SERVICE TAX

sercir209

Applicability of the Place of Provision of Services Rules, 2012 (POPS) to development of software and services on software

CASE LAWS

2018-TIOL-1430-CESTAT-DEL

Om Telecom Logistics Vs CST

ST - Assessee has taken vehicles on hire from various truck owners/operators for movement of goods from its warehouse to client's premises - Since the assessee did not pay Service Tax on Transportation Charges under taxable category of GTA service, Department proceeded against assessee for confirmation of Service Tax demand under such head of service - Upon perusal of sample copies of bills issued by transporters in favor of assessee, said invoices found to be titled as "cash/credit memo" - Said memos issued by transporters do not contain the requisite particulars as provided in explanation appended to Rule 4 B of STR, 1944 - In this case, conditions prescribed in Section 65 (105) (zzp) r/w Section 65(50b) of FA, 1944 have not been fulfilled inasmuch as, a person is to be categorized as a "goods transport agent", when only he issues the consignement note in manner prescribed in statute - Since, the documents issued by service provider for transportation of goods are not in confirmity with Rule 4B of Rules, said documents cannot be termed as consignment note, and transporters cannot be termed as goods transport agents, for the purpose of payment of Service Tax by assessee, as a recipient of service, under reverse charge mechanism - Tribunal in case of South Eastern Coal Field Ltd. 2016-TIOL-2773-CESTAT-DEL has held that in absence of issuance of consignment note, transporters cannot be treated as goods transport agency for purpose of levy of Service Tax under GTA services - Impugned order set aside: CESTAT - Appeal allowed: DELHI CESTAT

2018-TIOL-1429-CESTAT-DEL

Vijay Enterprises Vs CCE

ST - Assessee engaged in providing C & F Agency service in pursuant to contract with their clients - Dispute relates to addition of certain expenses towards rent, loading and unloading incurred by assessee during course of their service to client, in taxable value - It is a well settled principle upheld by Tribunal as well as by various High Courts regarding valuation of C & F Agent Service that, any expenses incurred by such agent and reimbursed as per contractual agreement, on actual basis cannot form part of taxable value on C & F agent service - The Original Authority categorically recorded that all these expenses are incurred and reimbursed on actual basis and no reason found to vary the finding recorded by Original Authority: CESTAT - Appeal allowed: DELHI CESTAT

CENTRAL EXCISE

2018-TIOL-1428-CESTAT-MUM

Shree Precoated Steel Vs CCE

CX - CENVAT -Goods cleared for export from the place of removal - since in case of export, ownership of the goods remains with the exporter and, therefore, all the expenditure for the clearances of the goods up to the port is borne by the exporters, export price is CIF, therefore, place of removal stands extended up to port - transportation incurred for clearances of the goods from factory to port is within the ambit of the term ‘clearances of goods up to the place of removal' - GTA service is covered under the definition of Input service and credit is admissible thereon - so also, in case of supply of goods to depot, the place of removal is depot from where the goods are sold, so credit is available in such case also - Tribunal orders in Rathi Dye Chem 2017-TIOL-3638-CESTAT-MUM and Welspun Corporation Ltd. Final Order A/90165/17/SMB followed - impugned order set aside and appeal allowed: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1427-CESTAT-MUM

Cadbury India Ltd Vs CCE

CX - Classification of Cadburys ‘Tiffins', whether under CH 1905.11 as claimed by assessee or under CSH 1905.31 as alleged by Revenue. Held: Goods in question are biscuits coated with Chocolate - facts are undisputed that the appellant bought biscuit from the market and coated the same with chocolate - after the said process, it remained biscuits only albeit covered with chocolate - CSH 1905.11 covers the goods in relation to manufacture of which any process is ordinarily carried on with the aid of power whereas CSH 1905.31 covers Waffles and Wafers coated with chocolate or containing chocolate - it is not in dispute that the goods in question are biscuits coated with chocolate and not waffles or wafers covered with chocolate - intention of legislature to classify the goods under CSH 1905.31 is only in respect of waffles or wafers and not biscuits - in this view of the matter, no reason to classify the impugned goods under CSH 1905.31 - agreeing with the order of the Tribunal in the case of Munch Food Products - 2014-TIOL-810-CESTAT-DEL, goods viz. Cadburys Tiffins are correctly classifiable under CSH 1905.11 - impugned order set side and appeal allowed with consequential relief: CESTAT [para 4] - Appeal allowed: MUMBAI CESTAT

2018-TIOL-1426-CESTAT-MUM

Sh Kelkar And Company Pvt Ltd Vs CCE

CX - Dispute pertains to disallowance of CENVAT credit of Rs.5,04,700/- availed on tax paid on procurement of ‘management consultancy service' which, according to the jurisdictional authorities was not utilized exclusively by them but shared with related enterprises - appeal to CESTAT. Held: There is no dispute that the appellant had borne the cost of the impugned services and invoices were issued in the name of the appellant - A perusal of the SCN reveals that the issuing authority was not in possession of any evidence of multiple utilization of the service - in such circumstances, unless sufficient evidence of utilization of service by others was available with the jurisdictional authorities, initiation of proceedings was not warranted - impugned order set aside and appeal allowed: CESTAT [para 3, 4] - Appeal allowed: MUMBAI CESTAT