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Service Tax - Case Laws
Showing 61 to 80 of 102 Records
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2015 (4) TMI 495 - CESTAT KOLKATA
Waiver of predeposit of service tax - Business Auxiliary Service - relevant clause of section 65(19) was not mentioned in the SCN - Penalty u/s 78 - Held that:- Show-cause notice though does not mention the specific clause of Section 65 (19) of the Finance Act, 1994, the definition of BAS, however, is clearly spelt out in the impugned show-cause notice alleging that the Applicant has provided aforesaid services for and on behalf of their clients - Commissioner has, after considering the relevant facts, arrived on the conclusion that in the present case, the Applicant was involved in rendering services which are incidental and auxiliary to the service of "procurement of goods from services, which are inputs for client" falling under Clause (iv) and hence would fall under clause (vii) of Section 65 (19) of the Finance Act, 1994, as amended. We also find that the ld.Commissioner has categorically recorded that in spite of several reminders, the Applicant did not submit particulars of such services during the relevant period, so as to enable the Department to compute the service tax liability. - Prima facie case not in favour of assessee - Partial stay granted.
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2015 (4) TMI 464 - ORISSA HIGH COURT
Renting of Immovable Property Services - Invocation of extended period of limitation - Suppression of facts - Held that:- Any finding by the Court at this stage is likely to be prejudicial, either the petitioner-BDA or the Service Tax Authority. At a stage where demand-cum-show cause notice has been issued to the BDA, various grounds have been indicated in the show cause notice as to why the Service Tax Authority are seeking to apply the extended period of limitation to the facts and circumstances of the case. Further, in view of the fact that although it appears that an agreement was signed between the BDA and M/s. Unitech Ltd. on 14.3.2008, the same was admittedly registered only on 30.9.2010 and the consequences thereof are the matters to be determined in the light of the submissions that may be advanced by the petitioner in course of such determination.
In view of the judgment of Collector of Central Excise, Hyderabad (1989 (2) TMI 116 - SUPREME COURT OF INDIA), the issue itself, i.e. as to whether the extended period of limitation would apply, is yet to be determined by the adjudicating authority itself at the first instance. Consequently, without expressing any finding on the issues raised in course of the argument, we dismiss the writ application but allow the petitioner a further period of 30 days to file show cause reply and also to participate in such proceeding. The petitioner is at liberty to raise all such contentions and the Commissioner shall deal with the matter strictly in accordance with law without in any manner being influenced by any observation made hereinabove and reach in an independent conclusion both on fact and legal issues raised. - Decided in favour of assessee.
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2015 (4) TMI 463 - RAJASTHAN HIGH COURT
Waiver of pre deposit - option to pay 7.5% or 10% of demand under the new substituted provisions of Section 35F - since orders were passed before the amendment was made effective - levy of service tax on the lease rent and development charges - renting of immovable property service - Held that:- In Paramount Security through its Proprietor Vs. Union of India & Ors., a Division Bench of this Court, considering the effect of new substituted provisions of Section 35F with effect from 06.08.2014, recorded an opinion that the effect of the amendment cannot be restricted only for those appeals which are filed after 06.08.2014. Such a restriction will be violative of Article 14 of the Constitution of India. The amended provisions, thus, will apply to even those orders, which have been passed before the amendment was made effective. While issuing notices of the writ and the stay petition, the Division Bench had directed that, in the meantime, the appeal shall not be dismissed by the Tribunal, provided the petitioner complies with the condition of pre-deposit in terms of amending Section 35F, introduced with effect from 06.08.2014, within a period of four weeks. - No good ground to take a different view, at the stage of passing of an interim order. - Decided conditionally in favour of assessee.
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2015 (4) TMI 462 - CESTAT MUMBAI-LB
Denial of refund claim - Scientific and Technical Consultancy Service - Bar of limitation - Whether the "relevant date" for deciding the limiting period of one year under Clause 6 of Appendix to Notification 5/2006-CE(NT) dt. 14.3.2006 for sanction of refund of Cenvat Credit under Rule 5 of Cenvat Credit Rules read with Notification No. 5/2006-CE(NT) dt. 14.3.2006 - Held that:- Relevant date for determining the period of limitation will be the date of export of services from the date when the invoices are raised and the date on which consideration is received whether it is in part or full or advanced while in the case of Bechtel India Pvt. Ltd. - [2013 (7) TMI 490 - CESTAT NEW DELHI] it was held that the relevant date for refund is the date of receipt of foreign exchange. It is also to be noted that the decision of this Tribunal in the case of Affinity Express India Ltd. (2014 (6) TMI 593 - CESTAT MUMBAI) and Business Process Outsourcing (I) Pvt. Ltd. (2014 (9) TMI 747 - CESTAT BANGALORE) were rendered by a Single Member Bench while the judgement in the case of Bechtel India Ltd. (2013 (7) TMI 490 - CESTAT NEW DELHI) has been rendered by a Division Bench. - decision of this Tribunal in the case of Affinity Express India Ltd. (2014 (6) TMI 593 - CESTAT MUMBAI) and Business Process Outsourcing (I) Pvt. Ltd. (2014 (9) TMI 747 - CESTAT BANGALORE) were rendered by a Single Member Bench while the judgement in the case of Bechtel India Ltd. (2013 (7) TMI 490 - CESTAT NEW DELHI) has been rendered by a Division Bench. It is a settled law that reference to the Larger Bench is made only in a situation when there is a contrary view expressed by two different Benches on a given issue. - in the absence of any contrary view expressed by any other Division Bench no reference lies to the Larger Bench. In our considered view, as no reference lies to the Larger Bench hence, the reference needs to be returned and is returned.
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2015 (4) TMI 461 - CESTAT NEW DELHI
Waiver of pre deposit - Erection, Commissioning or Installation Service - Abatement of 67% - Jurisdiction of authority - Held that:- jurisdictional commissioner, who passed the impugned order is having the jurisdiction only for the office registered in Delhi. For the other locations, Faridabad, Noida and Alwar, the adjudicating authority has no jurisdiction. Therefore, the demands pertain to those jurisdiction are not sustainable as held by this Tribunal in the case of Tina Sales Agecy Vs. CCE (Prev.), Mumbai [2015 (1) TMI 207 - CESTAT MUMBAI] and in the case of Vihar Aahar Pvt Ltd. Vs. CST, Ahmedabad [2012 (11) TMI 370 - CESTAT AHMEDABAD]. Therefore, the demand pertains to the contract receipts of ₹ 4,43,70,778/- for which service tax works out to ₹ 51,31,929/-.. Prima facie, the demand is not sustainable. For the rest of the demands, the applicant, prima facie, entitled for 67% abatement. In these circumstances, the demand pertains to Delhi jurisdiction is worked out to ₹ 5,62,18,873/-. The applicant is entitled for 67% abatement on the amount. - Partial stay granted.
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2015 (4) TMI 430 - CESTAT NEW DELHI
Refund of cenvat credit - export of non-taxable servcies - Notification No. 5/2006-CE (NT) - information technology software service - Service became a taxable service from 16/5/2008 and therefore prior thereto no credit in respect of that service was admissible and no refund was admissible - Held that:- under Rule 5 ibid refund of Cenvat credit is allowed only in respect of input services used in providing "output service" which is exported. "Output service" during the relevant period was to mean a "taxable service" as per definition under Rule 2 (P) ibid. Thus it is evident that prior to 6.5.2008 the appellants were not exporting any "output service" and therefore Rule 5 itself is not applicable in their case.
Decision in the case of mPortal India Wireless Solutions.(P) Ltd [2011 (9) TMI 450 - KARNATAKA HIGH COURT] and [2010 (7) TMI 92 - CESTAT, BANGALORE] distinguished.
Cenvat credit is governed only and only by Cenvat credit Rules and therefore the above observation of CESTAT that this benefit is apparently not limited by provisions of Cenvat Credit Rules is devoid of any basis at all. In any case, as CESTAT itself observed that this plea was not taken by the appellant and having regard to the fact that CESTAT also gave this finding rather tentatively, as is evident form the word "apparently" appearing in that sentence, it can not be inferred that CESTAT laid down any ratio to be followed as a precedent. - impugned order does not suffer from any legal infirmity and therefore the same is sustained - Decided against assessee.
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2015 (4) TMI 429 - CESTAT MUMBAI
Business Auxiliary Service - Receipt of commission from the financial institutions/banks - Imposition of penalty and penalty - Held that:- assessee did not contest the issue on merits before the adjudicating authority. - appellant having not contested the issue on merits before the adjudicating authority, cannot do so before us
Amounts which have been received by them from financial institutions/banks as commission are lump sum amounts and the said amounts, can be considered as cum tax amount and the service tax liability needs to be reworked. Claim of the appellant is correct and needs to be considered as cum tax amount; upholding the service tax liability has having been conceded before the adjudicating authority, we direct the lower authorities to rework out the service tax liability and the interest thereof.
CBE&C vide Circular No. 87/05/2006-ST dated 06/11/2006 has clarified that the amounts received as commission from the financial institutions/banks would be taxable under BAS. The said board circular specifically states that there were certain doubts in the mind of the field formation and hence, reference was made. We are of the considered view that if the field formation or the tax collectors were themselves in doubt and clarification has to be issued by the Board and the period involved in this case being prior to 06/11/2006, the appellant has made out a case for invoking the provisions of Section 80 of the Finance Act, 1994; accordingly, we invoke the provisions of Section 80 and set aside the penalties imposed on the appellant - Decided partly in favour of Revenue.
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2015 (4) TMI 428 - CESTAT CHENNAI
Waiver of pre deposit - Construction of complex - Commercial or industrial Construction Service - Imposition of penalties and interest - services provided to public authorities - held that:- No co-operation of the appellant, the authority was in dark to consider the submission of the appellant. He passed exparte order basing on the materials available on record. The manner appellant has acted before law, throws light that it had defiant attitude toward law which is patent from the adjudication order - Keeping in view the prima facie case suggesting balance of convenience tilting in favour of Revenue and appreciating no undue hardship may be caused by this order to the appellant, as an interim modality, we direct the applicant to deposit ₹ 4,00,00,000 within 4 weeks from receipt of the order - Partial stay granted.
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2015 (4) TMI 396 - JHARKHAND HIGH COURT
Recovery of service tax u/s 87 without adjudication on the basis of raid - show cause notice issued later - more than admitted amount by this petitioner has been deposited - Held that:- Unless the proceeding under Section 73 of the Act is completed recovery notice under Section 87 could not have been issued by the respondents - Following decision of Technomaint Contractors Pvt. Ltd Vs. Union of India, as reported in [2014 (4) TMI 882 - GUJARAT HIGH COURT], R.V. Man Power Solution vs. Commr. of Cus. and Central Excise, as reported in [2013 (4) TMI 294 - UTTARAKHAND HIGH COURT] - Orders at Annexure 5 dated 11.08.2014 as well as order at Annexure 6 dated 01.09.2014 are hereby quashed and set aside as the respondents have already issued demand-cum-show cause notice under Section 73 (1) dated 17.10.2014, covering the disputed amount at ₹ 4,45,97,399/- is directed to be adjudicated upon as early as possible and practicable - Decide in favour of assessee.
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2015 (4) TMI 395 - CESTAT MUMBAI
Eligibility to avail Cenvat credit for providing Cellular services - towers and pre-fabricated buildings/shelters - Capital goods - whether the appellants are to be saddled with the demands of reversal of Cenvat credit by invoking extended period or otherwise and whether penalties are to be imposed on them or not - Held that:- High Court in the case of Bharti Airtel Ltd. [2014 (9) TMI 38 - BOMBAY HIGH COURT] has held that The subject items are neither capital goods under Rule 2(a) nor inputs under Rule 2(k) of the Credit Rules and hence CENVAT credit of the duty paid thereon was not admissible to the appellants.
When the high courts have already held that towers would become immovable property, the argument which was led by the learned Counsel that the Hon'ble High Court of Bombay has not considered the definition of immovable property as it is envisaged in the Transfer of Property Act and General Clauses Act, is incorrect and will not carry the case of appellants any further. - appellants therein were providers of storage and warehousing services; immovable property service and business auxiliary service, for which they need to have infrastructure in its place.
In the cases in hand, with which we are dealing with are the telecommunication companies providing cellular services, we find that basically all the appellants herein are providers of telecommunication/cellular services and the facility created by them in form of towers and pre-fabricated buildings are for their own use. Predominantly, the towers and pre-fabricated buildings/shelters were utilised by the appellants herein for rendering their own telecom/cellular services.
In view of this ratio laid down in the case of Sai Sahmita Storages Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT], SG Navratna [2012 (7) TMI 316 - CESTAT, AHMEDABAD ] and GTL Infrastruture Ltd., (2014 (9) TMI 647 - CESTAT MUMBAI) may not apply, as the facts in those cases are totally differen than the facts in these bunch of appeals. Be that as it may, we find that as the issue involved in this case is covered by the direct judgement of the jurisdictional High Court, judicial discipline demands that ratio of jurisdictional High Court is to be followed by this Bench.
Extended period of limitation - Held that:- It is evident and not in dispute that not only returns were filed periodically but audit was also conducted by the department. Even in the audit through returns were available, issues raised herein were not raised in few cases. In one of the cases Tribunal cannot lose the sight of the vital fact that final audit report during the concerned period did not indicate wrong availment of Cenvat credit on towers and pre-fabricated buildings. The omission which is subsequently alleged therefore, cannot be said to be beyond the department's knowledge. The facts in all these cases clearly show that appellants conduct was bonafide and there was no design to commit any fraud or to evade any duty. - allegation of suppression of material facts with intent to evade tax cannot be sustained.
The demands within the limitation period as confirmed are upheld along with interest.
Levy of penalty - Held that:- as the issue was of are interpretative nature i.e., as to eligibility of Cenvat credit or otherwise on the towers and the building and had to be settled in the hands of the Hon'ble High Court, the appellants could have entertained a bonafide belief. Hence, all the penalties imposed on all the appellants herein are set aside by invoking the provisions of Section 80 of the Finance Act, 1994. - Decided partly in favour of assessee.
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2015 (4) TMI 394 - CESTAT AHMEDABAD
Denial of refund claim - SEZ - Held that:- Under Section 7 and 26 of the SEZ Act 2005, the taxable service provided to developer or unit to carry out authorized operation in SEZ is exempted from service tax. The Notification No.9 /2009- ST, cannot disentitle the immunity enjoyed by SEZ Act. - Advocate placed a statement/chart before the Bench. But, all other issues are not clear from the said statement, as stated by the ld.Authorised Representative. Both sides failed to demonstrate and clarify the other issues, where the refund claims were denied and it is difficult for the Bench to decide the other issues. - other issues should be examined by the Adjudicating Authority in the light of the decisions placed by ld. Advocate . It is seen that in the impugned orders, the Commissioner (Appeals) also had not split up the issues pertaining to admissibility of refunds in respect of individual service for reason other than the reasons covered in the judgment of CST Vs Zydus Technologies Ltd (2014 (5) TMI 100 - GUJARAT HIGH COURT) and Intas Pharma Ltd Vs CST [2013 (7) TMI 703 - CESTAT AHMEDABAD] and Tata Consultancy Services Ltd. [2012 (8) TMI 500 - CESTAT, MUMBAI] - Matter remanded back - Decided in favour of assessee.
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2015 (4) TMI 364 - CESTAT CHENNAI
Demand of service tax - GTA outward transport service - Reverse Charge mechanism - clandestine removal of excess quantity of finished goods - Held that:- for the very same period and, for the same goods, the audit has raised objection on the presumption that they could have not discharged the GTA service tax on the excess quantity of goods cleared without payment of duty on the finished goods. It is surprising to see that the DGCEI had investigated the case and issued the show cause notice and demanded duty and the same has been settled by the Order of the Hon'ble Settlement Commission. The present show cause notice has been issued on the same goods covered under the above show cause notice on the presumption that the appellants have not discharged the service tax. No documents, or any work sheet on how the service tax amount on GTA outward transportation has been arrived was submitted by the Department nor it was brought in the show cause notice or in the impugned order. - demand of service tax on GTA outward on the alleged clandestinely removed goods is not sustainable and devoid of merits. The impugned order is liable to be set aside on merits - Decided in favour of assessee.
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2015 (4) TMI 363 - CESTAT CHENNAI
Denial of CENVAT Credit - Gardening and House Keeping Services - whether the appellant is eligible for availing input service credit on gardening and house-keeping services, which was disallowed by the Commissioner (Appeals) in the impugned order - Held that:- appellant is a manufacturer of shampoo and manufacturing cold cream registered with central excise. As seen from the Pollution Control License Order dated 2012.2004 (sic) and Schedule-M of the Drug Control Act, it is mandatory for the appellant to maintain green cover and also should use the effluent treated water and keep the factory premises clean. Therefore, as per the statutory requirement, the appellant is required to maintain gardening and green cover and plants and cleanliness of the manufacturing premises. The case law relied upon by the appellant in the case of Murugappa Morgan Thermal Ceramics Ltd. (2013 (4) TMI 384 - CESTAT AHMEDABAD), applicable to the present case. The Tribunal rightly held that the services used for maintaining the garden will be admissible as it is required to maintain green cover as per law. Whereas, the case law relied upon by the Ld. AR M/s. Tyco Sanmar and M/s. Xomax Sanmar (2010 (8) TMI 711 - CESTAT, Chennai) wherein the issue relates to the cenvat credit on landscaping services and the same is not applicable to the facts of the present case. I hold that the appellant is eligible for credit on gardening and house-keeping services - Decided in favour of assessee.
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2015 (4) TMI 362 - CESTAT BANGALORE
Condonation of delay - Non receipt of order - Held that:- It is clear that order was only dispatched and no evidence is available of receipt. According to the decision of the Tribunal referred to above in reproduced paragraphs, it is necessary that the order should reach the appellant. In this case, according to learned C.A., the appellant did not know that order has been sent to them and when they received Order-in-Original in a subsequent case, they came to know that earlier order has been passed and thereafter, they made a request to the department on 2/1/2013 and received a copy on 10/1/2013 and thereafter, the appellant filed appeal on 31/1/2013. In view of above discussions referred to above, appeal having been filed within time, the impugned order is set aside and since there is no order on merits, the matter is remanded to the Commissioner (Appeals) for fresh decision on merits treating the appeal as filed within the limitation period prescribed under the law - Delay condoned.
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2015 (4) TMI 322 - MADRAS HIGH COURT
Condonation of delay - Inordinate delay of 1085 days - Power of Commissioner to condone delay beyond condonable period - Held that:- It is to be noted that under Section 85(3) of the Finance Act, the appeal to Commissioner (Appeals) was to be filed within three months from the date of communication of the order and as per the proviso to Section 85(3), a further period of three months could be granted where sufficient cause was shown. The Commissioner (Appeals) has no power to condone such abnormal delay. - when the scheme of the special law which herein in this case is the Customs Act and the nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself, which alone should govern the several matters provided by it, it is clear that the provisions of the Limitation Act are necessarily excluded, the benefits conferred therein cannot be called in aid to supplement the provisions of the Act, this Court is of the view that the delay which is beyond the statutory period of limitation, cannot be condoned. Court is not inclined to grant the relief sought for in the writ petition and the same are dismissed - Decided against assessee.
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2015 (4) TMI 321 - CESTAT NEW DELHI
Waiver of pre deposit - demand pertaining to outstanding balance regarding Debtors/ Creditors for services provided/received - Held that:- adjudicating authority has not indicated anywhere as to what are the services on which the service tax has not been paid in respect of the amounts shown as debtors and creditors. Prima facie thus it can hardly be anybody s case that all the outstanding amounts regarding Debtors/ Creditors would be liable to service tax when it is not even indicated as to what are the taxable services they relate to. There is no legal basis for presumption to treat such outstanding balances to be relating to taxable services and therefore the contentions mentioned above, while needing to be examined in detail at the time of final hearing, prima facie, have force. Further the amendment to Section 67 ibid relating to associated enterprises was effective prospectively from 10.5.2008 as has been held by CESTAT in the judgement M/s Gecas Services India Pvt. Ltd. (2014 (7) TMI 410 - CESTAT NEW DELHI).
In view of the foregoing and specially the judgment of SAP (India) Private Limited vs. CCE, [2013 (8) TMI 784 - CESTAT BANGALORE] and having regard to fact that the appellants started paying service tax on this transaction under reverse charge mechanisms under Information Technology Software Service w.e.f. 16.5.2008, we are of the view that the appellants have been able to make out a case for waiver of pre-deposit of this component of demand.
As regards the component of the impugned demand pertaining to commercial coaching or training, it is seen that the appellants are engaged in selling the software and as part of the same they provide advice, consultancy and guidance to its customers/ distributors for operation of the softwares. They are also receiving the said assistance from their overseas affiliated companies. They (i.e. the appellants) are not recovering/paying any amount separately for such assistance provided/received and were apportioning a portion of the sale proceeds under this head merely for accounting purposes. - VAT has been paid on the entire value of the software as seen from the purchase orders.
The appellants contend that utilization of infrastructure does not amount to sharing of infrastructure and therefore they would not get hit by sub-clause (Vii) to Section 65(12) of Finance Act 1994. This point certainly needs a detailed examination which can only be taken up at the time of final hearing but it can hardly be denied that the appellants have an arguable case that this is not covered under Banking & Financial Services and therefore it is only fair that they are not required to make the pre-deposit pending appeal. - overall the appellants have made out a case for waiver of pre-deposit and we order accordingly staying recovery of the impugned liabilities during pendency of the appeal. - Stay granted.
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2015 (4) TMI 320 - CESTAT MUMBAI
Demand of service tax - Business Auxiliary Services - Job work - manufacturing of goods were exempted from duty - Held that:- first appellate authority has recorded clearly "besides, appellants are also converting black bars into bright bars by availing Cenvat Credit on the inputs and clearing finished goods on payment of Central Excise Duty. When the process is accepted as a process of manufacture, it is not correct or logical to conclude that the same process when carried on job work basis does not amount to manufacturing" - The submission of the assessee before the first appellate authority has been accepted, as there are not contrary findings and the Revenue's ground of appeal are also not contradicting the said submissions made by the assessee. In the absence of any counter to submissions that the activity undertaken by the appellant/assessee amounts to manufacture and they have discharged the Central Excise duty, the same process if it is undertaken on job work, cannot be held as not manufacturing process.
First appellate authority has rightly relied upon the benefit of Notification No. 202/88-CE dated 20/05/1988 which clearly indicates the exemption to certain final products made from the specific products. It is settled law that an exemption from Central Excise duty can be granted only to manufacturer of products. The benefit of Notification No. 202/88-CE is in respect of items manufactured in job work process by the assessee, in this case, it has correctly been held as manufactured products by the first appellate authority. - first appellate authority are correct and the Revenue's appeal has no merits - Decided against Revenue.
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2015 (4) TMI 290 - MADRAS HIGH COURT
Effect of amendment of Notification - Retrospective or prospective - Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation - Notification No. 25/2012 dated 20.6.2012 as amended by 4/2014-ST dated 17.2.2014 - Exemption in the nature of clarificatory or not - Held that:- services provided by the petitioner, viz., collection of umbilical blood and tissue and preserving in cold storage, has not been included in the "Negative list of service" to claim exemption of service tax. However, according to the petitioner, pursuant to the efforts taken by the petitioner and the Association of Stem Cell Banks of India, the Ministry of Health & Family Welfare, issued a memorandum dated 22.5.2013 to the first respondent recommending that the services rendered by the stem cell banks are part of health care services and based on which, the said mega exemption notification dated 20.6.2012 was subsequently amended by inserting Entry No.2A which read "Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation" and thereby the services of the petitioner are recognized as fallen within the ambit of "health care services" and exempted from the whole of the service tax leviable under Section 66 B of the Finance Act.
If the amendment introduced by Notification No.4/2014-ST, dated 17.2.2014, is declaratory or clarificatory in nature, it is no doubt, it will have retrospective effect and if the amendment is remedial in nature it can have only a prospective effect unless specifically expressed to the contrary. - amendatory statutes, like original statutes, will not be given retroactive construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transactions, in the absence of an expressed intent or an intent clearly implied to the contrary' and that where a statutory provision is in its nature clarificatory, it will be presumed to be retrospective unless the contrary intention is clearly indicated by the Legislature, the reason being that its underlying purpose of explaining or clarifying the existing law will be effectively served only by giving it such a retrospective construction.
So-called amendment, admittedly, has been inserted by way of Entry 2A into the exemption Notification, dated 20.6.2012 by Notification No.4/2014-ST dated 17.2.2014 to the effect that "Services provided by cord blood banks by way of preservation of stem cells or any other service in relation to such preservation". Therefore, the intention of the legislature is clear that bringing the services provided by cord blood banks by way of preservation of stem cells under the exemption Notification in order to give exemption of service tax, however, it has not been specifically mentioned that the said amendment should be with effect from the date of exemption Notification. i.e. 20.6.2012, wherein, originally, Entry No.2 has been inserted, giving exemption towards healthcare services by clinical establishment, an authorised medical practitioner or para-medics. Therefore, by virtue of such amendment, it should be construed that the establishments which provides the above said services will get exemption of service tax with effect from the date of amendment, i.e. 17.2.2014 only and they cannot claim it with retrospective effect. - so-called amendment is only a remedial nature and it can have prospective effect only. If at all the legislature thought it fit to extend exemption with retrospective effect, it would have certainly expressed by mentioning specifically to the effect that the amendment would be with effect from 20.6.2012. Since the amendment having been brought into force from a particular date, i.e. 17.2.2014, no retrospective operation thereof can be contemplated prior thereto.
Supreme Court in WPIL Ltd [2005 (2) TMI 137 - SUPREME COURT OF INDIA], having considered the fact that already, the Government issued Notification dated 1.3.1994, giving exemption from imposing excise duty on parts of power driven pumps used in the factory premises for manufacture of power driven pumps and to clarify the position, the subsequent notification dated 25.4.1994 was issued giving exemption towards the goods that are used within the factory of production in the manufacture, held that the subsequent notification was not a new one granting exemption for the first time in respect of parts of power driven pumps to be used in the factory and therefore, the subsequent notification is clarificatory nature and it has to be given with retrospective effect. - The said judgement is not applicable in the present case and distinguished.
But in the present case, it is not in dispute that the so-called amendment Notification issued by the Government, giving exemption for the first time towards the services provided by cord blood banks by way of preservation of stem cells and hence, it cannot be considered as clarificatory in order to give retrospective effect. - Decided against Petitioner.
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2015 (4) TMI 289 - PUNJAB & HARYANA HIGH COURT
Challenge to the show cause notice - CENVAT Credit - summarization of the credits taken on capital goods - petitioner had not provided any details in respect of the usage of certain goods and also did not supply sample copies of invoices of such goods - Availability of alternate remedy - Held that:- Commissioner has held that the petitioner has suppressed material with an intent to evade payment of duty. The petitioner contends that the fact of having availed of CENVAT duty was disclosed in the returns. It is necessary, however, to see whether the extent of disclosure in the returns was sufficient compliance. It would be necessary to ascertain whether the extent of disclosure would have enabled the assessing authority to determine whether in law the petitioner was entitled to CENVAT credit or not. There are various issues of fact which would be required to be considered. Even assuming that there was a disclosure of the fact of the petitioner having availed the credit, it would be necessary to ascertain whether there were other relevant facts which were necessary to be disclosed and whether the non-disclosure thereof constituted suppression. It is obviously for this reason that the petitioner rightly did not challenge the show cause notice itself at the outset. The petitioner rightly answered the show cause notice by filing a detailed reply therein. Even on merits, the petitioner thereafter appeared before the Commissioner and made detailed submissions. The petitioner filed detailed written submissions in this regard as well. - no reason to interfere at this stage in exercise of our extra-ordinary jurisdiction when the issue can be raised before the appellate Tribunal. It would be appropriate for the petitioner to challenge the order by filing an appeal before the Tribunal. - Decided against assessee.
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2015 (4) TMI 288 - RAJASTHAN HIGH COURT
CENVAT Credit - Commercial training and coaching services - Various other services used to provide facilities to students - Held that:- Appellant is essentially providing commercial training and coaching services to the students. It is not permitted to confer educational degrees on the students. The services of catering, photography and tents are used by the appellant to encourage the successful students in coaching. These services are used only after commercial training or coaching is over. The celebrations are organized by the appellant during the academic sessions to encourage the existing students and motivate new students. In these celebrations, catering, photography and tents are used by the appellant and these celebrations are held only when students pass commercial training or coaching classes. The appellant is paying service tax under the output service of commercial training or coaching. Once the students pass their coaching classes, the activities of catering, photography and tent services cannot be said to have been used to provide output service. Similarly, the appellant maintain and repair its motor vehicle during the course of the business and there is no material to show that maintenance and repairs have any nexus to commercial training or coaching. Likewise, the travelling expenses incurred by the appellant for the business tours cannot be related to provision for commercial training or coaching. - Decided against assessee.
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