A] CLASSIFICATION OF SERVICE

Architect Services:

1. The appellant received architect services from abroad during the period 1-1-2005 to 15-6-2005. The High Court held that, Tribunal misdirected itself in holding that appellant was liable to pay service tax for the impugned period. The issue being settled by Bombay High Court in lNSA vs. UOI 2009 (13) ST R 235 (Bom.), the question of law was answered in favour of the appellant.

Unitech Ltd. vs. CST, Delhi 2009 (15) STR 385 (Del.)

BUSINESS AUXILIARY SERVICE:

2. The Supreme Court in this case held that: (a) Explanation appended to sub-clause (ii) of section 65(19) of FA, 1994 was not a simple clarification as it introduced new concept of organizing lottery as form of entertainment, having constitutional implications. The Parliament was entitled to bring new concept of imposition of tax and also entitled to raise legal fiction but explanation in question was widening tax net and hence, not retrospective in operation. The impugned explanation was not clarificatory or declaratory in nature. Service tax, if any payable under Business Auxiliary service w.e.f. May 2008 only in view of explanation and not for a period prior to that date, though the explanation began with expression “For removal of doubts”; (b) Whether a subordinate legislation or a Parliamentary Statute is clarificatory or declaratory or not depends on nature thereof and object it seeks to achieve. If two views are possible, then resort to clarification and/or declaration may not be permissible. Substantive law may be introduced by a reason of explanation; however same will not have retrospective effect.

UOI vs. Martin Lottery Agencies Ltd. 2009 (14) STR 593 (SC)

3. The appellant had undertaken powder coating, bending and drilling of components and machinery parts during the period prior to 16-6-2005. The Tribunal held that, activities could not be said to be undertaken on behalf of any other person and they were carried out by the appellant themselves for consideration. Since activities undertaken by person for another brought under Business Auxiliary Service w.e.f. 16-6-2005, liability of service tax for prior period is absent.

Auto Coats vs. CCE (ST), Coimbatore 2009 (15) STR 398 (Tri-Chennai)

BANKING & OTHER FINANCIAL SERVICES:

4. The Tribunal held that, cash management service was taxable under Banking and other financial services from June, 2007 only. The intention of the Government was not to subject such activity to service tax, when excluded from the scope of banking service. The classification and demand under Business Auxiliary Service was not sustainable.

Federal Bank Ltd. vs. CCE. C&ST (Appeals) Kochi 2009 (15) STR 279 (Tri-Bang)

BUSINESS SUPPORT SERVICES:

5. The appellant was engaged in identification of vendors for procurement of garments and co-ordination with vendors for supply to party located abroad. The Tribunal inter alia held that, services of evaluation of prospective customers, processing of purchase orders, customer management, processing of transactions, information and tracking of delivery schedules, operation assistance for marketing and managing distributions conforms to the definition of Business Support service and cannot be classified under Business Auxiliary service.

Fifth Avenue vs. CST, Chennai 2009 (15) STR 387 (Tri-Chennai)

CARGO HANDLING SERVICES:

6. The Tribunal held that, activity of loading and transportation of limestone and rejects from mine head to crushing premises had been undertaken in mining area and covered by Mines Act, 1952 and hence, covered under Mining of mineral, oil, gas service. Transport of limestone and rejects within mining area could not be treatable as cargo to be covered under Cargo Handling service.

Triveni Earthmovers Pvt. Ltd. vs. CCE, Salem 2009 (15) STR 393 (Tri-Chennai)

7. The appellant carried out stripping of steel items as part of manufacturing process and paid excise duty on value include packaging. The Tribunal held that, service tax was not leviable once excise duty was paid and transportation was necessary for coverage under Cargo handling service. Packaging activity came under service tax net w.e.f. 16-6-2005 and was not taxable under any other categories before such date.

ITW India Ltd. vs.CCE, Hyderabad 2009 (14) STR 826 (Tri-Bang.)

CLEARING AND FORWARDING:

8. The High Court held that the department had not shown any trade practice to infer that service of one kind rendered to be considered as comprising both clearing and forwarding. The Tribunal Larger Bench decision in Medpro Pharma Pvt. Ltd. 2006 (3) STR 355 was overruled. The word ‘and’ used after the word ‘clearing’ but before the word ‘forwarding’ in the definition was used in conjunctive sense. The Legislative intention was to cover a person rendering clearing and forwarding service. If word ‘and’ is read as ‘or’ then it would amount to doing violence to the simple language used by Legislature, which could be imputed ignorance of English language; Also, Circulars issued by CBEC were binding on the department and were meant for adoption for bringing uniformity in administration of law.

CCE, Panchkula vs. Kulcip Medicines (P) Ltd. 2009 (14) STR 608 (P&H)

COMMERCIAL OR INDUSTRIAL CONSTRUCTION SERVICES

9. The Commissioner (A) held that, both construction and repair activities in respect of roads were excluded from Commercial or Industrial construction service and though the repair of road might fall under Maintenance service but specific exclusion under Construction service prevails. Hence, road repair was not liable to service tax.

In Re: G. R. Constructions 2009 (15) STR 133 (Commr. Appln.)

CONSULTING ENGINEERING SERVICES

10. The Hon’ble High Court held that, contract of manufacture, installation and commissioning of transformers was divisible one for manufacture and for rendering service of installation and commissioning. Design and engineering services provided were covered under Consulting Engineers service and excise duty was not payable on charges leviable to service tax.

Transformers & Electricals Kerala vs. CCE 2009 (14) STR 737 (Ker.)

11. The department raised demand on Architect under Consulting Engineer service for valuation of property. The Tribunal held that, service provided by professionally qualified engineer alone is covered and in this case assessee is an architect and not qualified engineer, hence, service tax is not payable on acceptance of consultancy given by non-qualified engineer.

CCE, Vadodara vs. Sthapatya Rachana 2009 (15) STR 438 (Tri-Ahmd.) 2009 (15) STR 438 (Tri-Ahmd.)

12. The appellant, a foreign company entered into agreement for setting up joint venture in India. Under the agreement they were obliged to join Venture Company to grant its rights to technology for common benefit. The Tribunal observed that, primary objective to be sharing of know-how to participate in joint venture and there was nothing to show that foreign company would leave India after rendering such service without participating in joint venture. It is held that, sharing of knowledge not to be called as Consulting Engineers service, when expertise acquired was also used for own benefit.

Nyco S.A. vs. CST, Delhi 2009 (15) STR 470 (Tri-Del.)

GOODS TRANSPORT AGENT SERVICES:

13. The Commissioner (A) provided benefit of exemption under Notification No. 32/2004-ST holding that declaration by GTA on letterhead is sufficient. The Tribunal held that, declaration in invoice was only procedural requirement and conditions of notifications have been substantially complied with.

CCE, Vapi vs. Unimark Remedies Ltd. 2009 (15) STR 254 (Tri-Ahmd.)

14. The Tribunal in this case held that in GTA service, transport booking agents alone were covered and service tax paid for engaging services of individual truck operators was liable to be refunded.

CCE&C, Guntur, vs. Kanaka Durga Agro Oil Products Pvt. Ltd. 2009 (15) STR 399 (Tri-Bang.)

PACKAGING ACTIVITY SERVICES:

15. The Hon’ble High Court held that manufacturing process not necessarily includes excisable goods, but also includes process incidental or ancillary to completion of manufactured products. Bottling of liquor was part of manufacturing process and hence packaging and bottling of liquor being covered under manufacture, not liable to service tax under Packaging service. Dissection of tender conditions, invoices and pricing by Division Bench in Vindhyachal Distilleries Put. Ltd. 2006 (3 STR 723 (MP) was not correct and hence overruled. Section 65(76b) of FA, 1994 on packaging activity uses words ‘does not include’ and such definition having inclusive as well as exclusive facts. Definition was not to be read in isolation but to be read in the context of phrase, which it defines. Definition of packaging activity was not to be read in composite and cumulative manner as each clause was independent because of language employed.

Maa Sharda Wine Traders vs. UOI 2009 (15) STR 3 (MP)

16. The Court, overruling the decision of the Division Bench in M/s. Vindyanchal Distilleries Pvt. Ltd. vs. State of M.P. and Anr. (2007) 7 VST 197 (MP) held that the process of bottling could not be regarded as independent (as in M/s. Vindyanchal Distilleries), especially in view of the statutory requirement that liquor must be sold in sealed bottles. Therefore, packaging and bottling of liquor was a part of the manufacturing process and because it falls within the ambit of clause (f) of S. 2 of the Central Excise Act, 1944, it was excluded from service tax liability in view of the exclusionary facet of the definition contained in S. 65(76b) of the Finance Act, 1994.

SOM Distillers Pvt. Ltd. & Ors. vs. UOI & Ors. 2009-TIOL-292-HC-MP-ST-LB

PHOTOGRAPHY SERVICES:

17. The Tribunal relying on its earlier decisions held that, value of materials supplied during photography services was not includible in the value of taxable service for levying service tax.

CCEC & ST (A), Guntur vs. P. V.Narayana Reddy 2009 (14) STR 701 (Tri-Bang.)

18. The Hon’ble High Court held that, work of photographer also involved developing of negatives and printing them. Part of work done by photographer and part assigned to others like colour lab. Colour Labs were covered under the Photography studio or agency service and liable to service tax.

Colorway Photo Lab vs. UOI 2009 (15) STR 17 (MP)

TECHNICAL CONSULTANCY SERVICE:

19. The Tribunal held that, the appellant was not liable to pay service tax in respect of Technical consultancy received from outside India during the period prior to 31-12-2004 under reverse charge mechanism.

Bharti Hexacom Ltd. vs. CCCE, Jaipur 2009 (15) STR 218 (Tri-Del.)

TECHNICAL TESTING AND ANALYSIS SERVICES:

20. The appellant provided technical testing and analysis of IT software. The Tribunal held that, testing and analysis of IT software was specifically included under Technical testing and analysis services only w.e.f. 16-5-2008 and dispute was for prior period hence, service tax was not imposable.

Relq Software Pvt . Ltd. vs . CST, Bangalore 2009 (14) STR 799 (Tri-Bang.)

TOUR OPERATOR’S SERVICE:

21. The Tribunal held that, liability of service tax under tour operator’s service did not arise on mere possession of contract carriage permit. Vehicle of contract carriage permit holder should fulfill requirements of tourist vehicle under Motor Vehicle Rules and such requirements were not stated to be fulfilled in the present case.

CCE, Vadodara vs. Ghasyam Travels 2009 (15) STR 45 (Tri-Ahmd.)

WET CLEANING SERVICES:

22. The assessee had not paid tax on wet cleaning services. The department contended that, words ‘wet cleaning’ was not mentioned in bills. The Tribunal perused the bills and observed that, wet cleaning was mentioned in Invoices and rejected the appeal filed by the department.

CCE, Bhopal vs. New Nagpur Drycleaners 2009 (15) STR 215 (Tri-Del.)

B] VALUATION

23. The appellant was engaged in in-flight catering and claimed benefit of Notification No. 12/2003-ST for value of goods (food) sold on the basis of Sale Invoice. The Tribunal held that, supply of goods being food or any article for human consumption was deemed sale as per Article 366(29A) of Constitution of India, wherein a legal fiction was provided in respect of catering contracts, which were divisible into service and sale of goods. Since the appellant had already discharged sales tax/VAT on sale of food and beverages, no service tax was payable. Also, the appellant had option to choose more beneficial notification, when two options were available.

Sky Gourmet Pvt. Ltd. vs. CST, Bangalore 2009 (14) STR 777 (Tri-Bang.)

24. The appellant provided in-flight catering services to airlines and paid service tax on handling and transportation charges and not on the gross amount received. They have paid VAT on charges collected for food and beverages. The Tribunal held that, service tax was not demandable simultaneously where goods involved and sales tax paid thereon. Cost of food was separately identifiable and exemption under Notification No. 12/2003-ST is admissible.

Grand Ashok vs. CST, Bangalore 2009 (15) STR 344 (Tri-Bang.)

25. The Order in Original allowed abatement of value of materials for photography service. The Commissioner in revision order sought to include such value of materials for levying service tax. The Tribunal held that, sale portion of works contract involving sale and service was not liable to be included in taxable value for levying service tax.

Sood Studios Pvt. Ltd. vs. CCE, Ludhiana 2009 (15) STR 93 (Tri-Del.)

26. The appellant paid contract labour and claimed deduction of payment made to contract labour as reimbursement from Cargo Handling service. The Tribunal held that, service tax chargeable on gross value of service provided and it would not make any difference that specific contract labour was employed and hence, deduction was not allowed.

N. D. Mazumdar & Co. CCE, Bolpur 2009 (15) STR 311 (Tri-Kolkata)

C] CENVAT CREDIT

27. In this case, the assessee availed CENVAT credit of Service tax paid on GTA service for transportation of iron, steel and cement used in civil work of new plant. The Tribunal held that, Service tax paid on GTA service for goods brought for construction relating to setting up of factory and same was covered by the definition of input service.

CCE, Vadodara vs. Videocon Industries Ltd. 2009 (14) STR 692 (Tri-Ahmd.)

28. The appellant (Secondary Switching Area - SSA) availed credit on capital goods supplied by Central Stores Department (CSD) of appellant. The Tribunal observed that, CSD was not selling dealer to SSA and not covered under first stage dealer and credit taken by complying with the condition on use in rendering output service, therefore credit was not deniable on technical or procedural grounds, when substantive conditions had been satisfied.

Bharat Sanchar Nigam Ltd. vs. CCE, Salem 2009 (14) STR 692 (Tri-Ahmd.)

29. The Tribunal held that, catering service being in respect of canteen in factory to give food and snacks to employees was input service relating to business and credit was admissible. It was further held that, bus service used for transport of employees to and fro from factory was also admissible as an input service for CENVAT credit.

CCE, Vadodara vs. Haldyn Glass Gujarat Ltd. 2009 (14) STR 819 (Tri-Ahmd.)

30. The Larger Bench of Tribunal held that expression ‘activities re!ating to business’ covers transportation up to customer’s place and word ‘relating’ widens scope of definition. Input service is not restricted only to services specified after expression ‘such as’ as it is purely illustrative. Transportation of goods to customer’s premises is an activity relating to business and credit of service tax paid thereon is admissible. There is no requirement that cost of freight to be included in transaction value of manufactured goods for admissibility of credit of service tax paid on outward transportation. Valuation and CENVAT credit are independent of each other and have no relevance to each other. Service tax and Excise duty being consumption taxes borne by consumer and if credit of service tax paid on transportation is denied, then it will become tax on business. Interpretation of ‘input service’ cannot fluctuate with change in definition of value under sections 4 and 4A of CEA, 1944. Definition of input service in rule 2(1) of CCR, 2004 has different limbs providing independent benefit. Credit admissible, if one limb is satisfied even if others are not satisfied.

ABB Ltd. vs. CCE & ST, Bangalore 2009 (15) STR 23 (Tri-LB)

31. The Tribunal held that CENVAT credit of service tax paid on outdoor catering service by canteen located in the appellant’s manufacturing premises was allowable, treating the same as input service.

Ferromatik Milacron India Ltd. vs. CCE, Ahmedabad 2009 (15) STR 282 (Tri-Ahmd.)

32. The Tribunal held that, assessee being manufacturer, Explanation to Rule 2(p) of CCR, 2004 providing for deeming service as output service was not applicable. GTA service was not deemed output service for assessee and service tax payment ought to have been made by cash and utilization of credit is improper.

CCE, Raigad vs. Santogen Exports 2009 (15) STR 341 (Tri-Mumbai)

33. The CENVAT credit was denied on the ground that a supplementary invoice was issued for the amount of service tax as the original invoice omitted to mention the same. In another invoice, registration number of the service provider was not provided. It was held that Rule 9 of the CENVAT Credit Rules was not considered by the lower authorities. Substantive compliance being sufficient for granting credit, the matter was remanded to the Commissioner (Appeals) to decide afresh in the light of the aforesaid observations.

Sanghi Industries Ltd. vs. CCE, Rajkot 2009 (14) STR 462 (Tri.-Ahmd.)

34. Credit was taken based on invoices not containing registration number of Input Service Distributor (ISD) viz. the head office of the appellant. However, the receipt of services was not in dispute. Considering that the omission took place when relevant rules were being implemented, credit was held as admissible in terms of the proviso to Rule 9(2) and Rule 14 of the CENVAT Credit Rules.

CCE Vapi vs. Jindal Photo Ltd., 2009 (14) STR 812

35. The appellant paid service tax which, was not due and adjusted the same against subsequent periods tax liability. They have also returned the excess tax collected by issue of credit notes. The Tribunal observed that, recipient of service reversed the CENVAT credit along with interest and held that, unjust enrichment was not applicable to a case for refund of erroneously paid service tax when such tax amount had already been returned to recipient and hence, refund was admissible.

Professional International Couriers P. Ltd. vs. CST, Chennai 2009 (15) STR 295 (Tri-Chennai)

D] PENALTY

36. The Tribunal held that, penalty under section 78 was imposable; however it was reducible to 25% of tax if Service Tax was deposited within 30 days of receipt of order-in-appeal.

CCE, Indore vs . Sona Sharma 2009 (14) STR 668 (Tri-Del)

37. The Tribunal held that, mandatory penalty under section 78 was not reducible as held by the Supreme Court in Dharmendra Textiles Processors 2008 (231) ELT (3) (SC). No discretion under section 80 to impose penalty lesser than the penalty prescribed in section 78.

CCE, Murmbai vs. Riya Travels & Tours ( I ) Pvt. Ltd. 2009 (15) STR 124 (Tri-Del)

38. It was held that, duty or penalty not to exceed Rs.10 lakhs individually for consideration of appeal by Single Member bench. The plea that ‘or’ is to be read as ‘and’ so that duty and penalty had to be taken cumulatively, has been rejected by the Tribunal.

CCE, Lucknow vs. Satya Prakash & Co. 2009 (15) STR 382 (Tri-Del)

39. The Commissioner enhanced the penalty imposed by the Assistant Commissioner while exercising revisional power u/s.84 of the Act from Rs.1,000 to Rs.31,652 and also recorded suppression. However, the Tribunal set aside revision order and restored the original order by observing that leniency considered in view of S. 80 did not suffer any illegality and therefore, could not have been interfered by the revisional authority. The Court observed that since no evidence was produced before the revisional authority to prove fraud, misrepresentation, etc., no jurisdiction was acquired by the authority to impose penalty.

CCE Jalandhar vs. Daramania Enterprises, 2009 (14) STR 741 (P&H)

E] OTHERS

APPEAL:

40. The department assailed refund sanctioned on the ground that assessment not challenged by filing appeal. The Tribunal held that, Service Tax law did not provide for any assessment and no assessment order was contemplated and no appealable order passed for raising challenge. Therefore, the Tribunal rejected the appeal filed by the department.

CCE, Nagpur vs. Noble Grain India Pvt . Ltd. 2009 (14) STR 617 (Tri-Mumbai)

41. In this case, the appellant inadvertently filed appeal in office of the Deputy Commissioner instead of Commissioner (Appeals) situated in same premises. The appeal was filed on 27-11-2006 whereas due date was 29-12-2006. The Commissioner (A) rejected the appeal as time barred. The Tribunal held that, appeal has been filed within time limit though wrongly in another office and remanded the matter to Commissioner (A) for decision on merits.

Global Telecom vs. CST, Mumbai 2009 (14) STR 634 (Tri-Mumbai)

42. The Commissioner (A) disposed of the appeal on merits though the appellant failed to make pre-deposit. The Tribunal held that, deciding matter on merit was not proper and the impugned appeal order was resulting in failure of justice and prejudicing revenue interest. Hence, remanded the matter to Commissioner (A) for fresh decision.

Shree Vibgyor Colour Lab. vs. CCE, Raipur 2009 (14) STR 723 (Tri-Del.)

43. The appellant initially filed appeal within the time limit, but with Superintendent and later filed revised appeal with Commissioner (A). The Tribunal observed that Memo of Appeal along with statement of facts presented to Superintendent indicating as appeal to Commissioner (A) and held that fresh appeal filed later ought to have been treated as filed within time limit and remanded the matter to Commissioner (A) for fresh decision on merits.

Goa Tourism Development Corpn. Ltd. vs. CCCE, Goa 2009 (14) STR 782 (Tri-Mumbai)

44. The appeal was filed by officer other than the officer authorised to file the appeal by Committee of Commissioners. The Tribunal held that, appeal being defective, hence not maintainable.

CCE, Pune-III vs. Sterlite Industries (I) Ltd. 2009 (15) STR 354 (Tri-Mumbai)

45. The Courier Company made a mistake in serving appeal papers to office of the Commissioner of Customs instead of Commissioner (Appeals). The Tribunal observed that, Commissioner of Customs committed a mistake in not handing over papers to Commissioner (Appeals) and held that, appeal filed before Commissioner of Customs is proper and in time.

AT & T Communications Services lndia Pvt. Ltd. vs. CC, Bengaluru 2009 (15) STR 514 (Tri-Bang.)

DEMAND:

46. The appellant had undertaken works contract with Oil PSU indicating repairing of old LPG cylinders. The department sought to demand tax for the period 1-7-2003 to 31-3-2004. The Tribunal held that, definition of relevant services was amended for including repair under contract from 16-6-2005. The impugned demand was for prior period hence, not sustainable.

Universal Cylinders Ltd. vs . CCE, Jaipur 2009 (14) STR 745 (Tri.-Del.)

47. The department demanded Service Tax under Security Agency services by invoking section 11 of Central Excise Act, 1944. The Tribunal held that, invocation of said provision is fundamental flaw vitiating entire proceedings. Section 66(1) of Finance Act, 1994 invoked in SCN is charging section and does not contain machinery for recovery of tax not paid, which was under section 73 of Finance Act, 1994.

Tiger Security Services vs . CCE, Madurai 2009 (14) STR 747 (Tri-Chennai)

NOTIFICATION:

48. The Tribunal held that the explanation introduced by Notification No.15/2002-ST was not indicating any retrospective effect and was effective from the date of issue only. Demand under management consultant and manpower recruitment or supply agency services for the period from 16-10-2008 to 31-7-2002 is not sustainable. The legislative intention when not obvious could not be read into a notification by implementing agency. Benefit available on plain reading of notification could not be denied retrospectively by issuing another notification.

Sridhar & Santhanam vs. CCE (ST), Chennai 2009 (14) STR 756 (Tri-Chennai)

PRECEDENT:

49. The issue of excluding cost of paper, chemicals, etc. being covered by the Tribunal decision in case of Shilpa Lab & Others vs. CCE, 2007 (5) STR 423 (Tri.-Bang), the Tribunal held that finding of the Commissioner (Appeals) that the Tribunal decision was distinguishable was wrong and against the judicial discipline and allowed the appeal.

S. V. Colour Lab vs. CCE, 2009 (15) STR 231 (Tri.Bang.)

REFUND:

50. In this case the Revenue contended that the assessment of ST-3 return had not been challenged by the assessee, hence refund was not admissible. The Tribunal held that provision for assessment was absent in Service tax and no order of assessment capable of being appealed was passed and refund without challenging assessment was admissible.

CCE, Nagpur vs. Repol Plastics Ltd. 2009 (14) STR 837 (Tri-Mumbai)

51. The Tribunal observed that, refund of CENVAT credit of service tax on input service was allowed under rule 5 of CCR, 2004 from 10-9-2004 and held that, benefit of rule was not deniable just because notification was not issued during the material period. Notification No. 5/2006 was applicable to period prior to 14-3-2006 and no appeal had been filed by the department against earlier order of Commissioner (A) ordering refund.

Fibers & Fabrics lntemational P. Ltd. vs . CC (A), Bangalore 2009 (14) STR 809 (Tri-Bang.)

52. The Tribunal held that, during April to June, 2005 proviso to sub-rule (3) to Rule 3 of ESR, 2005 providing for condition of receipt of commission in foreign currency was applicable only if service recipient had commercial or industrial or any office relating thereto in India. Since foreign company was not having any office in India the proviso and conditions were not applicable and therefore appellant was eligible for refund under rule 5 of ESR, 2005.

National Engg. Ind. Ltd. vs. CCE, Jaipur 2009 (15) STR 68 (Tri-Del.)

53. The Tribunal held that, appeal fees was not to be paid in respect of refund claims in absence of any specific provisions in section 129A(6) of Customs Act, 1962, as refund claim was not treated as a demand of duty, interest or penalty by department.

Taksal Pharma Pvt. Ltd. vs. CC (Airport), Mumbai 2009 (15) STR 106 (Tri-Mumbai)

54. The Tribunal observed that, sale of goods at loss was not conclusive on the question of passing on burden of excise duty. CA Certificate did not satisfy the requirements of granting refund. Section 11B of CEA, 1944 did not make any distinction between a private and public enterprise. Principle of unjust enrichment applicable to the present case and hence refund was not admissible.

Cement Corpn. of India Ltd. vs. CCE, Rohtak 2009 (15) STR 122 (Tri-Del)

55. The Tribunal held that, denial of refund on the ground that appellant did not receive foreign exchange directly was not sustainable. Appellant was rendering services directly to recipient situated abroad and liberal interpretation of notification was to be made. Receipt of foreign exchange by agent (Satyam) was deemed to have been received by appellant for the purpose of Export of Service Rules, 2005.

Nipuna Services Ltd. vs. CCEC & ST (A-II), Hyderabad 2009 (14) STR 706 (Tri-Bang.)

REVIEW:

56. The Committee of Commissioners had second review after disagreement of Chief Commissioner with decision not to file appeal after first review. The Tribunal held that, there was no provision for second review by Committee of Commissioners and held that, Review Committee becomes functus officio once it decided not to file appeal to CESTAT. Second review was not permissible and application for condonation of delay and appeals dismissed.

CCE & ST LTU, Bengaluru vs. Dell International Services India P. Ltd. 2009 (15) STR 267 (Tri-Bang.)

SHOW CAUSE NOTICE:

57. The appellant had not paid service tax on Technical Testing and Inspection service initially but paid later on with interest. The Tribunal referred to CB EC Circular No. 137/167/2006-CX-4, dated 3-10-2007 and held that, section 73(3) of FA, 1994 provided for non-issue of show cause notice when service tax was paid with interest voluntarily and conclusion of proceedings in such situation and therefore penalty was not imposable.

Santhi Casting Works vs. CCE, Coimbatore 2009 (15) STR 219 (Tri-Chennai)

58. The Tribunal held that, communications, orders, suggestions or advices from the department could not be deemed to be a show cause notice. A specific show cause notice indicating the amounts demanded and calling upon the appellant to show causes was necessary. The letter by DC directing to deposit the duty could not be treated as a show cause notice hence demand of duty pursuant to the said letter was not sustainable.

Merchant lmpex vs. CC, Bengaluru 2009 (15) STR 504 (Tri-Bang.)

SPEAKING ORDER

59. The Tribunal observed that, submission of party had been recorded but not considered by adjudicating authority and there was no finding recorded as to how provision of law invoked could be applied to the facts of the case. The Tribunal held that, there was non-application of mind in passing order and the order should be speaking order and should enable assessee to know how duty liability was arrived at. Alpic India vs. CCE, Thane 2009 (15) STR 114 (Tri-Mumbai)

STAY:

60. The Tribunal observed that the words ‘directly and indirectly’ used in relation to ‘manufacture’ in the definition of input service had to be given very wide meaning, and held that banking & other financial services, general insurance service and courier agency service were to be treated as input service; stay petition was allowed.

Rohit Surfactants P. Ltd. vs. CCE, 2009 (15) STR 169 (Del-Tri)

OTHERS:

61. The appellant received design and drawing through courier from Japan. The entire work relating to designs and drawings was completed in Japan. The Tribunal held that designs and drawings sent as parcel or through courier attracts provisions of Customs Act, 1962 and to be treated as goods. Hence, the service tax was not applicable. Also, there was sufficient cause present to invoke section 80 for waiver of penalty and therefore extended time limit was not applicable.

Solitz Corporation vs. CST, New Delhi 2009 (1 4) STR 642 (Tri-Del)

F] WAIVER OF DEPOSIT

62. The Tribunal had ordered pre-deposit of Rs. 40 lakhs out of confirmed demand of more than Rs. 1.30 crores. Against the said order, the appellant had filed Modification Application after High Court granted permission to approach Tribunal for rectification of error. The Tribunal after relying on subsequent decision in Indian Hume Pipe Co. Ltd. 2008 (12) STR 363 (T) wherein, it was held that laying of pipelines for water supply was not covered under Commercial or Industrial Construction service, waived the entire pre-deposit earlier ordered for, as prima facie the issue was settled by Tribunal in favour of the appellant.

Larsen & Toubro Ltd. vs. CST, Ahmedabad 2009 (14) STR 682 (Tri-Ahmd.)

63. The Commissioner (A) dismissed the appeal for non-compliance with pre-deposit direction. The Tribunal observed that, there was bona fide belief on non-liability and held that amount of 25% of tax and interest already deposited was sufficient and matter remanded to Commissioner (A) for decision on merits without further pre-deposit.

Jumbo Mining Ltd. vs. CCEC & ST 2009 (15) STR 152 (Tri-Bang.)