SERVICE TAX

2018-TIOL-1706-CESTAT-BANG + Case Story

Satish Crane Services Vs CCE, C & ST

ST - Appellant had handed over legal possession of Cranes to the user - service tax is liable to be paid under SOTG only in those cases where the legal right of possession and effective control is ‘not' transferred – impugned order set aside and appeal allowed: CESTAT [para 5, 6] - Appeal allowed : BANGALORE CESTAT

Suzlon Energy Ltd Vs CCE & ST

ST - Technical know-how/engineering designs and drawingswas imported against the bills of entry – Revenue seeking to bring such imports within the framework of ‘design service' and confirming service tax demand – appeal to CESTAT. Held: It is seen that the engineering designs and drawings had been included as part shipment in accordance with contract for wind generators - That bills of entry have been filed by the appellant is also a matter of record -Taxation of goods and that of services are mutually and explicitly conceived levies - same activity cannot be taxed as goods and as services – impugned order set aside and appeals allowed: CESTAT [para 7 to 10] - Appeals allowed : MUMBAI CESTAT

Philips India Ltd Vs Commissioner of Central Tax

ST - Assessee is rendering Information Technology Software Services - For providing taxable services under category of ITSS which are exported, assessee availed various input services and also availed CENVAT credit of service tax on input services as per CCR, 2004 - Since they are unable to utilize CENVAT credit, they filed periodical refund claims - Same was partly allowed - Case needs to be remanded back to original authority to consider the various documents viz. e-BRCs which has been produced before Tribunal and has not been produced before both the authorities below - Refund claims have also been rejected on account of invoices missing which the assessee submits that he has some of the invoices in his possession which can be produced before the authorities below - Further, it is found that refund claims have been wrongly rejected by both the authorities on the ground that the invoices are not addressed to registered premises and some of the services have been rendered to Philips Healthcare which is an independent entity - Assessee has submitted that they are in a position to establish that Philips healthcare is their division and they are entitled to refund as the services are rendered to that division - In view of observations of Tribunal in case of Apotex Research Pvt. Ltd. 2014-TIOL-1836-CESTAT-BANG , original authority will consider the ratio of said decision while determining the quantum of refund claim - With this observation, impugned order set aside and matter remanded to the original authority - The original authority should bear in mind that on technical irregularities, the refund claims should not be rejected as per the decisions of Tribunal: CESTAT - Matter remanded : BANGALOREI CESTAT

Nxp Semiconductors India Pvt Ltd Vs Commissioner of Central Tax

ST - Assessee is in appeal against impugned order whereby Commissioner (A) has partly allowed the refund on certain input services and denying the refund on other services - Commissioner (A) has also denied refund on time bar as well as on lack of nexus in regard to certain services - As far as rejection of refund on time bar is concerned, by following the Larger Bench decision in case of Span Infotech (India) Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB where it has been held that relevant date of one year for the purpose of time limit for consideration of refund under Rule 5 of CCR may be taken as the end of the quarter in which the FIRCs are received - With regard to nexus, both the services have a nexus with output services exported - As far as inconsistency in computation of amount eligible for refund is concerned, the original authority will examine it and will decide afresh by applying the correct formula - Both appeals are allowed by way of remand by setting aside the impugned order with a direction to original authority to consider the claim of assessee in view of Larger Bench decision: CESTAT - Matter remanded : BANGALOREI CESTAT