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2015 (5) TMI 918 - BOMBAY HIGH COURT

Commissioner of Central Excise, Goa Versus Hindustan Coca Cola Beverages (P.) Ltd.

Dated: 10/03/2015

EXCISE APPEAL NO. 31 OF 2008

Denial of CENVAT Credit - Whether, the service tax paid on mobile phones used by employees/staff of a manufacturing company would be eligible for cenvat credit under the Cenvat Credit Rules, 2004 - Held that:- Rules of 2002 and any other circular as in force before coming into force of Rules 2004 and the commencement of the said Rules would be construed as reference to the Cenvat Credit Rules of 2004 and any corresponding provisions thereof. The said Rules also provide that such Rules or any circulars should be relevant and should be consistent with Rules of 2004 - the word "Input Services" were not defined in the Rules of 2002. In such circumstances it cannot be said that there is any corresponding Rule in Rules of 2004 which can be said to have been saved. - Commissioner (Appeals) has rightly come to the conclusion that Rules 2002 would not be applicable to the facts of the present case. Such finding has been confirmed by the Appellate Tribunal by holding that circular of 2003 would not be applicable to defeat the credit availed of by the respondent. - expenses of mobile phones are in connection with manufacturing process of the respondent. In such circumstances, we find that both the substantial questions of law framed by this Court are to be answered against the appellant. - Decided against Revenue.


2015 (5) TMI 917 - CESTAT MUMBAI

Ingle & Sons Versus Commissioner of Central Excise, Nagpur

Dated: 06/04/2015

Application No. ST/COD/98091/14, Appeal No. ST/89910/14

Condonation of delay - Delay of 111 days - Advocate could not prepare the appeal and also did not inform the appellant about not preparing the appeal - Held that:- There is delay of 111 days in filling the appeal, the same needs to be condoned more specifically due to the reason that an assessee should not be made to suffer due to the lackadaisical attitude of the Counsel engaged and represented them before the first appellate authority. - Delay condoned conditionally.


2015 (5) TMI 916 - CESTAT NEW DELHI

Shri Neeraj Sharma, Cencept Engineers Versus Commissioner of Central Excise, Meerut-I

Dated: 26/03/2015

No. ST/219/2009-CU(DB)

Consulting Engineer Service - appellants had provided vaastu advice, blue print and project report typing and binding services - Held that:- It is evident that service to be covered under the consulting engineer service. Shri Neeraj Sharma will have to-be shown to be a professionally qualified engineer and should have rendered advice, consultancy or technical assistance in one or more disciplines of engineering. It is nowhere brought out in the order in appeal or in the order in original that Shri Neeraj Sharma is a professionally qualified engineer. Further it is also not brought out as to in which discipline(s) of engineering the service has been rendered. Making blue print, typing, project report done by the appellants will have to be shown to be relating to one or more disciplines of engineering. For example a lay man making a blue print or typing the project report would not qualify to be called a consulting engineer. Thus, we find that Revenue has not been able to discharge its obligation/onus to show that the appellant was professionally qualified engineer and also rendered any advice in relation to any particular branch of engineering - Decided in favour of assessee.


2015 (5) TMI 886 - JHARKHAND HIGH COURT

M/s. TA Enterprises, Chandrapura Versus The Union of India And 5 Others

Dated: 07/04/2015

W P (T) No 6023 of 2014

Condonation of delay - filing of appeal before the Commissioner (Appeals) - Applicability of Limitation Act - Revenue argued that, Normally, the assesses are taking a chance by filing a matter directly in the High Court which is always at the peril and risk of the petitioner, specially when delay is not condonable. This petitioner is not exception to "chance taking petitioner." - Held that:- Commissioner (Appeals) have no power, jurisdiction and authority to condone the delay beyond thirty days - Decision in the case of M/s. Flemingo (Duty Free Shop) Pvt. Ltd., Sandvik Asia Private Limited Versus The Commissioner of Customs (Appeal) And Others [2015 (1) TMI 22 - BOMBAY HIGH COURT] followed - decided against assessee.


2015 (5) TMI 885 - CESTAT MUMBAI

Sun-Area Real Estate Pvt Ltd Versus Commissioner of Service Tax, Mumbai-I

Dated: 16/04/2015

Appeal No. ST/88549/2014

Denial of refund claim - Payment received in export of service in Indian rupees from Deutsche Bank - Held that:- FIRCs were issued and there is a specific certification that the payment has not been received in non-convertible rupees, which establishes that the payment received and mentioned in the FIRCs are other than non-convertible foreign exchange, in other words, the payment is in convertible foreign exchange. - out of the total payment to be made by the insurance broker in India to the foreign insurer was reduced to the extent of his brokerage and remaining amount was remitted to foreign insurer in the foreign exchange - when a foreign bank is maintaining Indian rupees in their account obviously, such Indian rupees was obtained in lieu of foreign exchange.

Issue of admissibility as input service credit in respect of security services was not raised in the show cause notice. Therefore, denial of refund of ₹ 7,747/- and ₹ 1,051/-respectively is not correct. - impugned order deserves to be modified inasmuch as the impugned order in respect of ₹ 1,64,081/- is upheld and the order rejecting refund of an amount of ₹ 10,98,077/- is set aside - Decided in favour of assessee.


2015 (5) TMI 884 - CESTAT MUMBAI

M/s Oracle Financial Services Software Ltd Versus Commissioner of Service Tax, Mumbai

Dated: 31/12/2014

Appeal No. ST/206/08

Extended period of limitation - Maintenance or repair of computer software service - Period of levy of tax - held that:- Service Tax is not payable by the appellant for the period 9.7.2004 to 6.11.2005 under the category of 'Maintenance or Repair' service. - whereas the Board clarified vide its Circular on 17.10.2005 that software is 'goods', the show-cause notice in the present case was issued only on 2.1.2007 i.e. beyond the normal period of one year. In view of frequent changes in Circulars and legal provisions, appellant cannot be faulted for not paying Service Tax. The Commissioner also, in his order, did not impose the mandatory penalty under Section 78 which involves invocation of the extended period. Therefore, we find that the demand is also hit by limitation. - Decision in the case of Kasturi & Sons Ltd. Vs. UOI [2011 (2) TMI 76 - HIGH COURT OF MADRAS] followed. - Decided in favour of assessee.


2015 (5) TMI 842 - CESTAT AHMEDABAD

The Gujarat Tea Depot Co. Versus C.S.T. -Service Tax, Ahmedabad

Dated: 22/05/2015

Appeal No. ST/11962/2014

CENVAT Credit - input services - whether Packaging Services, Security Services, Telephone Services & Chartered Account Services would be considered as input services for of Lending of trademark to others - Payment of service tax on royalty received as output services - Held that:- In the certificate/opinion obtained from Y.J. Trivedi & Co. Patents & Trade Marks Attorney & Advocate, Ahmedabad also no provisions of the Trade Marks Act or any Rules made there under are mentioned under which it is obligatory on the part of the appellant to compulsorily use the Trade Mark himself. Lending its trade mark, getting royalty & paying service tax on the part of appellant should be sufficient to establish that his Trade Mark has been used. Under the present factual matrix it can not be held that packaging Services are availed by the appellant directly for protecting their Trade Mark/Brand Name. Therefore, the packaging Services availed by the appellant has to be considered to have been utilized for making of tea bags and can not be considered to be availed directly or indirectly in maintaining/protection of appellant s Trade Mark.

As per Rule 6 (5) of the Cenvat Credit Rules, 2005 full credit of Security Services credit is permissible if, the credit of such services is not exclusively used in relation to exempted goods or providing exempted services. According credit of service tax on security services is correctly availed by the appellant

So far as credit of Chartered Accounts Services & Telephone Services is concerned, As no separate figures are available for such services it will be appropriate that appellant only takes proportionate value wise credit on such services used commonly in providing trading activity and providing Intellectual Property Right Services and pay the remaining amounts with interest.

So far as invokation of extended period is concerned it is observed that improper credit taken which was detected by the department officers only. At no stage of appellant approached the department for any guidance that there was any confusion in admissibility of credit on the impugned services. Therefore, extended period will be applicable - However, penalties are waived off. - Decided partly in favour of assessee.


2015 (5) TMI 841 - CESTAT AHMEDABAD

M/s. Dic Fine Chemicals Pvt. Limited Versus Commissioner of Central Excise & S.T., Vadodara

Dated: 01/05/2015

Appeal No. ST/10552/2013

Denial of refund claim - Bar of limitation - Determination of relevant date for filing refund claim - Held that:- Regarding the relevant date for deciding the refund claim on limitation, the issue is no more res-integra as the Hon'ble Delhi High Court in the case of Arya Exports and Industries (2005 (4) TMI 90 - HIGH COURT OF DELHI) has decided the issue and held that date of filing claim should be considered as relevant date even if the same is not filed in prescribed form and the documents are not submitted alongwith the refund application. - The initial refund claim having been filed well within time, the same is required to be considered within limitation. Accordingly I set aside the impugned order and remand the matter to Commissioner (Appeals) for decision on merits. - Decided in favour of assessee.


2015 (5) TMI 840 - CESTAT MUMBAI

Commissioner of Central Excise & Customs, Nagpur Versus Noble Grains India Pvt Ltd

Dated: 11/02/2015

Appeal Nos. ST/342 to 345/2009

Refund claim - jurisdiction of sanctioning such refund - Export made from Akola factory - Revenue contends that jurisdiction of sanctioning such refund would arose only at Indore Commissionerate as the documents i.e., export documents were prepared from the registered office of the assessee - Held that:- there is no dispute that the consignments which were exported were cleared from the Akola factory; the jurisdiction for claiming the refund of service tax paid on such services which are in connection with the export of goods cannot be shifted to their Indore Commissionerate as the registered office of the respondent-assessee being at Indore cannot be a reason for shifting the jurisdiction to Indore. It is undisputed that the manufacturing activity has taken place at Akola and falls within the jurisdiction of the Commissionerate at Nagpur. - there is no dispute as to that the respondent is a manufacturer-exporter, a category which is covered under Notification No. 41/2007-ST. - Decided against Revenue.


2015 (5) TMI 807 - CESTAT BANGALORE

Visakhapatnam Stevedores Association Versus Commissioner of Central Excise, Customs And Service Tax, Visakhapatnam-I

Dated: 25/03/2015

ST/Stay/923/2012, ST/1316/2012-DB

Manpower Recruitment and Supply service - principle of mutuality - Invocation of extended period of limitation - Held that:- issue is prima facie covered by the Gujarat High Court [2013 (7) TMI 510 - GUJARAT HIGH COURT] and Jharkhand High Court [2012 (6) TMI 636 - Jharkhand High Court] decisions as also by the Tribunal decision in the case of Federation of Indian Chambers of Commerce and Industry [2014 (5) TMI 183 - CESTAT NEW DELHI]. Apart from that we also prima facie find favour in the appellant's contention that demand is barred by limitation. On this ground we are of the view that appellant has a good prima facie case in its favour - Stay granted.


2015 (5) TMI 806 - CESTAT NEW DELHI

M/s Shree Venkatesh Medical Agencies Versus Commissioner of Central Excise And Service Tax, Raipur

Dated: 02/03/2015

Application No. ST/STAY/58752/2013-CU(DB), Appeal No. ST/58130/2013-CU(DB)

Demand of service tax - Invocation of extended period of limitation - Held that:- Revenue has not filed any appeal against the impugned Order-in-Appeal for dropping the penalty under Section 78 ibid. The period involved in this case is October, 2002 to December, 2006 while the Show Cause Notice was issued on 23.02.2008. It is thus obvious that the entire demand is beyond normal period of one year (except for a period of mere three months i.e. October, 2006 to December, 2006 and that too only if the Show Cause Notice dated 23.02.2008 was actually received by the appellants on or before 25.02.2008) and therefore is hit by time bar in view of the analysis above. When the entire demand covering the period October, 2002 to December, 2006 is a meagre ₹ 19,576/- the demand for a mere 3 months will be pittance or less making it ridiculous to remand the case for computation thereof in view of the paper and effort involved as a consequence of so doing particularly when it does not involve any question of law or interpretation thereof. - Decided in favour of assessee.


2015 (5) TMI 805 - CESTAT MUMBAI

Reach Network India Pvt Ltd Versus Commissioner of Service Tax, Mumbai-II

Dated: 02/02/2015

Application No. ST/S/96203/14, Appeal No. ST/88280/14

Waiver of pre deposit - Online Information and Database Access and/or Retrieval Services - Held that:- Inter-connection charges paid by one ISP to another ISP are not liable to service tax - on 01.05.2006, appellant on their own, to avoid any further litigation, took registration certificate under the category of "Business Support Services" and discharged service tax liability on such amount received from ISP and in 2008 took registration under the category of "Internet Telecommunication Services". - appellant has made out a case for waiver of pre-deposit of the amount involved as the adjudicating authority could not have argued against the Board's Circular and the clarification as is reproduced here-in-above. In view of the foregoing, we allow the application for waiver of pre-deposit of the amount involved and stay recovery thereof till the disposal of the appeal. - Stay granted.


2015 (5) TMI 776 - CESTAT NEW DELHI

Bharti Airtel Ltd Versus Commissioner of Central Excise, Chandigarh

Dated: 22/01/2015

Appeal No. ST/540/2009-Cus (DB)

Denial of refund claim - Unjust enrichment - documents had not been produced to show that the amount charged to the foreign network operator was as per agreement and also to show that no service tax was charged - Held that:- principle of unjust enrichment would not be applicable to export transactions as specifically provided in section 11B of Central Excise Act, 1944. The facts of the case of Vodafone Cellular Ltd. (2014 (3) TMI 117 - CESTAT MUMBAI) are similar to the facts of the present case. However, we further note that the adjudicating authority and the Commissioner (Appeals) have come to the conclusion that the appellant could not satisfy the lower authority that the amount of service tax paid by them is correlated with the invoices raised on foreign mobile operator for inbound international roaming charges. The appellant, on the other hand, claim that the information has been provided and even chartered accountants certificate has been submitted to the effect that the service tax of ₹ 15,64,222/- has been paid in connection with inbound international roaming service and that the service tax was not shown in the invoices nor collected from the customers. Matter remanded back - Decided in favour of assessee.


2015 (5) TMI 775 - CESTAT MUMBAI

First Flight Couriers Ltd Versus Commissioner of Service Tax, Mumbai

Dated: 07/01/2015

Appln. No. ST/MA(Ors)98677/14, Appeal No. ST/15/08

Penalty u/s 76 & 78 - short payment of service tax - Held that:- that there is no such allegation on the appellant and the escapement of tax as alleged seems to be short paid due to some mis-calculation. We also find strong force in the contention raised by the representative of appellant that DGCEI which investigated the matter, did not come out with any short payment of service tax prior to April 2004. It was his submission that once in a year, the appellant themselves reconcile the statements and discharge the differential service tax liability short paid therein along with interest. - this is a fit case for invoking the provisions of Section 80 of the Finance Act, 1994 for setting aside the penalties imposed on the appellant herein. - Decided in favour of assessee.


2015 (5) TMI 774 - CESTAT MUMBAI

Commissioner of Central Excise, Pune Versus Emerson Innovation Center

Dated: 18/03/2015

Appeal No. ST/85011/14

Denial of refund claim - Notification No. 5/2006-CE (NT) dated 14/03/2006 - nexus between the exported output service and the input services utilised - Held that:- Nowhere in Rule 5 of the CCR, 2004, is there any condition of establishing a nexus between the input service credit taken and the output service exported. Notification No. 5/2006-ST also does not stipulate any such condition. So long as the credit is admissible and has been taken and lying accumulated and the exporter is unable to utilise the credit, he is eligible for refund of the accumulated credit. This is the whole purpose and aim of Rule 5 of the CCR Rule, 2004. The board's clarification also makes this point very clear. The decisions of this Tribunal in the case of Capiq Enigneering Pvt. Ltd. [2008 (10) TMI 84 - CESTAT, AHMEDABAD] and Amdocs Business Services Pvt. Ltd. [2013 (9) TMI 31 - CESTAT MUMBAI] also support this view - impugned order passed by the lower appellate authority cannot be faulted at all - Decided against Revenue.


2015 (5) TMI 773 - CESTAT NEW DELHI

Uttam Toyota Versus Commissioner of Central Excise And Service Tax, Ghaziabad

Dated: 10/03/2015

No. ST/Stay/61196-61197/2013, ST/60271-60272/2013- CU( DB)

Waiver of pre deposit - Non inclusion of value of spares - Free service during warranty period - Held that:- In the case of free service provided by the applicant on behalf of M/s TKML to the customers of M/s TKML is reimbursing whole of the expenses incurred by the applicant i.e. service charges plus cost of spares during the period of warranty. The applicant is paying service tax on the service part of the transaction and not paying service tax on the value of spares replaced during the period of warranty had been reimbursed by M/s TKML . In this situation also that value of spare replaced during the period of warranty is not includible in the taxable service. Therefore, the applicant has made out a complete waiver of pre-deposit - following the precedent decision in applicant's own case [2015 (5) TMI 670 - CESTAT NEW DELHI] the applicant has made out a case for complete waiver of pre-deposit - Stay granted.


2015 (5) TMI 742 - BOMBAY HIGH COURT

The Commissioner of Service Tax Mumbai Versus M/s Maersk India Pvt Ltd.

Dated: 24/02/2015

CENTRAL EXCISE APPEAL No.12 of 2014.

Export of serveries - Non-availabity of exemption notification during the period 1.3.2003 to 19.11.2003 - Contravention of the provisions of Section 68 - Penalty u/s 76 & 78 - exemption granted under Notification No. 21/2003-ST - Held that:- It is indisputable position that the respondent assessee was being allowed and had the benefit of exemption of service tax under Notification No.6/99 till it was rescinded on 1.3.2003. Also a circular had been issued clarifying that the service tax is not leviable on export of services. Subsequently exemption has been reinstated to the services wherein consideration was being received in convertible foreign exchange. - clients who were serviced were residents abroad, and as such the services rendered to them being export services can hardly be amenable to any debate. The service being exempted from payment of service tax is also clear from two exemption notifications No.6/99 and 21/03, consideration for the same being received by the respondent assessee in convertible foreign exchange in India - Decision in the case of Commissioner of Service Tax, Mumbai-III Versus M/s. SGS India Pvt. Ltd. [2014 (5) TMI 105 - BOMBAY HIGH COURT] followed - decision for the reasons given by the Tribunal can hardly be faulted with. - Decided against Revenue.


2015 (5) TMI 741 - CESTAT NEW DELHI

M/s Canvasm Technologies Ltd. Versus Commissioner of Central Excise And Service Tax, Noida

Dated: 26/03/2015

Application No.ST/STAY/53971/2014- CU[ DB], Application No.ST/MISC/50341/2015-CU[DB], In Appeal No.ST/53551/2014-CU[DB]

Waiver of pre deposit - Business Auxiliary Service - Reverse charge mechanism - Revenue neutrality - Held that:- CAI were providing the services to the customers of the appellants as per the agreement between CAI and the appellants and the payment for the same was made by the appellants to CAI. Thus, CAI was engaged in providing services in relation to provision of service on behalf of client which in this case is the appellants. Thus, prima facie the services received by the appellants are classifiable under BAS - what is of precedential value is not the judgement but the ratio of judgement. As regards the contention of the appellants that they Were receiving "Technical Testing and Analysis" service, it is seen that the said service is defined under Section 65 (105) (zzh) as "to any person by a technical testing and analysis agency, in relation to technical testing and analysis". It can be hardly anybody's case that the appellants were receiving services from CAI in relation to "Technical Testing and Analysis" because nothing belonging to appellants was subjected to technical testing and analysis. - unable to locate any statutory or constitutional provisions which support the notion that in case of revenue neutrality the liability to tax abates. Further whether there has been wilful mis-statement or suppression of facts on the part of appellants is to be determined with reference to the facts and circumstances of the case which requires detailed analysis which can be taken up only at the time of final hearing. - Partial stay granted.


2015 (5) TMI 740 - CESTAT NEW DELHI

M/s Shriram General Insurance Co Ltd Versus Commissioner of Central Excise And Service Tax, Jaipur-I

Dated: 09/03/2015

Service Tax Stay Application No. 54640 of 2014, Service Tax Appeal No. 54096 of 2014

Waiver of pre deposit - Denial of CENVAT Credit - Reinsurance business - Held that:- Prima facie, when the applicant undertake the insurance, i.e. the insurance date of commencement of risk by the insurance company for covering the insurance of Policy holder and that service has to be provided for a particular period of time as per the agreement. So, the output service is provided by the applicant till the termination of agreement, therefore, the service received by the applicant is a services received providing output service and qualify as input service as per rule 2(l) of the CCR, 2004. Therefore, the applicant is entitled to avail Cenvat credit on the reinsurance service received by them as per Rule 2(l) of the CCR, 2004. - Stay granted.


2015 (5) TMI 739 - CESTAT MUMBAI

Atlas Copco (I) Ltd. Versus Commissioner Of Central Excise, Pune

Dated: 12/02/2015

Appeal No. ST/88247/14

Export of service or not - Business Auxiliary Services or export transaction - Held that:- service recipient is situated abroad and the payments for the services rendered was received in convertible foreign exchange and the service has been delivered to a person situated abroad and such services were provided from India and used outside India. Thus all the conditions of export have been satisfied and therefore, we have no hesitation in concluding that the activity involved in the present case is one of exports which is not taxable. Even as per the place of Provision of Service Rules 2012, it is the place of service recipient which determines where the service has been rendered. In the present case, the service recipient is located outside India and therefore, the service has been rendered outside India. In other words, it is a export transaction. - decisions of this Tribunal in the case of Gap International Sourcing (India) Pvt. Ltd. [2014 (3) TMI 696 - CESTAT NEW DELHI] Paul Merchants Ltd. [2012 (12) TMI 424 - CESTAT, DELHI (LB)], Microsoft Corporation India Pvt. Ltd. [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)], etc. would squarely apply - Decided in favour of assessee.


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