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Service Tax - Case Laws

Showing 161 to 180 of 2349 Records

• 2014 (12) TMI 506
  

  Imposition of penalty - Scope of Cargo handling services - cleaning of the mining area - transportation of the gypsum from one place to railway station - activity of loading of gypsum into railway wagons/rakes through mechanical loaders - Held that:- First two services fall under different categories which were introduced subsequently and for which the appellant had started paying service tax from those dates, we find no reasons to hold that the said two services are part & parcel of the ‘cargo handling services’, which according to the Revenue falls under clause (c). - loading of the goods into racks or wagons through mechanical loaders does not fall under the category of ‘Cargo Handling Services’. For the said purpose, a reference may be made to the Rajasthan High Court in the case of S.B. Construction Co. Vs. Union of India - [2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR)]. However, as the appellant is not contesting the confirmation of demand under the said category on the ground that they have already deposited the same along with interest, we are not going into the details relatable to the said category. In any case, the issue being contentious and arguable and the demand having been raised by invoking the period of limitation, we deem it fit to set aside the penalties imposed upon the appellant. - Decided in favour of assessee.

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• 2014 (12) TMI 505
  

  Waiver of pre-deposit - Valuation - Transport of gas through Pipelines or conduit - Minimum Demand Charges (MDC) collected by the Applicant from their customers. - Held that:- The Revenue's contention is that this amount has been mentioned in the agreement as transmission charges, therefore, the value should be included in the gross taxable value realized towards transportation/transmission of gas. We find force in the contention of the ld.A.R. for the Revenue and on this count, the Applicant could not able to make out a prima-facie case for total waiver of predeosit.

  However, in relation to the applicability of service tax on marketing margin under the category of Business Auxiliary Service, we find substance in the contention of the ld.C.S. for the Applicant. We find that the applicants were purchasing and selling the gas in retail, however, while fixing the retail price, the Ministry has considered the marketing margin. Prima-facie, the transaction is that of sale and not service. Thus, on this count, the Applicant could able to make out a prima-facie case for total waiver of predeposit of dues adjudged. - Partial stay granted.

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• 2014 (12) TMI 504
  

  Whether the commission/discount earned by the acquiring bank from the Merchant Establishment is liable to service tax under the category of banking and financial services for the period prior to 01.05.2006 - Held that:- as the correctness of the earlier decision in ABN Amro [2011 (7) TMI 312 - CESTAT, NEW DELHI] was doubted in the case of Commissioner of Service Tax vs. HDFC Bank Ltd. (2013 (9) TMI 630 - CESTAT MUMBAI) and the matter was referred to Larger Bench on the following points of law for consideration:-

  Whether the introduction of the new, comprehensive definition of "credit card, debit card, charge card or other payment card service" vide section 65 (33a) read with section 65 (105)(zzzw) by the Finance Act, 2006, is substantive and seeks to levy all the transactions covered by use of Credit/Debit/Charge Card or is in continuation of the levy under Section 65 (10) or (12), as the case may be, as held in the case of ABN Amro decision in so far as credit card services are concerned?

  Whether the sub-clause (iii) in the definition of taxable service viz. "credit card, debit card, charge card or other payment card service" in section 65 (33a) can be said to be applicable retrospectively, i.e. from 16 July 2001 when section 65 (72) (zm) became effective?

  Can ‘merchants / merchant establishments' be considered as ‘customer' as envisaged in Section 65 (72)(zm) of the Finance Act, 1994 as it stood prior to 1-5-2006?

  Whether Merchant Establishment Discount can be said to be received "in relation to" credit card services when in fact in a particular transaction, the Acquiring bank receiving ME Discount may not have issued that particular credit card at all? (72)(zm) of the Finance Act, 1994 as it stood prior to 1-5-2006?

  Matter to be placed before the Hon'ble President, CESTAT for constitution of the Larger Bench.

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• 2014 (12) TMI 503
  

  Waiver of pre-deposit - Rule 5(1) of Service Tax Valuation Rules - Re-imbursement of expenses in the value of taxable services for the purposes of levy of service tax - Whether the appellant is required to discharge Service Tax liability on an amount collected by them from the customers as to they being actual reimbursable expenses - Held that:- valuation of the service provided by the appellant needs to be ascertained based upon the provisions of Section 66 & 67 of Finance Act, 1994 and if such taxable amount is not ascertainable, then the recourse has to be taken as per the provisions of Rule 5(1) of Service Tax Valuation Rules. In the case in hand, this is the precise issue. Hon'ble High Court of Delhi in the case of M/s Intercontinental Consultants & Technocrafts Pvt.Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT] has struck down the said provision of Rule 5(1) of the Service Tax Valuation Rules which would indicate that there is no provision available with the Department as of now to re-work out or re-determine the value of the taxable service. Appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved. Accordingly, application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal. - Stay grantd.

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• 2014 (12) TMI 502
  

  Classification of services - cargo handling service for import of goods - transportation by barges from the mother vessel to the jetty onshore - Held that:- when the goods are being transported by the barges from the mother vessel to the jetty onshore, that activity is part of the import transaction of bringing the goods into India from a place outside India. The question of rendering any service in respect of such goods by way of cargo handling or otherwise can take place only after the customs transaction is completed. Therefore, the question of levying to service tax the transportation by barges from the mother vessel to the jetty onshore, would not arise at all since the said activity is part of the import transaction leviable to import duty and we hold accordingly.

  This is also evident from the fact that section 14 of the Customs Act, 1962 relating to determination of value of import goods for the purposes of levy of customs duty and the Customs Valuation Rules, 2007 (CVR in short) were amended to specifically include barge charges and handling charges in the transaction value of the imported goods vide Finance Act, 2007 to overcome the adverse decision in the case of Ispat Industries (2006 (9) TMI 181 - SUPREME COURT OF INDIA). Section 14 was substituted "to specifically provide that transaction value of imported goods shall include, in addition to the price, any amount paid or payable for costs and services, including commissions, cost of transportation to the place of importation, insurance, unloading and handling charges to the extent and in the manner specified in the rules made in this regard".

  If the bills raised for the services rendered indicates the amount charged for cargo handling and transportation separately on actual basis, then the tax would be leviable only on the cargo handling charges. The contracts entered into with the customers show separately the charges towards shipping charges of cargo from Mother Vessel to Dharamtar jetty. Therefore, there is no merit in the contention that transportation charges should be included in the value of taxable services in respect of cargo handling service.

  Transport of coastal goods and goods transported through inland water came under the purview of service tax levy vide Finance Act, 2009, with effect from 06/07/2009. Vide notification No. 30/2009-ST dated 31/08/2009 transport of coastal goods in respect of items specified in the Table annexed thereto were exempt from service tax. The appellant herein undertook coastal transportation of fertilizers, which is one of the items specified in the notification as eligible for exemption. Revenue is seeking to confirm service tax demand under the category of cargo handling service. It is a settled position in law that when a new entry is brought under service tax levy, the same activity cannot be subjected to levy under an existing entry unless the new entry is carved out of the existing entry - Therefore, there cannot be any demand for service tax on coastal transportation of goods prior to July, 2009. Further the goods transported by the appellant is also covered by Notification 30/2009-ST. In this factual and legal scenario, the demand of service tax under the category of cargo handling service has to be set aside especially when the activity is squarely covered under the entry of coastal transportation of goods and we hold accordingly.

  Department initially sought to recover the tax under the entry for 'Port Services' vide letter dated 22.02.2008 but changed its stance to 'Cargo Handling Service' upon being informed by the Appellant vide letter date 27.02.2008 that it did not possess the requisite port authorisation for the barging to be classified under 'Port Services'. The decision of the apex court in Uniworth Textiles Ltd. vs. CCE, Raipur [2013 (1) TMI 616 - SUPREME COURT], wherein it was held that the extended period of limitation is not invokable for mere non-payment and requires a deliberate default on the part of the assessee, is also applicable. The facts available on record clearly show that the department itself was not clear as to the classification of service rendered by the appellant and has been changing their stand. In such a scenario, the allegation of suppression with an intent to evade service tax cannot be sustained. Thus the appeal succeeds on account of time bar also apart from merits. Impugned orders classifying the services rendered by the appellant under "cargo handling service" and confirming the service tax demands accordingly are clearly unsustainable in law. Accordingly we set aside the same - Decided in favour of assessee.

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• 2014 (12) TMI 501
  

  Waiver of pre deposit - construction and repair activity - construction of foundation walls for sub-station or control rooms, foundation for electricity tower etc - Exempted under Notification No. 45/2010-S.T., dated 20-7-2010 - Held that:- Applicants also relied on the Notification No. 11/2010-S.T. which provides exemption to services provided for transmission of electricity only. During the arguments, the applicants disclosed that the demand for the period after 26-2-2010 comes to approximately ₹ 11 lakhs. The applicants already deposited more than ₹ 18 Lakhs. In respect of the demand on the construction of hostel for women and Synthetic Track in the University, we find that there is no dispute regarding this activity and, prima facie, the activity is not commercial. In the above facts and circumstances of the case, the amount already deposited is sufficient for hearing of the appeal. Pre-deposit of the dues is waived and recovery thereof is stayed during the pendency of the appeal. - Stay granted.

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• 2014 (12) TMI 500
  

  Consulting Engineer service - Whether the companies, i.e. body corporate, are covered under the definition of ‘consulting engineer’ prior to 1-5-2006 - Held that:- Trade Notice No. 53-C.E. Service Tax/97, dated 4-7-1997 clarified that in respect of consulting engineer service where the services are rendered to the prime consultant by the sub-consultant, the sub-consultant is not liable to pay service tax. In the present case, the Revenue is not disputing that the appellant provided services to M/s. NEC Engineers Pvt. Ltd. as a sub-contractor. Following decision of Turbotech Precision Engineering Pvt. Ltd. [2010 (4) TMI 344 - KARNATAKA HIGH COURT] - Decided in favour of assessee.

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• 2014 (12) TMI 499
  

  Management Consultancy Services - Deputation of executives - fees received for that work were not declared in the ST-3 returns - Held that:- From the nature and description of the service rendered, it is obvious that the charges have been collected on account of deputation of staff. It is also clear that the staff so deputed has to look after various assignments given to them by the group companies and they are not doing any activity assigned by the appellant to them. Service of deputation of staff does not come under the category of ‘Management Consultancy Service’ but falls under ‘Manpower Recruitment or Supply Agency Service’ - services rendered by the appellant in the case before us does not fall under the category of ‘Management Consultancy Service’ but comes under the category of ‘Manpower Supply Agency Service’ which came under tax net effective from 16-6-2005. Since the period involved in the present case is from October, 1998 to January, 2002, much prior to the introduction of levy on ‘Manpower Supply or Recruitment Agency Service’ the demand raised in the impugned order does not sustain - Following decision of Sterlite Optical Technologies Ltd. v. Commissioner of Central Excise, Vapi [2008 (12) TMI 72 - CESTAT, AHMEDABAD] and Carborandum Universal Ltd. v. Commissioner of Central Excise, Chennai [2009 (12) TMI 184 - CESTAT, CHENNAI] - Decided in favour of assessee.

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• 2014 (12) TMI 498
  

  Refund of the Service Tax - Cenvat credit - Input services - Held that:- As regards the rejection of refund pertaining to Service Tax paid on group insurance policy, which also includes members of the family of the employee, the issue has already been settled in favour of the appellant in the cases of Micro Labs Ltd. [2011 (6) TMI 115 - KARNATAKA HIGH COURT] and Stanzen Toyotetsu India (P) Ltd., cited [2008 (12) TMI 118 - CESTAT BANGLORE] decided by the Hon’ble High Court of Karnataka. Therefore, the appellant is rightly entitled to take credit of Service Tax paid on insurance premium on group insurance policy as the said service is an eligible input service and we hold accordingly.

  As regards the Service Tax paid on car parking rentals, the car parking is part of the business premises of the appellant and is a business expenditure. Therefore, it is an eligible input service as defined in Rule 2(l) of the Cenvat Credit Rules, 2004. The Hon’ble High Court of Bombay in the case of Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] held that any input service which has a nexus with the business of manufacture or relating to business would get covered under the term ‘input service’ under Rule 2(l) of the Cenvat Credit Rules and accordingly Cenvat credit on such services would be available. In view of the above we are of the considered view that service tax paid on car parking rentals is an eligible input service under Rule 2(l) of the Cenvat Credit Rules and consequently the appellant would be eligible for refund of the same under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-S.T., dated 14-3-2006.

  As regards the credit relating to services for which the input invoices were not produced, the appellant is directed to submit the same before the adjudicating authority to consider their eligibility to the credit and the consequential refund in accordance with law - Matter remanded back - Decided in favour of assessee.

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• 2014 (12) TMI 495
  

  Waiver of pre deposit - Commercial use or exploitation of any event service - Conduct of cricket matches - Held that:- In any case it is not the appellant who is exploiting the IPL for commercial use. This is done by BCCI only. Appellant has a prima facie case in respect of this demand. appellants have either paid the entire amount due in respect of various services or have a prima facie case on merit in respect of others, In view of the above, we consider that the appellants have made out a case for waiver of pre-deposit and stay against recovery during the pendency of appeal - Stay granted.

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• 2014 (12) TMI 494
  

  Business Auxiliary Service - Penalty u/s 78 - Held that:- The appellant undertake the joining of sections of rails at site by thermite welding process. The welding of section of rails which are of length of 100 Mtrs is done at site as result of which there are lesser number of gaps at every 2Km instead of at every 100 Mtrs resulting in smooth movement of train on railway tracks. In fact, the process undertaken by the Appellant is part of the process of laying down of tracks and make them fit for traffic movement as before undertaking the thermite welding process, the rails have to be precisely aligned. In our view, therefore, the activity of the appellant does not result in any deliverable goods to the railway and it cannot be said to be the production or processing of goods not amounting to manufacture. The impugned order, therefore, is not sustainable - Decided in favour of assessee.

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• 2014 (12) TMI 462
  

  Waiver of pre deposit - Cenvat credit - input services - construction of a technology park for renting out for various firms and service - Held that:- services are definitely relatable services and have been used for construction of the premises. We have also find reliance placed on the decisions in the case of Navratan SG Highway Properties Pvt. Ltd. Vs. CST, Ahmedabad - [2012 (7) TMI 316 - CESTAT, AHMEDABAD] and C.C.E, Visakhapatnam-II vs. Sai Samhita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] is applicable to the facts of this case. - issue relates to liability of various services for the period before construction was completed and even in that case, exemption for construction service and other services were held to be eligible - appellant has made out a prima facie case for complete waiver of pre-deposit of the adjudged dues. Accordingly, requirement of pre-deposit of waived and stay against recovery is granted during pendency of the appeal. - Stay granted.

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• 2014 (12) TMI 461
  

  Invocation of extended period of limitation - Whether extended period can be invoked in a case where penalty imposition under Section 78 has been waived as per Section 80 of the Finance Act, 1994 - Held that:- Even in the case of where Section 78 is invokable and established the penalty imposed upon an assessee can be set-aside under Section 80 of the Finance Act, 1994 in case it can be proved by an assessee that there was a reasonable cause for failure. Therefore, it can be independently examined whether extended period can be invoked, where waiver of Section 78 penalty upon the appellant is allowed as per the provisions of Section 80 of Finance Act, 1994. The case of Gujarat High Court in the case of Ankleshwar Taluka ONGC Land Loosers Travellers Co.Op vs. CCE, Surat (2012 (4) TMI 326 - GUJARAT HIGH COURT) relied upon by appellant was different on facts. There was a written contract between M/s. ONGC and that appellant having no service tax clause. M/s. ONGC refused to pay tax to the appellant in that case. It was specifically brought to the notice of High Court that in those circumstances the service tax could not be deposited in time. In the present case before this bench, no written contract is produced to indicate that service tax clause was not there. There is also no indication that M/s. Gujarat Borosil Limited refused to pay service tax to the appellant. There is also no evidence that appellant had any confusion that service tax payment on Rent-a-Cab services was disputable.

  In the present case the entire demand is not time barred and appellant has not shown his bonafides by paying the service tax along with interest for the period within limitation period. Appellant is not able to convince the Bench, with any documentary evidence that there was any confusion in his mind regarding non payment of service tax. Extended period is applicable in the present appeal even if waiver from Section 78 penalty has been extended to the appellant under Section 80 of the Finance Act, 1994. - Decided against assessee.

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• 2014 (12) TMI 460
  

  Power of tribunal to grant stay beyond the total period of 365 days - extension of stay granted earlier - extension order should be speaking or not - Held that:- It is noticed from the records that Stay/Partial Stay was granted to the appellant on 30.03.2012. After granting of stay to the appellant this appeal has never been listed for final hearing. The appeal could not be listed for final hearing by the Registry due to heavy work load as the appeals filed for the earlier period are being listed. Hon’ble Gujarat High Court has held that extension can be allowed by the Bench looking to the facts and circumstances of this case. We find that there is no fault of the appellant in seeking extension of the stay already granted. The request made by the appellant is genuine and extension of stay is granted till the disposal of appeal. - Following decision of Commissioner of Customs & Central Excise, Ahmedabad vs. Kumar Cotton Mills Pvt. Limited [2005 (1) TMI 114 - SUPREME COURT OF INDIA] and Commissioner Versus Small Industries Development Bank of India [2014 (7) TMI 738 - GUJARAT HIGH COURT] - Stay extended.

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• 2014 (12) TMI 459
  

  Sale of software - packaged software were imported from the replicator or the foreign supplier - Intellectual Property Right Services - Payment made to Microsoft - Held that:- Commissioner has held that Microsoft has copyright of the software and only right to use the software by end user by way of license agreement with copyright protection for Intellectual Property Service copyright is exempted to levy of service tax. We, further, find that it is a computer software programme which is given on commercial rental to the applicants by M/s. Microsoft. In these circumstances, prima facie we are of the view that the applicant is covered as a copyright holder and not required to pay service tax under the category of Intellectual Property Right Services. Therefore, for the period prior to 16.5.2008 applicant is not required to pay service tax.

  For the period post 16.5.2008, we, find that as observation made by this Tribunal in the case of Infotech Software Dealers Association (2010 (8) TMI 13 - HIGH COURT OF MADRAS) and has held by the Hon'ble Apex Court in the case of Tata Consultancy Services reported in [2004 (11) TMI 11 - Supreme Court] the transaction of sale of computer software is a sale of goods. Further, in the case of Suzlon Energy Ltd. Vs. Commissioner of Central Excise Pune-III [2014 (8) TMI 96 - CESTAT MUMBAI] wherein this Tribunal observed that the transaction was treated as supply of goods for the purpose of Customs duty, therefore, transaction cannot be treated as supply of service and levy of service cannot be made on the entire value of transaction once again. In these circumstances, we are of the view that the sale of software is only a sale of goods and the service tax cannot be levied. Further, we find merit in the contention of the Ld. Counsel for the applicant that right to use software is given to the end user and the applicant is only an intermediary. Therefore, the applicant is not liable to pay service tax. - applicant has made out a case for complete waiver of pre-deposit of entire amount of service tax, interest and penalties. Accordingly, we waive the requirement of pre-deposit of entire amount of service tax, interest and penalties and stay recovery therefore during the pendency of the appeal - Stay granted.

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• 2014 (12) TMI 458
  

  Waiver of pre-deposit - levy of service tax on collection of development fees for development of the airport in future - airport services - Held that:- Levy of development fee has been struck down by the Hon'ble Supreme Court holding that the applicant is not entitled to collect the development fee from the passengers through airlines in the case of Consumer Online Foundation (2011 (4) TMI 1275 - SUPREME COURT OF INDIA). Therefore, it is not a service and the same view has been taken by this Tribunal in the case of Cochin International Airport Ltd. (2009 (7) TMI 120 - KERALA HIGH COURT) which has been affirmed by the Hon'ble Kerala High Court. Further, as argued by the learned Spl. Counsel that intention of the parties has to be seen as they have collected the development fee as service to be provided in future. We have seen the intention of the parties and gone through the records placed before us. On the basis of the records, we find that from May 2012 onwards the applicants have charged tax on these development fees from the airlines and whatever service tax collected by them has been paid to the department. In these circumstances, prima facie, the applicants have made out a case for complete waiver of pre-deposit of the entire amount of service tax, interest and penalties. Accordingly, we waive the requirement of pre-deposit of the entire amount adjudged and stay recovery thereof during the pendency of the appeals. - Stay granted.

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• 2014 (12) TMI 457
  

  Option to levy Simultaneous Penalty u/s 76, 77 & 78 - Power of adjudicating authority - Intention to suppression of facts - Held that:- During the relevant period penalty under Sections 76 and 78 of Finance Act, 1994 were not mutually exclusive and therefore the Commissioner (Appeals ) is not correct in holding that the two penalties (under Sections 76 & Section 78) could not be imposed simultaneously. However it is seen that the Punjab and Haryana High Court in the case CCE Vs. First Flight courier 2[2011 (1) TMI 52 - High Court of Punjab and Haryana] has observed that penalty under Section 76 may not be justified if penalty had already been imposed under Section 78. Even if it is not correct to say that penalty under Section 76 can never be imposed after penalty under Section 78 is imposed, the appellate authority was within its jurisdiction not levy penalty under Section 76 having regard to the fact that penalty equal to service tax has already been imposed under Section 78 of the Finance Act 1994. Following decision of CCE Vs. Pannu Property Dealers, Ludhiana [2010 (7) TMI 255 - PUNJAB AND HARYANA HIGH COURT]. - Decided in favour of assessee.

  It is not enough to merely claim that they had bona fide belief that their services were not liable to service tax. It is to be demonstrated that they had taken reasonable steps to ascertain about the taxability of their services which evidently in this case they had not taken. Bona fide belief is an informed belief and the appellants have not been able to show as to on what basis they could harbour the belief that the impugned services were not taxable when they were providing such services on such a large scale. Seen in this light non-payment of service tax for such a long period clearly leads to a sustainable conclusion that it was an act which was wilfull for evading service tax. Therefore penalty under Section 78 ibid is clearly imposable. There is however force in the contention of the appellants that neither the original adjudicating authority nor the appellate authority gave than an option to pay (reduced) penalty of 25% of the Service Tax in terms of the proviso under Section 78. Following decision of CCE, Chennai vs. Zen Systems and Maintenance Pvt. Ltd. 2013 (7) TMI 603-CESTAT (Chennai) appellants deserve to be given the benefit to pay 25% of the penalty under Section 78 ibid within a month of the receipt of this order. - Decided partly in favour of assessee.

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• 2014 (12) TMI 456
  

  Waiver of predeposit - E-publishing services - Held that:- There is no dispute on the fact that appellant is engaged in providing of E-publishing services to overseas customers. Part of the services like, copy editing, indexing, project management outsourced to the overseas customer which is squarely covered under "Import of Services". The remittance of foreign currency is not under dispute. The above activities particularly the project management outsourced relates to managing specified E-publishing project given by the customer efficiently. We find that appellant had initially contested before the adjudicating authority that their services were covered under IT services and the adjudicating authority held that their activity does not fall under "Information & Technology Services". However, the appellant in the present appeal advanced their contentions under "Business Auxiliary Service" under clause (vi) as provision of services on behalf of the client before the Tribunal for the first time. Considering the nature of services and also considering the fact that the appellant has initially contested that Information & Technology services before the adjudicating authority and now they are contesting under Business Auxiliary Service, the appellants have prima facie not made out a case for total waiver of predeposit. - Partial stay granted.

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• 2014 (12) TMI 455
  

  Reversal of cenvat credit towards trading activity - Rule 6 (3) of CENVAT Credit Rules 2004 - Held that:- Appellant was liable to reverse proportionate credit on the total trading turnover which has been worked out by the appellant as ₹ 31,89,728/- in our opinion has also to be deposited. Since amendments in the relevant rules and provisions were brought in 2011 to deem trading as a service and separate exemption notification was issued making it an exempted service. Prior to that, if a service was non-taxable or exempt, it was to be considered as an exempted service and if common services were used for exempted services and taxable services/dutiable manufactured items, separate accounts were required to be maintained in respect of inputs and input services failing which there were statutory requirements to be fulfilled. Once we hold that trading is not a service and cannot be considered as service prior to 01.04.2011, the provisions of Rule 6(3) of CCR 2004 which requires payment of a percentage of value of the goods traded, in case separate accounts are not maintained would not be applicable. However, since trading is an activity and certain amount of services would have been used in such activity, the appellants have to reverse proportionate credit attributable to trading activity. Appellant was liable to reverse proportionate credit on the total trading turnover which has been worked out by the appellant as ₹ 31,89,728/- in our opinion has also to be deposited - Partial stay granted.

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• 2014 (12) TMI 422
  

  Rectification of mistake - Refund/rebate claim - Unjust enrichment - Held that:- There is no whisper anywhere of the unjust enrichment being involved, except in one case. Therefore, the lower appellate authority is not required to given any finding on an issue which was not urged before him. Therefore, the ground taken by the Revenue that it had urged this point before the lower appellate authority is not borne out from the records and, therefore, it cannot be said that there is an error apparent on the face of the record committed by this Tribunal. We further observe that while disposing of the appeal filed by the Revenue, we have also observed that the transaction involved is one of export, and therefore, the service provider is rightly entitled for the refund of the service tax paid. The learned counsel for the respondent also submits that even in respect of the export transaction, if tax is recovered from the customers, the same would not disentitle the tax payer from claiming refund as held by the hon'ble Bombay High Court in the case of Uttam Steel Ltd. vs. Union of India [2003 (8) TMI 55 - HIGH COURT OF JUDICATURE AT BOMBAY].

  In Rashtriya Chemicals & Fertilizers Ltd. [2013 (3) TMI 478 - CESTAT MUMBAI], this Tribunal observed that even if grounds have been taken in appeal memorandum but if the same is neither urged nor argued at the time of hearing there cannot be any mistake which involves rectification. The same view was affirmed by the hon'ble High Court of Bombay in the same case reported in [2013 (10) TMI 1193 - BOMBAY HIGH COURT] - there is no merit in the contention urged in the Rectification of Mistake Application filed by the Revenue - Rectification denied.

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