ST - Assessee is engaged in construction activities and registered with Service Tax Authorities under heading "Commercial or Industrial Construction Service" - Alleging that assessee was liable to pay service tax for period 2008-09 to 2010-11, a SCN was issued - The demands were confirmed by Commissioner and later by Tribunal based upon concurrent construction of Section 65(64) of FA, 1994 - The assessee more or less reiterates its submissions with respect to the absence of any levy in regard to landscape activity contending that commercial activity is in reality horticultural service - Reliance is placed on proviso to Section 65(24b) of FA, 1994 - The assessee relies upon the judgment of Supreme Court in Ballarpur Industries Ltd. 2007-TIOL-153-SC-CX and Gas Authority of India Ltd. 2007-TIOL-250-SC-CX - What the assessee thus contending is that the parliamentary exclusion of service in relation to agricultural, horticultural and animal husbandry carved out in respect of a distinct item or subject of levy ought to be read into as an exclusion of another entry altogether i.e. Section 65(64) of Finance Act which relates to "management, maintenance or repair" activity - In support of its arguments, assessee has not relied upon any authority to say that specific exclusion of one head or one commercial activity can generally be read in relation to other specific heads - Such an interpretation is also not supported by any principle of statutory construction and therefore has to fail - No substantial question of law arises: HC - Appeal dismissed: DELHI HIGH COURT

ST - Assessee is engaged in providing services like Management Consultancy, BAS, Banking and Financial Services - Under said category of services, they have rendered services of export agency services, furnishing guarantee for subsidiaries and holding for investments - During audit, it was noticed that they have received a guarantee commission and commitment charges but discharged service tax only on guarantee commission and had not paid service tax on commitment charges - The demand of service tax is raised on commitment charges received by assessee - The Commissioner (A) has set aside the demand observing that such charges are in the nature of interest - It is brought out from the records that while paying commitment charges the subsidiary companies deduct TDS considering it to be payment of interest - The Board vide its Circular dated 10.9.2004 has clarified that no service tax is leviable on interest in category of Banking and Financial service - The department has proceeded to demand service tax only for the reason that assessee has accounted it as guarantee commission - When the charges have been received separately under the head of guarantee commission as well as commitment charges, merely by accounting the same as guarantee commission, the amount received cannot be subjected to levy of service tax if the nature of amount received is not a commission but interest of unused credit - Commitment charges being in the nature of interest cannot be subject to levy of service tax: CESTAT - Appeal dismissed: CHENNAI CESTAT

2018-TIOL-2072-CESTAT-MAD

Amnet Systems Pvt Ltd Vs CST

ST - Assessee is engaged in providing conversion services of e-books to electronic files / publishing services falling under BAS - They filed refund claim for different periods under Rule 5 of CCR, 2004 r/w Notfn 27/2012-CE(NT) - After due process of law, original authority sanctioned part of refund claim and rejected the remaining - Issue that arises for consideration is whether the relevant date for computing the period of limitation of one year for filing the refund claim is to be taken as the date in the invoice or the date of the receipt of foreign exchange - The Tribunal in various decision has held that relevant date is to be reckoned from the date of receipt of foreign exchange - Assessee has submitted that when the relevant date is reckoned as the date of receipt of foreign currency, the refund claims are well within time - Decisions as stated in Chief Commissioner's circular dated 26.10.2016 clarifies that in case of export of services, the relevant date is the date of receipt of foreign remittance - Following the same, rejection of refund claim on the ground of limitation is unjustified and same is set aside - As regards to refund rejected for the reason that assessee has not been able to produce the FIRCs - Production of FIRCs being a procedural requirement and if assessee is able to establish the receipt of foreign exchange with the invoices, assessee cannot be denied substantive benefit of refund - For the limited purpose of verification of these remittances with the invoices, matter remanded - The last issue to be addressed is rejection of refund for non-production of FIRCs - Assessee has submitted that they would be able to furnish the FIRCs if given a further chance - This issue also is remanded to the adjudicating authority: CESTAT - Matter remanded: CHENNAI CESTAT

CX - Assessees had carried writ petitions not only challenging the relevant orders by which their appeals were found to be incompetent but also questioning the propriety of amendment to Section 35F of CEA, 1944 and assailing the vires of amended provision - The legal question involved in appeals has now been decided in favour of assesssee by Supreme Court in 2018-TIOL-59-SC-CX - The Supreme Court expressed the opinion that merely because the customers of these jute manufacturing assessees required the desired brand name to be indicated in bags, it would not imply that assessees would not be entitled to exemption that they could otherwise claim - The Central Excise authorities accept that in view of Supreme Court judgment, the benefit has to be given to all similarly-placed assessees, including the assessees involved in matters listed today - The challenge to the vires of amended provision becomes academic and it is no longer necessary to assess the propriety of orders impugned both in regular appeals and in writ petitions by which the Appellate Tribunal dismissed the appeals without going into the merits thereof: HC - Writ petitions allowed: CALCUTTA HIGH COURT