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1. CLASSIFICATION OF SERVICE
Business Auxiliary Service
1. It was held that office
space, furniture etc. provided by the assessee to the Bank/Financial
Institution to provide loans to assessee customers, who was engaged in sale
and service of two wheelers, could be brought to tax within the ambit of
Business Auxiliary Services.
CCE, Belgaum vs. Chadha Auto
Agencies 2008 (11) STR 643 (Tri-Bang.)
2. It was held that
generation of MIS report and development of software for such purpose was
covered under Information Technology Software Service and thereby excluded
from the scope of ‘Business Auxiliary Service’.
Dataware Computers vs. CCEC &
ST(A), Guntur 2008 (12) STR 121 (Tri-Bang.)
3. In this case, the
appellant contended that since they were proprietary concern, they should not
be treated as commercial concern for liability under Business Auxiliary
Service. The Tribunal relied on the decision of R. S. Financial Services 2008
(9) STR 231 (Tribunal) wherein it was held that concern in context of business
run by sole proprietor means business of such sole proprietary concern and
activity undertaken was commercial activity, hence liable to service tax.
Anuradha Jain vs. CCE, Bhopal
2008 (12) STR 475 (Tri-Del)
4. It was held that the
impugned activity of the appellant; i.e., epoxy coating on steel bars supplied
by the customers, did not amount to manufacture in appellant’s own case, hence
the same is covered under Business Auxiliary Service.
PSL Corrosion Control
Services Ltd. vs. CCEC, Daman 2008 (12) STR 504 (Tri-Ahmd.)
Banking & Other Financial
Service
5. It was held that
appraisers charges directly collected from borrowers were not liable to
service tax under other financial services under Banking & Other Financial
Services.
Pudukottai District Central
Co-op. Bank Ltd. vs. CCE, Trichy 2008 (12) STR 376 (Tri-Chennai)
6. The notice gave extrusion
machinery on lease under an agreement to a party, which the Revenue held as
banking and financial service and served show cause notices. The Tribunal
relied on the decision in the case of Thermax Ltd. vs. CCE Pune, 2007 (8) STR
487 (Tri. Mum), wherein it was held that the appellant was not a professional
in leasing business, and the activity was confined to own products and
considering ‘interest on loan’ not forming part of value of taxable service in
view of Explanation 1 to S. 67 of the Finance Act, 1994, the demand was held
unsustainable.
CCE Vadodara I vs. M/s. GE
India Industries (P) Ltd., 2008 TIOL 1444 CESTAT-Ahm.
Cargo Handling Services
7. The appellant in this case
was engaged in the business of transportation of cargo from one place to
another. The department sought to tax them under Cargo Handling Service. The
Tribunal held that appellant neither collected cargo from the consignors’
premises nor delivered the same to the consignee of the cargo. Further,
providing facilities of packing/unpacking, loading/unloading of goods to the
customers for promotion of business, if covered under Cargo Handling Services,
then the new services of transportation of goods by air or road will become
redundant as transport of goods could not be envisaged without
loading/unloading.
Jet Airways (India) Ltd. vs.
CST, Ahmedabad 2008 (11) STR 645 (Tri-Ahmd.)
8. The assessee was engaged
in providing services of shifting/transportation of raw materials, waste
materials and finished products from one place to another inside the
customer’s plant. The Tribunal held that scope of activity carried out by the
appellant inside plant does not call for taxation under the head ‘Cargo
Handling Services’.
Modi Constructions Co. vs.
CCE, Ranchi 2008 (12) STR 8 (Tri-Kolkata)
Clearing and Forwarding
9. The appellant was a
licence holder authorized by Spices Board to auction cardamom brought by
various owners and received commission of 1% of total sales value for carrying
out such activity. The Tribunal held that impugned activity was not liable to
service tax under Clearing and Forwarding Agent service.
CCE, Kochi vs. Indian
Cardamom Marketing Company (P) Ltd. 2008 (11) STR 522 (Tri-Bang.)
10. The appellant was engaged
in storing the goods viz. crude oil received on behalf of ONGC and then
through pipelines transferred it to the ONGC. The Tribunal held that relation
between appellant and ONGC was of principal to principal basis and not of
principal and agent. The appellant had not played any role in delivering the
goods to consignee and hence, service provided by the appellant was not liable
to service tax under Clearing and Forwarding Agent’s Service. It was further
held that, extended period was not invocable for issuing second show cause
notice, once the first show cause notice was issued and the department was
aware of the affairs of the assessee.
Cairn Energy (I) Pvt. Ltd.
vs. CCCE, Visakhapatnam-II 2008 (11) STR 632 (Tri-Bang.)
Erection, Commissioning
and Installation Service
11. The appellant had
undertaken construction of pipeline for supply of water. The department sought
to tax them under Erection, Commissioning or Installation Service. The
Tribunal on the facts of the case held that erection was not involved in
digging of earth and laying long distance pipeline. Pipeline was not covered
under the expression ‘plant’. Water supply project being infrastructure
facility and civic amenity provided by State in public interest was not an
activity of commerce or industry. Laying of pipeline was not covered under
Erection, Commissioning or Installation Service.
Indian Hume Pipe Co. Ltd. vs.
CCE, Trichy 2008 (12) STR 363 (Tri-Chennai)
Management Consultancy
12. It was held that services
provided to licensees to develop suitable organization for identifying
business opportunities, professional expertise, technological, industrial and
engineering information in the areas including financial, taxation etc. to
develop cadre of managers and suitable infrastructure for IPR protection were
covered under Management Consultants Service.
RPG Enterprises Ltd. vs. CCE,
Mumbai-IV 2008 (11) STR 488 (Tri-Mumbai)
13. The functions carried out
by the assessee like inviting purchase orders, calling tenders, issuing
appointment orders, maintaining leave records and maintaining books of account
of sister concerns regarding which, payments had been received from sister
concern was not liable to service tax under Management Consultancy Services.
CST, Faridabad vs. Goetz
(India) Limited 2008 (11) STR 629 (Tri-Del.)
Port Services
14. The Tribunal held that
income received as rent charges by assessee for hiring out the barges,
floating cranes and tugging facilities would not be liable to service tax
under Port Services.
Vikram Ispat vs. CCE, Raigad
2008 (11) STR 639 (Tri-Mumbai)
Rent-a-Cab Operators
Service
15. The Tribunal observed
that to rent was allowing use of something one owns in exchange for payment.
On the facts of the case it had been held that, cab operator providing cab
with driver for going from one place to another on per kilometre basis or on
lump sum amounts based on distance was providing transport service, wherein
control of vehicle remains with cab operator/driver and therefore such service
was outside the purview of Rent-a-cab Operators Service.
R. S. Travels vs. CCE, Meerut
2008 (12) STR 27 (Tri-Del)
Scientific & Technical
Services
16. The Tribunal held that,
services in respect of projects pertaining to optimizing efficiency and output
of industry or organization falls under the discipline of industrial
engineering and such service was covered under Scientific and Technical
Consultancy Service and not under Management Consultants Service.
National Productivity Council
vs. CCE, Chandigarh 2008 (12) STR 491 (Tri-Del)
Telecommunication Services
17. The Tribunal held that
Interconnectivity Usage Charges (IUC) was not liable to service tax during the
period prior to amendment of statutory definition when ‘telecommunication
service’ came into effect in 2007. It was further held that CBEC circular
dated 12-3-2007 was applicable during the impugned period.
Bharat Sanchar Nigam Ltd. vs.
CCE, Meerut 2008 (11) STR 460 (Tri-Del.)
Tour Operators
18. The appellant a tour
operator provided supplementary services such as arranging guide, monument
visits, food, general assistance etc., in relation to tours. The Tribunal held
that taxable service in relation to tour operator was defined as “any service
provided by tour operator in relation to a tour” and the expression “in
relation to tour” was very wide and covers allied services even for the period
prior to 10-9-2004.
Touraids (I) Travel Services
vs. CCE, Kanpur 2008 (12) STR 452 (Tri-Del)
Works Contract
19. In K. Raheja Development
Corporation vs. State of Karnataka 2006 (3) STR 337 (SC), it has been held
that construction and sale of individual flats was in the nature of works
contract and thus liable to sales tax. The Supreme Court observed that prima
facie the proposition laid down by the Supreme Court in K. Raheja’s case was
difficult to accept. There would not be any difference between works contract
and contract for sale of chattel if ratio of said decision was accepted. The
contention of revenue that Development Agreement was not a works contract but
Tripartite Agreement was works contract was prima facie fallacious. Therefore,
it was decided to refer the judgment in K. Raheja to Larger Bench for
reconsideration.
Larsen & Toubro Ltd. 2008
(12) STR 257 (SC)
2. VALUATION
20. The Tribunal held that
service tax was not leviable on SIM card value as such cards were subjected to
custom duty on import and recognized as goods by the department. Relying on
decision in RPG Cellular Service Ltd., 2008 (10) STR 298 (Tri) it was held
that, since the SIM cards were imported on payment of customs duty and sales
tax was also paid on sale of SIM card, value of SIM card was not includible in
taxable value for levying service tax.
Hutchison Max Telecom Pvt.
Ltd. vs. CCE, Mumbai 2008 (12) STR 373 (Tri-Del.)
3. CENVAT CREDIT
21. The Tribunal held that,
CENVAT credit could not be denied merely on the ground that invoices were not
authenticated, if other particulars were available in the invoices and
verified by the lower authorities.
GAIL (India) Ltd. vs. CCE,
Indore (11) STR 538 (Tri-Del.)
22. In this case the Tribunal
held that, merely because Tribunal’s decision in other case granting credit of
Service tax paid in respect of mobile phone services had been appealed
against, credit is not deniable.
CCE, Bhavnagar vs. Saurashtra
Chemicals Ltd. 2008 (12) STR 67 (Tri-Ahmd.)
23. In this case the Hon’ble
Gujarat High Court held that interest was not to be levied on amount of credit
directed to be reversed, when such credit was not availed by assessee but
lying unutilized. No substantial question of law arises for consideration of
High Court as there being no infirmity in order of Tribunal.
CCE vs. Gupta Steels 2008
(12) STR 101 (Guj.)
24. In this case, appellant
availed CENVAT credit on certain invoice/duty paying documents, which were not
containing Central Excise registration number of original manufacturer. The
Tribunal after relying on Circular No. 441/7/99 dated 23-2-1999 and on
decision in Kamakhya Steels Pvt. Ltd. 2000 (121) ELT 247 (T-LB), held that
receipt and consumption of inputs in factory premises were not in dispute and
discharge of duty liability was also not in dispute hence, Modvat credit not
to be denied.
Agarwal Industries vs. CCE,
Kanpur 2008 (12) STR 223 (Tri-Del.)
25. The Commissioner
(Appeals) in this case held as under:
• Expressions used in Rule 6
of CCR, 2004 were ‘used in manufacture of exempted goods or exempted
services’. Trading activity cannot be equitable with exempted goods or
exempted services. Hence, reversal of credit to the extent used for trading
goods, working out on the basis of ratio between manufacturing and trading
turnover as sought by Revenue was not sustainable.
• Since reversal was not
warranted, imposition of penalty was also not sustainable.
In Re: Faber Heatkraft
Industries Limited 2008 (12) STR 252 (Commr. Appl.)
26. In this case AAR inter
alia held that, extended definition of input service includes services used
for setting up buildings used to house factories and its offices. Provision of
buildings for housing, schooling, recreation, etc. for workers was welfare
measure had no nexus with manufacture, storage or sale; hence construction of
quarters for workers was not an input service under rule 2(1) of
CCR, 2004.
It is further held that,
construction and other allied services used for setting up of a factory, have
been specifically included, though the use of these services in the setting up
of the factory precedes manufacture and the activity was concluded prior to
commencement of the manufacturing process. Again, auditing of accounts
relating to a final product had been considered to be an ‘input service’
though this service was used after the completion of manufacture of final
product and could not have been used directly or indirectly in the
manufacturing process. Both the services however had a nexus with and were
related to final product. A perusal of other services in the inclusive part of
this definition indicated that use of each of these services was linked to
manufacture, storage, transport or sale of the final product.
In Re: VMT Spinning Co. Ltd.
2008 (12) STR 388 (AAR)
27. The appellant utilized
Cenvat Credit for payment of service tax on goods transport agents service and
business auxiliary services received from abroad, which were received
subsequently. The revenue authorities objected to such adjustment. The
Tribunal observed that there were contrary orders on the issue and therefore
referred the matter to Large Bench.
Panchmahal Steel Ltd. vs.
CCEC, Vadodara-II 2008 (12) STR 447 (Tri-Ahmd.)
28. The Larger Bench of
Tribunal held that outdoor caterer providing catering service is input service
relating to business and Cenvat Credit is admissible.
CCE, Mumbai-V vs. GTC
Industries Ltd. 2008 (12) STR 468 (LB)
29. The Tribunal held that
service tax paid on Pandal or Shamiana service and Photography service
incurred in respect of holding Kannada Rajyostava function and inaugural
function of police station was not entitled for Cenvat credit as the said
expenses were not covered under ‘activities relating to business’ as they do
not keep company with other terms used in the inclusive definition of input
service. However, demand was set aside on the point of limitation.
Toyoto Kirloskar Motor P.
Ltd. vs. CCE, (LTU), Bengaluru 2008 (12) STR 498 (Tri-Bang.)
30. The Tribunal found that
there existed an agreement between the parties, which even the lower Appellate
Authority had taken note of and irrespective of the same, it was ruled that
once Service Tax has been paid by the supplier, the same cannot be questioned
at the receiver’s end and accordingly, credit could not be denied. Credit for
the period prior to 10-9-2004 (the date on which the Cenvat Credit Rules were
prescribed) also was held allowable as the ground was the same and in terms of
existence of the Service Tax Credit Rules, 2002, credit could not be denied.
Maersk India Pvt. Ltd. vs.
CCE Raigad, 2008 TIOL 1477 CESTAT-MUM
31. The appellant, after
taking registration as recipient of consulting engineer’s service paid Service
Tax net of abatement for R & D cess on the sum paid by them to foreign
parties. The foreign party however had transferred merely the technology. It
was held that the date on which the registration for providing output service
was sought was not relevant and that Service Tax paid as deemed output service
provider was eligible for taking credit of. Further, Service Tax on transfer
of technology under ‘Consulting Engineering Service’ was wrongly paid by the
appellant at the instance of the department and therefore credit could not be
denied. The Tribunal also stated that there was no time limit prescribed for
utilization of credit and therefore Service Tax paid on deemed output service
was available as credit.
Jindal Steel & Power Ltd. vs.
CCE, Raipur, 2008 TIOL 1450 CESTAT-Del.
32. While exporting goods,
the appellant utilised services of CHA and surveyors. The Revenue treated them
as non-eligible being of post-manufacturing activity and post-clearance of
goods. Considering the Board’s Circular No. 91/8/2007 and the definition of
‘input services’ (which the Revenue had not considered), it was held that
exporter remained owner of the goods until export took place and place of
removal was port area. Further, the services were clearly related to business
activity and therefore the Revenue’s appeal was rejected.
CCE Rajkot vs. Rolex Rings
(P) Ltd., (2008) 16 STT (Ahd.-CESTAT)
33. For Consulting Engineer’s
Services received from abroad, the assessee got registered this category and
paid service tax from Cenvat account. Later they also registered as output
service provider of consulting engineer’s services. However, the services
availed from foreign company related to transfer of technology. The assessee
however, took credit for the service tax paid as receiver. The Tribunal
observed that had the service tax been paid by actual service provider, the
assessee would have been entitled to credit. Merely because tax was paid as
receiver of service, its right as recipient could not be denied. Further, at
the relevant time, in terms of Rule 2(p) of the Cenvat Credit Rules, service
tax was paid as deemed output service provider. Also, there is no time limit
prescribed for utilisation of credit. Therefore, the date on which output
service registration was taken is not at all relevant. Utilisation of credit
was permissible in view of the extended definition of ‘output services’.
Jindal Steel & Power Ltd. vs.
CCE Raipur, 2008 16 STT (N. D. – CESTAT)
34. The short issue involved
in the appeal was whether input duty credit can be utilized for payment of
Service Tax on GTA services for the period October 2005 to March 2006. Since
by an earlier order the appellant was already given a decision in their favour
(covered under MMS Steel Ltd. & Others vs. CCE Trichy, 2007 TIOL 1317 CESTAT-Mad.)
and identical decision was also given in the case of RRD Tex Pvt Ltd vs. CCE
Salem 2007 TIOL 891 CESTAT-Mad, the order of the lower authority was set aside
after condoning the delay in filing the appeal.
M/s. Sri Sarvana Spg. Mills
P. Ltd. vs. CCE Madurai, 2008 TIOL 1429 CESTAT-Mad.
4. PENALTY
35. The Adjudicating
authority invoking provisions of section 80 imposed nominal penalties under
sections 75A, 76, 77 and 78. Thereafter, Commissioner in revision enhanced
penalties. The Tribunal held that no ground had been adduced and no evidence
relied upon to come to conclusion different from one taken by original
authority hence leniency shown by Adjudicating authority was reasonable and
order of adjudicating authority to be restored.
Darmanian Enterprises vs. CCE,
Jalandhar 2008 (11) STR 463 (Tri-Del.)
36. The Tribunal held that
section 73(3) and CBEC circular provides that no penalty was imposable, if
assessee paid tax due along with interest on his own and even on insistence of
department. It was held that revisionary order enhancing penalty was not
sustainable.
Tidewater Shipping Private
Limited vs. CST, Bengaluru 2008 (11) STR 475 (Tri-Bang.)
37. The Tribunal held that
once the opportunity of filing cross objection was not availed by assessee on
appeal filed by department, then at a later stage, assessee was not allowed to
raise fresh grounds; and since the duty had been paid before issuance of show
cause notice, department’s plea to enhance the penalty imposed was rejected.
CCE, Nashik vs. Delta
Elastometal Compound Pvt. Ltd. 2008 (11) STR 534 (Tri-Mumbai)
38. The Tribunal in this case
held that where there was genuine doubt and the Board issued clarification, no
mala fide could be attributed. In such cases, waiver of penalty under section
80 was justified. In terms of the Explanation below 73(1), even in cases of
suppression, if an assessee paid the service tax along with interest and
penalty equal to 25% of service tax, the proceedings were closed. In such
circumstances, there was no justification for imposing a penalty of Rs. 10
lakhs for short payment of Rs. 6,68,945.
Majestic Mobikes Pvt. Ltd.
vs. CST, Bengaluru 2008 (11) STR 609 (Tri – Bang.)
39. The Tribunal observed
that Government was adopting tax payer friendly approach and plea of bona fide
to be taken into account. In such circumstances, the Tribunal set aside the
penalty under sections 76 and 77.
BP Mobiles vs. CCE (A),
Mangalore 2008 (12) STR 274 (Tri-Bang.)
40. In this case, appellant a
proprietorship firm acting as agent in loading and unloading of cargo, paid
tax belatedly on the belief that they were not liable to pay service tax. The
Tribunal held that since the delay in making payment was due to statutory
interpretation and in fact they have paid service tax before issue of SCN,
penalty was not warranted.
Jagdeep Singh Saluja vs. CCE,
Bhopal 2008 (12) STR 309 (Tri-Del.)
41. The Tribunal held that
penalty was to be limited to 25% of service tax amount under section 78 of FA,
1994 in terms of CBEC Letter F. No. 137/67/2006-CX.4 dated 3-10-2007 and no
penalty was to be imposed under any other sections. It was further held that,
interest was payable even when the short paid amount was paid before issue of
SCN.
AK & I Advertising Private
Limited vs. CCE (Appeals-II), Bengaluru 2008 (12) STR 315
(Tri-Bang.)
42. The Tribunal in this case
held that since the Amnesty scheme was extended up to 30-11-2004 and assessee
applied for registration on 30-11-2004 and deposited the amount under dispute
on the same day, penalty was not impossible.
CCE, Chandigarh vs. Amson
Transformers 2008 (12) STR 340 (Tri-Del.)
5. OTHERS
Certificate of
Registration
43. The petitioner engaged in
the business of leasing operation and supervision work for supply of coal to
power plants applied for registration under business auxiliary service. The
Department did not reject the application. There was a provision for deemed
registration if not granted within 7 days. After 22 months, the Department on
its own registered the firm under clearing and forwarding service. The Court
ruled that certificate granted could not remain in operation until the
Commissioner, Service Tax, gives reasoned decision after hearing the
petitioner and until then, the petitioner would continue to pay service tax
under business auxiliary service. However, the Court stated that it had not
made any observation on merits which the Commissioner, Service Tax, had to
adjudicate.
Karamchand Thaper & Bros.
(Coal Sales) Ltd. vs. UOI, 2008 (11) STR 459 (Cal.)
Circulars
44. The Supreme Court held
that Circulars and instructions issued by CBEC are binding on authorities
under respective statute. The Court had to declare what particular provision
of statute says and the Executive Circular contrary to the statutory
provisions had not existence in law. The assessee’s contention that revenue
authorities cannot take advantage of Supreme Court decision and file appeal
taking position contrary to CBEC circular was not acceptable as that would
indicate that the valuable right of challenge would be denied and there would
be no scope for filing an appeal by revenue authorities.
CCE, Bolpur vs. Ratan Melting
& Wire Industries 2008 (12) STR 416 (SC)
Refund
45. In this case the Tribunal
held that interest was grantable if the Tribunal’s order granting the refund
had not be stayed by the High Court. It further held that issuing a show cause
notice for recovery of refund already granted on the ground that order
granting refund had been challenged in the High Court amounted to contempt of
the Tribunal. Thus, department was directed to pay interest within a week.
Toyota Kirloskar Motors Ltd.
vs. CCE, Aurangabad 2008 (11) STR 551 (Tri-Bang.)
46. The Tribunal held that
letter issued by the department was decision and was appealable. The
Commissioner (Appeals) was not correct in holding that letter rejecting refund
was not an appealable order.
Indian Aluminium Co. Ltd. vs.
CCE (Appeals), Kochi 2008 (12) STR 533 (Tri-Bang)
Show Cause Notice
47. In this case single
appeal was filed against compendious order disposing of two show cause
notices. The Tribunal held that single appeal filed against a compendious
order could be held to be irregular only for reason that impugned order had
dealt with more than one Show Cause Notices.
Escorts Ltd. vs. CCE,
Faridabad 2008 (11) STR 532 (Tri-Del.)
48. In this case, appellants
were neither made party in the show cause notice nor any corrigendum was
issued subsequently to make them party in the SCN. The Commissioner, when
adjudicated the case in second de novo proceedings, chose to cast duty
liability on the appellant. The Tribunal held that, impugned order was beyond
the scope of show cause notice, therefore not sustainable.
Gopal Repackers vs. CCE,
Coimbatore 2008 (11) STR 534 (Tri-Mumbai)
49. In this case Supreme
Court held that liability to file return on recipient of Goods Transport
Operator was cast only under section 71A, which was introduced in Finance Act,
2003. It was further held that, Show Cause Notice to assessee under section 73
takes in only case of assessee who was liable to file return under section 70
and class of persons who come under section 71A not brought under net of
section 73.
CCE, Vadodara-I vs. Gujarat
Carbon & Industries 2008 (12) STR 3 (SC)
50. The Tribunal in this case
held that section 11B(2) of CEA, 1944 did not require issuance of show cause
notice for rejecting refund claim as a mandatory rule.
Omega Bright Steel Pvt. Ltd.
vs. CCE, Faridabad 2008 (12) STR 102 (Tri-Del)
51. The appellant in this
case voluntarily without protest deposited service tax in 2004 for the period
September 2000 to March 2003. The SCN was issued to appropriate the amount
deposited by the appellant. The department subsequently issued corrigendum
alleging suppression of facts to invoke extended period of limitation. The
Tribunal held that, proposal in corrigendum for invocation of extended time
limit was ineffective as notice meant for appropriation of amount paid.
JSP Security vs. CCE, Jaipur-I
2008 (12) STR 290 (Tri-Del.)
Others
52. The payment of tax made
by the appellant to the Government as recipient of service did not imply that
it was paid on behalf of the contractor. The contractor being service provider
was not liable to make payment of Service Tax. The Court considered the
arbitration award as faulty, considering it as opposed to the scheme of
Service Tax, which levies tax on services and not on service provider.
Rashtirya Ispat Nigam Ltd.
vs. Dewanchand Ramsaran, 2008 (11) STR 453 (Bom.)
53. The Commissioner
(Appeals) held that composition scheme could be opted prior to payment of
service tax and the same was applicable for entire contract. Part of the
service was already rendered and service tax was already paid thereon under
construction service. Composition scheme under Works Contract service was not
available to such ongoing contracts.
In Re: M. B. Chitale
Constructions 2008 (11) STR 573 (Commr. Appl)
54. In this case, the Hon’ble
Bombay High Court has held that section 35 of CEA, 1944 expressly provided a
ceiling on powers of Commissioner (Appeals) even on production of proof of
sufficient cause. In view of that, general provision of section 5 of
Limitation Act, 1963 should be deemed to be excluded and not applicable.
Appeal preferred beyond 30 days of expiry of statutory period of 60 days held
to be time barred.
Navinon Ltd. vs. Union of
India 2008 (12) STR 84 (Bom.)
55. In this case, the Tribunal held that in case of hire purchase contracts
entered prior to the date of enhancement of rate of service tax, the
applicable rate of tax would be the rate prevailing on the date on which the
contract was entered into with the customer.
LFC Hire Purchase Company
Ltd. vs. CCCE (Appeals), Kochi 2008 (12) STR 320 (Tri-Bang.)
6. WAIVER OF DEPOSIT
Pre-deposit
56. The Hon’ble Supreme Court
in this case held that petition for stay should not be disposed of in routine
manner unmindful of consequences flowing from order requiring deposit of full
or part of demand. Where denial of interim relief may lead to public mischief,
grave irreparable private injury or shake citizen’s faith in the impartiality
of public administration, interim relief can be given. It further held that
for a hardship to be undue, it must be shown that the particular burden to be
observed or performance of requirement is out of proportion to nature of
requirement itself and benefit which applicant would derive from compliance
with it. The word ‘undue’ adds something more than just hardship. It means
excessive hardship or a hardship greater than circumstances warrant.
Benara Valves Ltd. vs. CCE,
2008 (12) STR 104(SC)
57. The appellants,
registered under ‘Management Consultancy Services’ and ‘Maintenance and Repair
Services’, filed their returns and paid Service Tax. The Tribunal observed
that order of the Commissioner (Appeals) was non-speaking on various case laws
relied upon by the appellant. Further, the facts of appellants’ filing of
return and checking and scrutinizing of records, etc., by the Department could
not be prima facie considered ‘suppression’ in the light of various Supreme
Court decisions cited by the appellants, waiver of pre-deposit was granted.
Rolex Logistics Pvt. Ltd. v.
Commissioner, Service Tax, Bengaluru, 2008 (11) STR 394 (Tri-Bang)
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