TMI Blog2019 (10) TMI 1110X X X X Extracts X X X X X X X X Extracts X X X X ..... of their actual operations - period of 2005-06 - HELD THAT:- The appellant has already disclosed and debited the amount inadmissible to them, and for the balance amount, the appellants have relied on the decisions of M/S VAMONA DEVELOPERS PVT LTD VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, PUNE-III [ 2015 (12) TMI 1111 - CESTAT MUMBAI] , M/S. BEICO INDUSTRIES PVT. LTD. AND SHRI SHANKARANAND SUDHAKAR PATHAK VERSUS CCE. ST. - VAPI [ 2014 (8) TMI 14 - CESTAT AHMEDABAD] , M/S LARSEN TOUBRO LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI [ 2017 (5) TMI 390 - CESTAT MUMBAI] and CITY CENTRE MALL NASHIK PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, NASHIK [ 2017 (11) TMI 301 - CESTAT MUMBAI] . Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are providing a single service to the passengers. The passengers were allowed to carrying certain quantity of luggage along with them and in respect of the said service no service tax was levied at the material time. The appellants were charging extra charges in case the weight of the luggage of passengers exceeded the certain limits Revenue is seeking to demand of service tax under the head of transportation of by air service on such charges. He pointed out that the issue has been squarely covered by the decision of Tribunal in case of Kingfisher Airlines Ltd Vs. CST-2015 (40) S.t.R. 1159 (Tri.- Mum.) and the same has been approved by the Hon ble Apex Court reported in 2017 (48) S.T.R. J42 (S.C). 3. The second i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a clause by virtue of which the appellant were required for reimbursed to the service provider a certain insurance charges for pilots. He pointed out that the issue is squarely covered by the Hon ble Delhi High Court in the case of Intercontinental Consultants Technocrats Pvt. Ltd. vs. UOI-2013 (29) S.T.R. 9 (Del.). He pointed out that rule 5 of the service tax (Determination of Value) Rules, 2006 has been invoked to confirm their demand, he pointed out that the Hon ble Delhi High Court in the case of Intercontinental Consultants Technocrats Pvt Ltd. (Supra) has declared the said rule unconstitutional. 5. Ld. Counsel further pointed out that the extended period of limitation has been invoked and part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 9. In case of Beico Industries Pvt Ltd (Supra), the Tribunal has observed para 9 10 as follows : 9.While trying to deny the Cenvat credit to the appellant on this ground, we find that the adjudicating authority has taken a diagonally opposite direction, as against the principles of the reducing the cascading effect of taxes. It is a common sense that unless a factory is setup, trial runs are taken, an assessee will be unable to manufacture excisable products. The entire exercise of the assessee for setting up of factory is for manufacturing excisable goods which can be done so only when he erects, installs and commissions the capital goods with the help of various agencies. In the case in hand, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a taxable service. However, the assessee had paid input tax on various services. According to the assessee a sum of ₹ 4,36,985/- is accumulated Cenvat credit. The Tribunal has categorically held that even though the export of software is not a taxable service but still the assessee cannot be denied the cenvat credit. The assessee is entitled to the refund of Cenvat credi. Similarly insofar as refund of Cenvat credit is concerned, the limitation under Section 11B does not apply for refund a accumulated Cenvat credit. Therefore, bar of limitation cannot be a ground to refuse Cenvat credit to the assessee. 7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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