Service Tax - 2009 - TMI - 32005 - CESTAT CHENNAI
Service tax for the period 16-11-1997 to 1-6-1998 on GTO services - in view of SC decision in case of L.H. Sugar Factories Ltd. held that amended section 73 takes in only the case of assessee who is liable to file return u/s 70. Admittedly, the liability to file return is cast on the appellants only u/s 71A. The class of persons who are u/s 71A is not brought under the net of section 73 - SCN issued to the appellants invoking section 73 are not maintainable.

Service Tax - 2009 - TMI - 32004 - CESTAT, BANGALORE
Appellant, ICFAI contend that they are awarding Degrees/Diplomas recognized by law for educational purposes without any profit motive, so they are not rendering any service under the category of ‘Commercial Coaching and Training’ – assessee is registered under Societies Registration Act, and degrees conferred by them have recognition of Bar Council of India, Universities and various government bodies – therefore, assessee is excluded from purview of Commercial training/coaching centre

Service Tax - 2009 - TMI - 32003 - CESTAT BANGLORE
Penalty - bona fide belief by assessee with regard to the category under which they were required to pay the service tax - reasonable and bona fide belief in not depositing the tax - service tax was paid before the issue of SCN along with interest - in terms of section 80, no penalty is imposable in such cases – in view of decision of tribunal in the case of Majestic Mobikes (P.) Ltd., imposition of penalties in the Review Order and OIO is set aside – appeal by assessee is allowed

Service Tax - 2009 - TMI - 32002 - CESTAT, BANGALORE
Penalty - bona fide belief held by the assessee with regard to the category under which they were required to pay the service tax - reasonable and bona fide belief in not depositing the tax - service tax was paid before the issue of show-cause notice along with interest - in terms of section 80 of the Finance Act, 1994 no penalty is imposable on the assessee - imposition of penalties in the Review Order and order-in-Original is set aside – appeal by assessee is allowed

Service Tax - 2009 - TMI - 31987 - CESTAT, CHENNAI
Appellant (L & T) received technical assistance in consideration of royalty & technical know-how fees - Commissioner (A) was right in holding that L & T was not liable to pay tax towards Engineering Consultancy for technical know-how and technical assistance received from its foreign collaborators - Transfer of technical know-how for a consideration is sale of intellectual property. These cannot be held as provision of service by the collaborators of the L & T – revenue’s appeal dismissed

Service Tax - 2009 - TMI - 31986 - CESTAT, CHENNAI
Whether service tax was leviable on transfer of technology, trademark etc., by the respondents to M/s. BMF Beltings Ltd. for manufacture and sale, by the latter, of certain goods, under the head ‘Consulting engineer’s service’ during the period from 1 -4-1997 to 31-3-2002 - that transfer of technical know-how would not fall under the category of ‘consulting engineer’s service’ for the purpose of levy of service tax - issue is no longer res integra & the same stands settled against the revenue

Service Tax - 2009 - TMI - 31985 - CESTAT, NEW DELHI
Comm.(A) dismissed appeal for non-compliance to section 35F - appellants plea is that there are three cable operators, operating from the same premises and demand is made from the applicant by treating all the three as one service provider - partner of the appellant disclosed the payment received from cable operators on account of M.S.O. service and revenue is demanding service tax on the amount disclosed by appellant – not a fit case for total waiver - Appeal is disposed of by way of remand

Service Tax - 2009 - TMI - 31946 - CESTAT, CHENNAI
Clearing and Forwarding Agents – from the agreement made by appellants with their principles it is clear that assessee was only a “commission agent” and not “C/F Agent” – services of commission agent were brought under tax net only w.e.f. 1/7/2003, which shows that Parliament has treated Commission agent separately from C/F Agent - in the light of the Larger Bench decision in Larsen & Toubro Ltd. case, respondents can only be held to be Commission Agents – therefore demand was rightly set aside

Service Tax - 2009 - TMI - 31945 - CESTAT, NEW DELHI
Revenue filed appeal against the revised order of the Commissioner in which he dropped the review proceedings – revenue’s submission is that there is a delay in payment of tax and, therefore, penalty is imposable - since demand of interest was paid by the respondent before issue of the SCN and both the authorities below have given detailed finding for non-imposition of penalty, there is no any reason to interfere the order of the Commissioner. The appeal filed by the revenue is rejected.

Service Tax - 2009 - TMI - 31944 - CESTAT, NEW DELHI
Purchase & sales of SIM cards/rechargeable coupons of M/s. Aircel Ltd. – assessee paid tax under head ‘Business Auxiliary Service’ under protest and took credit of tax paid by M/s. Aircel Ltd. - Commissioner (Appeals) while confirming demand has not chosen to decide the issue of liability to service tax, but has dealt with only one issue i.e. whether the service tax credit availed and utilised by them is legal - since the issue is at the root of the dispute, appeal is allowed by way of remand

Service Tax - 2009 - TMI - 31943 - CESTAT, BANGALORE
Inputs used in the photographic services - Revisionary Authority held that assessee is not entitled for the benefit of Exemption Notification No. 12/2003-ST, dated 20-6-2003 in respect of the inputs used – issue has already been decided in assessee’s favour in various decisions – said ratio would apply to this case also - hence, impugned order is set aside and appeal allowed with consequential relief

Service Tax - 2009 - TMI - 31942 - CESTAT, NEW DELHI
C/F Agent – assessee’s contention is that as per the agreement, the appellants were only procuring order on commission basis and as per the decision of the Larger Bench of the Tribunal in the case of Larsen & Toubro Ltd v, CCE and affirmed by Hon’ble Punjab & Haryana High Court in the case of CCE v. United Plastomers held that mere procuring of orders on commission basis not amounted to C&F Agent service – assessee’s plea is acceptable - therefore, demand is set aside

Service Tax - 2009 - TMI - 31941 - CESTAT CHENNAI
Appeal was filed against order of adjudication with the Commissioner (Appeals) with a delay of 607 days, which was beyond the period condonable by the appellate authority - held that a Commissioner (Appeals) had no power to condone any delay of appeal beyond the condonable period of delay under Section 35 - appeal of the assessee was rightly dismissed by Commissioner, as time-barred - order of Commissioner does not call for interference

Service Tax - 2009 - TMI - 31940 - CESTAT CHENNAI
In view of definition of ‘input service’ given u/r 2 of CCR, 2004, held that CENVAT credit of the service tax paid on telephone service received by a manufacturer of excisable goods or provider of output service was available to them as credit - telephone service received on the mobile phones of the respondents, which were operated by their staff in connection with the business of the company, was ‘input service’ and accordingly the service tax paid thereon was available as credit

Service Tax - 2008 - TMI - 31925 - CESTAT CHENNAI
Demand of service tax under the head “Business Auxiliary Service” on the amount collected by the appellants from their own refinery towards the cost of additives (extra-mile diesel) used - held that no service tax was payable in respect of any service rendered by one unit of the company to another - the so-called service is one rendered by the appellants to themselves, such service cannot be subjected to levy of service tax under any category

Service Tax - 2008 - TMI - 31924 - CESTAT BANGLORE
Issue relates to grant of abatement of reimbursed expenses from the gross value of remuneration received against the services of C/F Agent – appellant’s submission that reimbursement expenses beyond maximum ceiling of 1% of the net sales are borne by them, is correct – hence their claim is restricted to maximum ceiling of 1% only and that cannot be denied - Since the appellant’s agreement itself shows reimbursement to a maximum limit of 1%, therefore, it has to be restricted to that extent only

Service Tax - 2008 - TMI - 31923 - CESTAT BANGLORE
Once the penalty under Section 78 has been imposed, there is no justification for imposition of penalty under Section 76 - Tribunal in the case of Opus Media Entertainment Vs CCE, Jaipur has already held that imposition of penalties under Section 78 and 76 amounts to double jeopardy - said case-law is clearly applicable to the facts of the present case, hence, assessee’s appeal is allowed

Service Tax - 2008 - TMI - 31922 - CESTAT NEW DELHI
Air Travel Agent - there is no dispute that the Respondent had refunded the amounts to their customers on cancellation of their tickets Thus, it is established that the Respondent had not passed the incidence of tax to any other person. Commissioner (Appeals) rightly set aside the demand of duty - doctrine of principle of unjust enrichment is not attracted

Service Tax - 2008 - TMI - 31921 - CESTAT KOLKATA
Transportation of gas through pipeline is an activity which has been newly brought under the Service Tax net after 15.6.05. - case of the Department to bring the appellants under the Service Tax net for the pervious period is not convincing - bringing the appellant’s transportation activity under the category of Business Auxiliary service for the period prior to 15.6.05 is not warranted under the law in force at the material time - Hence demand & penalty are not sustainable

Service Tax - 2008 - TMI - 31918 - CESTAT, NEW DELHI
Assessee paid part of deposit as ordered by Commissioner and sought further time for making pre-deposit – but Commissioner dismissed the appeal without going in to merits of the case – plea of financial hardship as the Proprietor has met with an accident - Commissioner (Appeals) shall decide the appeal on merits and without insisting for further pre-deposit - appellant is directed to deposit a certain sum of & report compliance before the Commissioner (A) - appeal is allowed by way of remand