under Manpower supply service – Prima facie case made out for waiver of pre-deposit.


M/s GMK Concrete Mixing Pvt Ltd Vs CST, Delhi (Dated : November 4, 2011)

Service Tax – Supply of ready mix concrete - Record does not reveal involvement of any taxable service aspect in the entire supply of RMC -The contract appears to be a sale contract instead of a service contract - In absence of cogent evidence to the effect of providing taxable service, primary and dominant object of the contract throws light that contract between the parties was to supply ready mix concrete (RMC) but not to provide any taxable service - Finance Act 1994 not being a law relating to commodity taxation but services are declared to be taxable under this law, the adjudication made under mistake of fact and law fails.


Inox Air Products Ltd Vs CCE, Nagpur (Dated : November 16, 2011)

Appellant collecting consideration for plant operation and maintenance and discharging Service tax liability – clients supplying electricity free of cost for the said service – such cost will have to be included in the value of the taxable services rendered – s. 67 of the FA, 1994 and Rule 3 of the Service Tax (Determination of Value) Rules, 2006 is clear in this regard – No prima facie case – Pre-deposit ordered of Rs. 1 crore: CESTAT [para 7]

Miscellaneous application seeking to reclassify the service rendered under the category “Maintenance and Repair Service” - Appellant has never disputed the classification of service and they have been discharging the service tax liability under the category of “Consulting Engineers” right from the beginning - they have also not raised this contention before the adjudicating authority or in the appeal memorandum - therefore the issue of classification of service was never a point for decision before the adjudicating authority and the only point for decision was the valuation of the services rendered - Any change in classification can only be prospective and the issue has to be raised before the appropriate authority for consideration and decision –Miscellaneous application not maintainable. [para 5.1]



M/s M Power (Arena Multimedia) Vs CCE, Pune (Dated : October 17, 2011)

Service Tax - Valuation - Commercial Training and Coaching - Demand - Penalty - The service provider, out of the total receipt of service remuneration, paid 20% as franchise commission to their principal and discharged service tax only on 80% of the service remuneration. The franchise paid service tax on the 20% amount received from the service provider.

HELD - The service provider is liable to pay Service Tax on the whole amount of the services rendered. If they have paid a certain amount as a franchise commission to their principal, they have to pay Service Tax on that and are entitled to take input service credit of the same. As the service provider was in bona fide belief that the amount of services rendered by them, which has been shared by the principal, they are not liable to pay the Service Tax, the service provider is entitled to get the benefit of the provisions of Section 80 of the Finance Act, 1994. Therefore, penalty is dropped. (Para 6 & 7)


CCE, Meerut Vs M/s Shakumbari Automobiles Pvt Ltd (Dated : October 21, 2011)

Service Tax - Authorised service station - Free after sales services are provided to boost the sale of the vehicles and the amounts are not being reimbursed by the manufacturers, not liable for service tax .


DSP Merrill Lynch Ltd Vs CST, Mumbai (Dated : December 20, 2011)

Very purpose of issue of s. 37B Circular is to ensure that there is uniformity in the classification of excisable goods, in this case service tax - if there were divergent views necessitating the need for an issue of 37B Circular, prima facie , the appellant have made out a case to show that they were under bona fide belief that the services rendered by them were not taxable – stay granted: CESTAT [ para 5, 6 ]



M/s Doshion Ltd Vs CCE, Ahmedabad (Dated : December 16, 2011)

Service Tax – Stay/Dispensation of pre-deposit – CENVAT Credit on services like Travel Agent, Custom House Agent, Tour Operator, Telephone, Insurance and Courier etc – Since the issue involved is a question of interpretation, the appellant has made out prima facie case on limitation – Pre-deposit waived.


M/s M P Police Housing Corporation Ltd Vs CCE, Bhopal (Dated : December 8, 2011)

Appellant body consists of various working officers of the Police department who are managing the affairs of the Corporation - since neither the corporation nor individuals are professionally qualified engineers or an engineering firm, prima facie they would not be covered by the definition of consulting engineers - Pre-deposit waived: CESTAT [para 5]



CST, Ahmedabad Vs M/s Nova Petrochemicals Ltd (Dated : December 8, 2011)

Service Tax - Goods Transport Agency Service - Service Tax liability can be discharged through CENVAT credit - Issue is no longer res- interga in view of the Karnataka High Court decision in case of Aravind Fashions Ltd - Revenue appeal has no merit.


M/s Turkish Airlines Vs CST, Delhi (Dated : November 16, 2011)

Since the amounts of Passenger Service Fees and Airport Taxes collected by the airlines were not for the services provided by them, it is prima facie doubtful whether these can be considered as value of service rendered - Pre-deposit waived & stay granted: CESTAT [para 5]



M/s C M Goenka & Co Vs CCE, Jaipur (Dated : September 21, 2011)

Service Tax - Stock Broker service - Demand of service tax on the sub-broker on the commission received from the main broker under “ Business Auxiliary Service” - The appellant, being a sub-broker are covered by the definition of stock broker and even as sub-broker, their activity in connection with sale or purchase of securities listed on stock exchange for their clients has to be treated as service provided by stock broker in connection with sale or purchase of securities covered by Section 65 (105) (a) of the Finance Act, 1994 - The activity of sub-broker cannot be said to be Business Auxiliary Service provided to the main broker - Matter remanded to the Commissioner (Appeals) in view of the Larger Bench decision in case of Vijay Sharma & Co. vs. CCE, Chandigarh.


M/s BSNL Vs CCE, Allahabad (Dated : November 1, 2011)

Service Tax – Demand of service tax by the jurisdictional officers of “ Banda” office of the appellants – Appellants contend that the service tax has been paid at their “Lucknow” office where they are registered centrally - The basis for the argument that the service tax should have been paid at Banda is not clear - It is also not clear whether the department has verified the claim of the Appellants that the service tax on the impugned service has been paid by the Lucknow office of the Appellants - It is not clear how a demand for second time can be sustained if service tax is already paid on such service – Impugned order cannot be sustained and the same is set aside –Matter remanded to verify the payment of service tax by the officers of both Lucknow Commissionerate and Allahabad Commissionerate - Revenue is advised not to convert this matter into a tug of war between the two Commissionerates for accounting the revenue.


M/s Elkay Telelinks Vs CCE, Faridabad (Dated : November 11, 2011)

Service Tax – CENVAT Credit – Eligibility of credit of service tax paid on outward transportation of goods upto the place of buyers during 2005 to 1.04.2008 – Matter stands settled by Karnataka High Court in CCE vs. ABB Ltd - 2011-TIOL-395-HC-KAR-ST – Credit allowed – Impugned order set aside – Rule 2(l) of CENVAT Credit Rules, 2004


CCE, Noida Vs M/s Wood Motherson Elastomer Ltd (Dated : November 9,2011)

Service Tax - CENVAT Credit - Eligibility of CENVAT Credit on input services like Management Consultancy service, CHA service, Outdoor catering service, Rent-a-cab service etc - Issue no longer res integra - Credit allowable in view of numerous decisions of Tribunal/High Courts - No reason to interfere with order of lower appellate authority allowing credit - Rule 2(l) of CENVAT Credit Rules, 2004


M/s Bharat Aluminium Co Ltd Vs CCE (Dated : November 15, 2011)

Service Tax – Levy of service tax on charges paid to foreign consultant for expertise provided in setting up of manufacturing plant – Tax not leviable prior to 18.04.2006 –As regards levy of tax on a certain activity, no clear findings given by adjudicating authority in spite of all relevant documents presented before him – Since law related to taxability of Consulting Engineer's service underwent evolution over a period of time, adjudicating authority should be specific with regard to findings on nature of activity and whether the activity was leviable to tax – Matter remanded to the limited extent


Vashushilpi Projects & Consultants (P) Ltd Vs CCE, Bhopal (Dated : December 7, 2011)

Service Tax – Demand of service tax under “ Consulting Engineer” service –Composite works of technical and non-technical nature rendered by the appellants –Demand confirmed on the total amount received by relying on Daelim case law – In view of the Larger Bench decision in BSBK case, non-technical services would not be taxable under “ Consulting Engineer” service.

Limitation –Extended period upheld by the Commissioner (Appeals) on the ground that the information was submitted in response to the queries raised by Revenue and the has not come automatically from the appellants - Whether the information stands

given by the assessee , in response to the query by the Department or suo motu the fact remains that the information becomes available to the Department - The show cause notice having been issued on 3.10.2006 for the period 1.10.98 to 31.03.05 is beyond the normal period of limitation and is barred by limitation.


M/s Jai Somnath Transport Vs CCE, Thane-I (Dated : October 20, 2011)

Applicants engaged in the business of travels and providing its buses on hire on contractual basis to various customers for an agreed commercial consideration - in the case of Sharma Transports vs. Commissioner of Service Tax, Bangalore (2011-TIOL-344-CESTAT-BANG) Tribunal has granted stay on the ground that the issue of service tax on transport of passengers on point to point basis is kept in abeyance till such time the matter is examined and suitable clarification issued by the Board - there is no definite finding on the issue, hence fit case for grant of unconditional waiver of pre-deposit and stay: Tribunal.


M/s RKBK Ltd Vs CCE, Allahabad (Dated : December 20, 2011)

Service Tax - Review by Commissioner - the date of the passing the order would be the date on which the order or decision is made public or notified in some form or when it can be said to have left the adjudicator's hand - Order passed after two years, not valid: Unlike the Tribunals or the courts, where the orders are pronounced in the open court, the orders passed by a Commissioner of Customs/Central Excise as adjudicating Authority or as reviewing authority under Section 84 of Finance Act, 1994 are not pronounced in the open court. Therefore, in such cases, the date of passing the order would be the date on which the order was dispatched to the assessee, not the date on which the decisions was recorded in the review file as on this date it can be said that the adjudicating authority has ceased to have authority to tear it off and draft a different order. The order passed after the expiry of 2 years from the date of the passing of the Assistant Commissioner's order, is not sustainable. Section 84 of Finance Act, 1994



CCE, Indore (MP) Vs M/s Shri Mukesh Jain (Dated : November 16, 2011)

Service Tax - Penalty under Sections 76 and 78 - Service tax was not paid due to financial difficulties and later discharged the liability along with interest - Revenue appeal against setting aside penalties by the lower authorities - The case is covered by the provisions of Section 73(3) and hence, penalty under Section 76 and 78 was not called for - No infirmity in the order of Commissioner (Appeals).


M/s IDEA Mobile Communications Ltd Vs CCE, Meerut (Dated : November 23, 2011)

Service Tax - CENVAT Credit for the period prior to 10.09.2004 - Credit entitled even for input services not falling under the same category as output services - Matter Remanded: Thus in terms of the provisions of Rule 3 (1) of Service Tax Credit Rules, 2002 as the same existed during the period w.e.f . 14/5/03, in the case where the input and output service did not fall in the same category, the service tax credit was permissible on input services for which the invoice or bill or challan had been issued on or after 14/5/03. Since, the Commissioner in the impugned order has not considered the amendment to Service Tax Credit Rules, 2002 by Notification No. 5/2003-ST dated 14/5/03 and has proceeded on the assumption that during the period prior to 10/9/04 service tax credit was available only in respect of those input services which fall in the same category of taxable service as that of output service, the impugned order is not sustainable. The matter, however, has to be remanded for ascertaining as to whether the input service invoices of period prior to 10/9/04, when the input service and output service was not of same category, had been issued on or after 14/5/03.


M/s Gudwin Logistics Vs CCE, Vadodara (Dated : December 15, 2011)

Service Tax - C&F Agent - clearing & forwarding services can be considered as being rendered, if both the activities are connected and simultaneously done: the expressions "directly or indirectly" and "in any manner" occurring in the definition of "clearing and forwarding agent" cannot be isolated from the activity of clearing and forwarding operations. A person may undertake to provide service of procurement of orders as agent of the principal without agreeing to provide services of clearing and forwarding of the goods. Clearing and forwarding has a very specific connotation in the context of movement of goods from the supplier to their destination and agents undertaking clearing and forwarding operations may never have been concerned with procurement of orders for the goods which are cleared and forwarded. A person entrusted with the work of commission agent for procuring orders for the principal cannot insist on also providing services as clearing and forwarding agent in respect of those goods and it would be open for the principal to engage some other person for the purpose of forwarding such goods. In cases where the buyer is under an obligation to take delivery of the goods from the vendor's premises, there would not be even any need on the part of the vendor to engage any forwarding agent, nor can a person engaged for the purpose of clearing and forwarding operations,insist on procuring orders for the principal in the absence of any stipulation to that effect.



CCE, Ahmedabad Vs M/s K V Arochem Industries (Dated : November 9, 2011)

Service Tax - Goods Transport Service - Benefit of Notification - Declaration on consignment note - 75% abatement of freight charges - Service receiver availed 75% abatement on freight charges without a declaration on the consignment note that the transporter has not availed cenvat credit on inputs or capital goods as provided in the Circular issued by CBEC. Instructions issued in the Circular by the Board cannot be a mandatory condition when the notification does not have such conditions and such Circular cannot used to deny substantive rights which arise from the notification. Benefit of notification is allowed even if the service provider did not make declaration in the consignment note itself, but had made a separate declaration and the same is available with the service receiver. (Para 5)


CCE, Allahabad Vs M/s BSNL (Dated : November 4, 2011)

Service Tax - Service Tax paid by way of book transfer even after such manner of payment being dispensed with after BSNL becoming a company - The fact that they paid service tax through a mode which was permissible earlier but was not permissible from 1.11.2000, cannot be a very serious matter considering that it is a procedural matter and not a substantive matter - Order of the adjudicating authority holding that amount already paid is no payment at all and therefore, such payment has to be made for a second time, is not a reasonable order - No error in the order of the Commissioner (Appeals) remanding the issue for re-examination.


UTI Technology Services Ltd Vs CST, Mumbai (Dated : November 21, 2011)

Appellant undertaking the service of issue of PAN card to applicants and collecting charges for the same – levy and collection of Income Tax is a sovereign function and issue of PAN cards is in relation to such function – not leviable to ST under the category of BAS – services of up-gradation of information technology systems and operations of EPFO and DCA is not “Management Consultant Services” but “Information Technology Service” and chargeable to ST from 16.05.2008 – Demand of Rs.3.69 Crores unsustainable – Appeal allowed with consequential relief : CESTAT [ para 6, 6.3 ]



M/s Darshan Tours Vs CCE, Ahmedabad (Dated : November 11, 2011)

Service Tax - Rent-a-cab Service - Demand - Stay / Dispensation of pre-deposit - The service provider claims that service tax is not payable as the vehicles provided were of capacity of more than 12 passengers; vehicles were provided on kilometer basis; and services were provided on behalf of another travel agent who paid the service tax. However, no evidence produced to substantiate the claim. Service provider directed to

make pre-deposit of service tax. (Para 6)


M/s VST Industries Ltd Vs CC, CCE & ST , Hyderabad (Dated : August 30, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on farmer advisory services for better tobacco cultivation – Services utilized to advise farmers for production of good quality tobacco to be used in manufacture of quality cigarettes –For production of good quality tobacco, tobacco seeds supplied to farmers free of cost and necessary supervisory and advisory services availed for farmers in relation to cultivation of tobacco – Cost of rendering services to farmers included in value of final products manufactured and not recovered from farmers – Nexus exists between services utilized for production of good quality tobacco which is consumed for manufacture of good quality cigarettes – Services used directly or indirectly in the manufacture of cigarettes to qualify as ‘input services' under Rule 2(1) of CENVAT Credit Rules, 2004 – Impugned order set aside – Rule 2(1) of CENVAT Credit Rules, 2004



Vikram Sponge Iron Ltd Vs CCE, Raigad (Dated : September 30, 2011)

Cenvat Credit of service tax - Appellant engaged in the business of manufacture of hot briquetted iron and sponge iron - Service availed by the appellants are maintenance, repairs, technical inspection, survey, manpower recruitment, cleaning etc of their tugs and barges, vessels, service tax paid on ship fees paid to the port authorities, mobile phones, insurance companies, rent a cab services - by earlier order dated 20.1.2010, issue stands settled as Bench has not allowed Cenvat credit in respect of the aforesaid services by holding that these are not services connected to the manufacture of the goods – said order challenged before High Court but no stay granted – Credit not available: CESTAT. [para 13]

Appellants not entitled to Cenvat Credit in respect of the canteen services when they have already recovered the charges for the services from their workers - CCE, Nagpur vs Ultratech Cement Ltd (2010-TIOL-745-HC-MUM-ST) relied upon. [para 14]


M/s Punjab Automobiles Vs CST, Ahmedabad (Dated : November 4, 2011)

Service Tax - Authorised Service Station - Business Auxiliary Service - Incentives from Insurance Companies - Service Tax along with interest paid before issue of SCN -Penalty under Section 76 - If an assessee pays the service tax as soon as advised to

do so, it would show his bonafide belief and therefore provisions of Section 73(3) can be invoked and no penalty is imposable under Section 76 and Section 78 of Finance Act, 1994. Further, the circular issued by the Board on 03.10.07 also provides that where an assessee pays the service tax with interest, no further action need to be taken. In this case, the service provider has paid even the penalty and is not even challenging the same. Under these circumstances, it is a fit case for waiver of penalty imposed under Section 76 of Finance Act, 1994 by invoking the provisions of Section 80 of Finance Act, 1994. (Para 4)


M/s Heera Overseas (P) Ltd Vs CCE, Bangalore (Dated : August 19, 2011)

Service Tax – Tax paid on C & F Agent's service availed for clearance of final product from factory to port for export eligible as CENVAT Credit – As appeal succeeds on merits, time bar issue not examined – Impugned order set aside – Rule 3 of CENVAT Credit Rules, 2004


M/s KPH Dream Cricket (P) Ltd Vs CCE, Chandigarh (Dated : December 7, 2011)

Service Tax – Stay/Dispensation of pre-deposit – Demand of service tax on amount received from BCCI by the appellant who is a franchisee of IPL - As the payments received are towards share of central receipts for Media Rights and other income and neither party is providing service to the other, prima facie case has been made out for waiver of pre-deposit.

Demand of service tax under Section 66A on the amounts paid to foreign players and on brokerage paid to commission agent in Sri Lanka – No prima facie case made out for waiver of pre-deposit.

Demand of CENVAT credit on account of exempted service of selling tickets for each match and organizing the matches – No prima facie case made out for waiver of pre-deposit – Rule 6(1) of the CENVAT Credit Rules, 2004 – Rs 28 lakhs ordered to be deposited.



CCE, Vapi Vs M/s ITW India Ltd (Dated : November 15, 2011)

Service Tax - CENVAT - GTA - Outward Transportation - In the definition of 'input service' the term 'upto the place of removal' is substituted by 'from the place of removal' w.e.f 01.04.2008. In view of the amendment, not withstanding the decision of the Tribunal in the case of M/s. ABB Ltd. Vs. CCE Bangalore ( 2009-TIOL-830-

CESTAT-BANG-LB ) , the issue needs to be re-looked afresh. Matter remanded to the original authority for denovo adjudication. (Para 2 & 3)


M/s Halcyon Labs Pvt Ltd Vs CST, Ahmedabad (Dated : November 28, 2011)

Service Tax - Refund of service tax of terminal handling charges - Review of Refund Order - Demand of interest under Review Order citing wrong Section - Show Cause Notice was issued in exercise of powers under Section 84 of Finance Act, 1994 stating that the sanction of refund was erroneous and why the same should not be demanded and recovered under the provisions of Section 73 of Finance Act, 1994. Further, the interest was demanded under Section 75 of Finance Act, 1994.

HELD - Section 75 provides for recovery of interest when the payment of Service Tax is delayed. Explanation I to Section 73(3) of Finance Act, 1994 provides for recovery of interest of erroneous refund. From the Show Cause Notice and the order, it appears that Section 75 has been wrongly applied. But, the noticee has been asked to show cause as to why the amount refunded wrongly cannot be recovered along with interest. Once the interest is payable according to the Statute, it cannot be said that any prejudice has been caused to the noticee to defend their case. Just by quoting of wrong Section of law, it cannot be said that substantive right of the Revenue or public interest can be ignored and unless the noticee is able to show that prejudice has been caused to him by relying upon the non-applicable Section, such demand cannot be set aside . (Para 5)


M/s Sirpur Paper Mills Ltd Vs CC, CE & ST, Hyderabad (Dated : August 8, 2011)

Service Tax – Stay/waiver of pre-deposit – Refund of pre-deposit amount of Rs. 25 lakhs sanctioned pursuant to final order of Tribunal – Adjustment of interest amount of Rs. 18.17 lakhs against refund amount set aside by Tribunal – Assessee took suo moto credit of Rs. 25 lakhs in PLA resulting in demand towards short payment of duty with interest and imposition of penalty – When department had not challenged Tribunal's order setting aside adjustment of Rs. 18.17 lakhs from refund amount, notwithstanding assessee having taken suo moto credit of refund amount, pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made to applicable to Service Tax by section 83 of Finance Act, 1994


M/s Chansama Taluka Sarvoday Mazoor Kamdar Sahakari Mandli Ltd Vs CCE, Ahmedabad (Dated : July 1, 2011)

Service Tax - Manpower Recruitment and Supply Agency Service - Cleaning Service -Demand - Limitation - Extended period - The issue involved is precisely on interpretation of definition of 'Cleaning Activities/services'. The audit officers themselves were confused whether the activities undertaken by the appellant was

covered under cleaning services or under the 'Manpower Recruitment and Supply Agency services", as seen from the audit report. Since the issue involves interpretation of relevant clauses of Finance Act, the service provider cannot be held responsible for interpreting the same in such that it could be beneficial to them. Therefore, no penalty under Section 78 of the Finance Act, 1994 is imposable as also extended period of limitation for the purpose of confirming demand is also not invokable . Appeal allowed on ground of limitation. (Para 9)

Penalty - Section 76 & 78 - Even though there was a specific amendment in the law on 10.5.2008, which provides that penalty under Section 76 and 78 of the Finance Act, 1994 can not be imposed simultaneously, the same shall also be applicable in those cases where the period of dispute is prior to the said date i.e. 10.05.2008 . (Para 6)


Bank Of India Vs CST, Ahmedabad Corporation (Dated : November 29, 2011)

Service Tax - Valuation - Banking and Financial Service - Inclusion of Postal Charges in value prior to 17.04.2006 - Demand - Limitation - Extended period - The service provider prior to 17.04.2006 (the date when Valuation Rules were notified) did not include the value of postal charges incurred by them for providing various service butincluded the same after the valuation rules were notified. The differential duty has arisen because of the interpretation of the provisions relating to valuation of the services and inclusion of various charges. It is the question of interpretation of lawand when two views are possible, unless documentary evidence or evidence in any other form is available to show that there was suppression of facts or mis-declaration with intention to evade duty, extended period cannot be invoked. Appeal allowed on ground of limitation. (Para 3)


Kishan M Mehta & Co Vs CST, Ahmedabad Bangalore (Dated : November 29, 2011)

Service Tax - Chartered Accountant - Frequent defaults in timely payment of Service Tax and Filing of returns - Penalty - The service provider has paid Service Tax and interest and also filed returns before any reminder was issued by Revenue. Proceedings have been initiated for delayed payment and non-filing returns in time under Section 68 and 70 of the Act. As there is no suppression, this case is not covered by Section 73(4) of Finance Act, 1994, which provides that the provisions of Section 73(3) would not be applicable where there is a suppression of facts or mis-declaration etc. However, the circular issued by the Board clearly provides that there can be no proceedings under Finance Act, 1994 at all when the assessee is eligible for benefit of provisions of Section 73(3) of Finance Act, 1994. Since the issue is covered by precedent Tribunal's decisions and Board's circular and also since the issue is covered by provisions of Section 73(3) of Finance Act, 1994, no Show Cause Notice can be issued and no proceedings should be initiated. (Para 3)


M/s Matrix Telecom Pvt Ltd Vs CCE, Vadodara (Dated : November 16, 2011)

Service Tax - Services received from abroad - Demand - Extended period -Limitation - Penalty - Stay / Dispensation of pre-deposit - The service receiver having received services from abroad was liable to pay service tax. There cannot be suppression of facts or mis-declaration etc with intention to evade duty in this case, since by not paying the Service Tax, the service provider has, in fact, lost the benefit of immediate credit and interest element and no benefit could have been derived by avoiding Service Tax in this case. The lower authorities have not indicated the nature of suppression or mis-declaration or given justification for imposition of penalty under Section 78, even though this was a point raised. Prima facie case made out for grant of stay. (Para 4)


M/s M L Agro Products Ltd Vs CC, CE & ST, Guntur (Dated : September 5, 2011)

Service Tax – Stay/waiver of pre-deposit – BAS – Eligibility of benefit under Notification No. 14/2004-ST in r/o processing of tobacco – Exemption benefit available in r/o processing of tobacco in terms of Board Circular No. 143 dated 26.05.2011

GTA Service – Liability of service tax on payments made to truck owners – Truck owners are not goods transport agents

Pre-deposit waived and stay granted – Section 35F of Central Excise Act, 1944 as made applicable to Service Tax vide section 83 of Finance Act, 1994


M/s Karnataka Commercial And Industrial Corporation Pvt Ltd Vs CCE, Bangalore (Dated : September 13, 2011)

Service Tax – Stay/waiver of pre-deposit – Airport services – Appellant already paid an amount of Rs. 3.61 crores out of a total demand of Rs. 4.00 crores – As sizeable amount of tax dues are deposited, pre-deposit of balance amounts waived and recovery stayed – Section 35F of Central Excise Act, 1944 as made applicable to Service Tax vide section 83 of Finance Act, 1994



Service Tax – Refund – Stay/waiver of pre-deposit – Export of ITSS and claim of refund of input tax credits under Rule 5 of CCR, 2004 – Denial of refund of credit availed prior to the date of registration – It is not in dispute that service tax on output service provided by appellant was effective from 16.05.2008 and Rules permitted registration within 30 days from the date of introduction of levy – Once service tax is leviable from 16.05.2008, prima facie it is incorrect to deny benefit of credit on input

services utilized from that date – Pre-deposit waived and recovery stayed – Rule 5 of CENVAT Credit Rules, 2004 read with Rule 4(1) of Service Tax Rules, 1994 – Section 35F of Central Excise Act, 1994 as made applicable to Service Tax vide section 83 of Finance Act, 1994


M/s Texport Industries Pvt Ltd Vs CST, Mumbai (Dated : August 4, 2011)

Letter of credit is opened by the bank only on the instructions of the customers –merely because there is no written agreement entered into by the exporter with the buyer of the goods, benefit of refund under notification 41/2007-ST cannot be denied - liberal view has to be taken while interpreting the notification so as to reduce the cost of goods exported – settled principle that taxes cannot be exported: CESTAT



M/s Aspinwal & Co Ltd Vs CCE, Mangalore (Dated : June 30, 2011)

Service Tax - Valuation - Inclusion of certain amounts in gross value of taxable services - Submission of evidences by appellant before Appellate Commissioner not considered and no findings recorded - Matter remanded for consideration of issues afresh - Impugned order set aside without expressing any opinion on merits - Section 67 of Finance Act, 1994


CCE, Vapi Vs M/s Guardian Plasticote Ltd (Dated : August 23, 2011)

Service Tax – GTA – Outward Transport – Credit allowed prior to 1.4.2008: High Court of Karnataka in the case of ABB Limited -- 2011-TIOL-395-HC-KAR-ST , while deciding the tax appeal has held that cenvat credit of service tax paid on Goods Transport Agency service prior to 01.4.2008 is admissible and restriction of credit up to the place of removal would be admissible only after 01.4.2008. Further, the High Court of Gujarat has also taken a similar view in the decision rendered in the case of Parth Poly Woven Pvt. Limited dated 06.04.2011 . [ para 2]


Wadpack Pvt Ltd Vs CCE, Bangalore (Dated : September 23, 2011)

Appeals – Relevant provisions for filing of appeal before CESTAT – CENVAT Credit is available to assessee, who may be a manufacturer or a service provider or both, as common kitty from CVD on import of inputs/capital goods, service tax paid on input services and excise duty paid on inputs/capital goods – In case where assessee pays only excise duty, a dispute relating to CENVAT credit should be treated as dispute under excise matters and appeals should be registered as excise appeal – If an assessee is only a service provider utilizing common CENVAT credit for payment of service tax alone, appeal relating to dispute of CENVAT credit may be treated as service tax appeal – In a case where assessee pays excise duty as well as service tax, for administrative convenience, appeal relating to dispute involving CENVAT credit should be treated as appeal under Central Excise – Registry directed to do the needful – Section 35B of Central Excise Act, 1944 and Section 86 of Finance Act, 1994


CCE, Mysore Vs M/s Bhoruka Aluminium Ltd (Dated : September 2, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on outdoor catering service - Provision of food to employees through canteen facility by outdoor caterers –Assessee to show that they had a statutory obligation under Factories Act to provide canteen facility to their employees – If this obligation is fulfilled, assessee can claim outdoor catering service as ‘input service' – Original authority did not have occasion to verify the strength of employees in assessees factory as it proceeded on the premise that outdoor catering service was not covered by definition of ‘input service' – High Court judgment in Stanzen Toyetetsu India (P) Ltd 2011-TIOL-866-HC-KAR-ST followed – Orders of lower authority set aside, matter remanded to original authority with direction to decide substantive issue and limitation issue following principles of natural justice – Rule 2(l) of CENVAT Credit Rules, 2004


Hindustan Coca Cola Beverages Pvt Ltd Vs CC, CE & ST, Hyderabad (Dated : August 12, 2011)

Service Tax – Eligibility of CENVAT Credit in r/o Group Insurance service no longer res integra , dispute resolved in assessees own case 2010-TIOL-160-CESTAT-BANG which was not appealed against by Revenue – Dispute does not survive – Rule 2(l) of CENVAT Credit Rules, 2004

Eligibility of CENVAT Credit in r/o GTA service – Issue no longer res integra , settled in favour of assessee by High Court judgment in ABB Ltd 2011-TIOL-395-HC-KAR-ST –Rule 2(l) of CENVAT Credit Rules, 2004


M/s J K Tyre & Industries Ltd Vs CCE, Mangalore (Dated : September 9, 2011)

Service Tax - Eligibility of CENVAT Credit of service tax paid on GTA service availed for outward transportation of final products – Issue no longer res integra - CENVAT Credit

available on outward transportation from the place of removal for the period prior to 01.04.2008 - Order of lower authority denying credit unsustainable, set aside - Rule 2(l) of CENVAT Credit Rules, 2004


M/s Mysore Polymers & Rubber Products Pvt Ltd Vs CCE, Mangalore (Dated : August 9, 2011)

Service Tax – Eligibility of service tax paid on GTA service availed for outward transportation – CENVAT Credit of service tax paid on GTA service available for outward transportation from place of removal prior to 01.04.2008

C & F Agent's service – Eligibility of CENVAT Credit of service tax paid on C & F Agent's service – Lower appellate authority's subsequent O-I-A in favour of assessee relying on Tribunal decision in Metro Shoes (2008-TIOL-417-CESTAT-MUM)accepted by Revenue – Earlier O-I-A of lower appellate authority which gave contrary decision to assessee set aside


M/s Kar Mobiles Ltd Vs CCE, Bangalore (Dated : September 2, 2011)

Service Tax – Eligibility of CENVAT Credit of service tax paid on imported technical know how – Technical knowhow imported under license agreement for use in manufacture of automobile parts – Service tax paid on royalty paid for technical knowhow by reverse charge mechanism and availment of CENVAT Credit thereof –Denial of CENVAT Credit on the ground that importation of technical knowhow not covered by definition of input service and levy of mandatory penalty invoking section 11AC – When assessee seeks to establish importation of technical knowhow constituted input service viz., IPR service, it is incumbent on them to produce copy of license agreement – Nexus between manufacture of automobile parts and import of technical knowhow to be examined by original authority with reference to terms and conditions of agreement – Matter remanded to original authority – Rule 2(l) of CENVAT Credit Rules, 2004, Rule 15 of CENVAT Credit Rules, 2004 read with Section 11A and 11AC of Central Excise Act, 1944


Jayadasa Engineering & Exports P Ltd Vs CST, Chennai (Dated : August 26, 2011)

Service Tax – Demand based on the difference between the figures shown in the Balance Sheet and the ST 3 returns – The explanation offered by the assessee that the Balance Sheet is prepared on accrual basis is required to be considered by the adjudicating authority – Matter remanded.

Penalty - The adjudicating authority has extended the shelter under Section 80 of the Finance Act, 1994 and dropped the proceedings for penalty under Section 76 - Having held that there was reasonable cause, he could not have imposed penalty under

Section 78 – Penalty under Section 78 is set aside.


CST, Bangalore Vs M/s Goetze TP (India) Ltd (Dated : August 12, 2011)

Service Tax – Levy of service tax for receipt of clearing and forwarding charges for the period from 16.07.1997 to 31.08.1999 – For issuance of show cause notice for violation of s. 71A, provisions of s. 73 were amended from 10.09.2004 only – Whenprovisions of s. 71A are not incorporated in s. 73, no demand can be raised for the violation of the same – In the instant case, SCN issued on 22.04.2004, i.e. prior to amendment of s. 73, not sustainable – Revenue appeal devoid of merits


M/s Vidyut Metallies Pvt Ltd Vs CCE, Mumbai (Dated : September 30, 2011)

Service charges to the Customs House Agents for clearing and forwarding services provided by them for export of goods to the foreign countries is an Input Service

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