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SERVICE TAX
2018-TIOL-1892-HC-MUM-ST + Case Story
CCE Vs Eon Hinjewadi Infrastructure Pvt Ltd
ST - Section 35G, 35L of the CEA, 1944 - Section 83 of the Finance Act, 1994 - Maintainability of Appeal - Whether supply of electricity is an essential part of the service of Renting of Immovable Property - Whether the sale of goods viz. electricity would amount to supply of service for purpose of valuation is an issue which directly relates to valuation of goods - jurisdiction of High Court is determined by the nature of the order passed by the Tribunal and not by the manner in which the question is proposed - issue decided by the Tribunal is in respect of valuation of services while renting of immovable property and not with regard to taxability of the service - appeal not maintainable before High Court: HC [para 6, 7, 9, 10, 11]
ST - Maintainability of Appeal - Central Government had issued a Notification No. 12/03-ST dated 20th June, 2003 exempting supply of goods from service tax and which prima facie would suggest that otherwise the value of goods supplied by a service provider may be included in the valuation of the services, in the absence of the Notification - issues relating to valuation are not within the jurisdiction of the High Court - Revenue appeal disposed of as not maintainable with liberty to the Revenue to approach the Apex Court: High Court [para 7]
- Appeal disposed of : BOMBAY HIGH COURT
2018-TIOL-1891-HC-MUM-ST + Case Story
Apm Terminals India Pvt Ltd Vs CCE
ST - Maintainability of appeal - section 35G, 35L of the CEA, 1944 - section 83 of the Finance Act, 1994 - jurisdiction to entertain an appeal would depend/be determined by the nature of the order passed by the Tribunal and the ingenuity of the advocate in framing the question cannot change the nature/basis of the order of the Tribunal: High Court [para 10]
ST - Issue which arises in this appeal is whether the consideration which is received under the head "Cargo Handling" services is in fact consideration received for services classifiable under "Storage and Warehousing" services as contended by the Revenue - Revenue contends that a part of the consideration received is for services rendered under the head "Storage and Warehousing" services while according to the appellant, the entire services are classifiable under the head "Cargo Handling" services - Thus, the dispute is with regard to classification of services - It is only after the service is classified into its appropriate head would the question of exclusion of export services from service tax, if classifiable under the head "Cargo Handling Services" would arise - primary issue which would arise is classification of the Services - in terms of Section 35G(1) of the CE Act, High Court would have no jurisdiction to entertain such an appeal - Appeal not maintainable: High Court [para 11, 15, 16]
- Appeal disposed of : BOMBAY HIGH COURT
2018-TIOL-1890-HC-KAR-ST + Case Story
Archi Technics Vs CCE & ST
ST - Tribunal should maintain the consistency in its approach while dealing with the appeals - Division Bench of Tribunal in Raj Kumar Ora had set aside the penalty by invoking s.80 of the FA, 1994, on account of cancer of the father of the proprietor of the service provider firm - What circumstances such family reasons will be reasonable cause or not would depend upon the facts of each case and, therefore, unless the relevant details are discussed, the Tribunal could not have brushed aside the the plea of the appellant of illness and medical expenses incurred for treatment of their mother's heart ailment by a one liner - matter deserves to be reconsidered by the Tribunal - order set aside and matter remanded to Tribunal: High Court [para 4, 5]
-Matter remanded
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KARNATAKA
HIGH COURT
2018-TIOL-2799-CESTAT-MUM
JSW Steel Salav Ltd Vs CCE & ST
ST - Refund claimed of service tax paid on Outdoor Catering service on the ground that the service provided by the Outdoor caterer is exempted from payment of tax in terms of Entry no. 19 of Notification 25/2012-ST - claim rejected on ground that the conditions enumerated in the notification have not been complied with inasmuch as service provider did not provide any services either from restaurant, eating joint or a mess - appeal to CESTAT.
Held : Since such service provider has not served any food or beverages in a restaurant, eating joint or a mess and provided altogether a different taxable service to appellant within its factory premises, condition no. 19 has not been fulfilled for claiming refund benefit of service tax paid by service provider-no infirmity in impugned order - appeal dismissed: CESTAT [para 3, 4]
- Appeal dismissed: MUMBAI CESTAT
2018-TIOL-2798-CESTAT-BANG
Adarsh Developers Vs CCE & ST
ST - The assessee is engaged in joint development of land and building of residential/commercial complexes - They have undertaken projects in and around Bangalore and the projects were known by the name of 'Adarsh Esplanade', 'Adarsh Palm Meadows', 'Adarsh Palm Retreat', 'Adarsh Vista' and 'Adarsh Rhythm' - It was alleged that the services rendered by assessee also included maintenance of immovable property service and assessee is also liable to service tax on reverse charge mechanism for services they have utilized from overseas architects - Regarding the chargeability of maintenance and repair service, assessee submitted that no service is rendered by the developer towards prospective buyers - The amounts are either returned to the buyers or transferred to housing societies that may be formed after any such societies are formed - It has been held by Mumbai High Court in case of Green Valley Developers - 2018-TIOL-288-HC-MUM-ST that the builders are not liable to pay service tax under category of maintenance or repair services on one time maintenance charges collected from flat buyers.
Coming to the allegation on service tax leviable on them on the service they have availed from overseas architects, they submitted that the demand on architectural service was for the period 16.8.2002 to 31.1.2007 - They submitted that Bombay High Court has given a categorical judgment on this issue in case of Indian Ship Owners Association - 2008-TIOL-633-HC-MUM-ST - They submit that service tax liability, if any, on the said service would be applicable only for a period 18.4.2006 to 31.1.2007 - The assessee submitted that the same may be appropriated from the refund due to them - In respect of refund, they have submitted that they have not raised any invoices and the amounts have not been recovered from any customers - Therefore, there can be no case of unjust enrichment - The Chartered Accountant has also certified the facts - Therefore, the refund may be granted.
All the issues raised in the appeals have been settled in favour of assessee - Assessee was not required to pay any service tax for the construction services before 1.7.2010 and they were also not liable to pay any service tax on the deposits received for management, maintenance or repair services and they are not liable to pay any service tax on reverse charge mechanism basis for the services they have utilized from the overseas architects for the period prior to 18.4.2006 - Assessee is required to pay service tax on this count for the period 18.4.2006 to 31.1.2007: CESTAT
Appeals partly allowed: BANGALORE CESTAT
CENTRAL EXCISE
2018-TIOL-2797-CESTAT-MAD
Lenovo India Pvt Ltd Vs CCE
CX - Assessee is manufacturer of computers - SCNs were issued to assessee alleging wrong availment of benefit of notfn 6/2006-CE - It appeared to department that assessee is not eligible for notfn, since the CPU without monitor does not constitute a machine namely 'Computer' to attract concessional rate of duty as per the notification - The department has accepted classification of impugned goods even without the monitor to be under 8471 - Entry No.16 applies to goods falling under CTH 8471 - When the goods fall under said classification, the assessee come within the ambit of eligibility / application of notfn - It is very much clear from explanation that even if CPU is cleared separately or cleared with monitor, mouse and keyboard together as a set, the benefit of notfn would be applicable - The Apex Court in case of Bharat Diagnostic Centre 2014-TIOL-86-SC-CUS-LB analysed the meaning of word 'include' in Notfn 63/88, wherein it was held that the said word generally enlarges the meaning of words or phrases to comprehend not only such things as they signify according to their natural import or as per common parlance, but also those things which interpretation or explanation clause declares that they shall include - Similar view was taken by Apex Court in case of Ramala Sahkari Chini Mills Ltd 2016-TIOL-20-SC-CX-LB - Admittedly the goods fall under CTH 8471 and thus the assessee is eligible for benefit of notfn - This being so, the benefit of exemption has to be then construed liberally - Even without such liberal interpretation, since the explanation uses the word 'include', it is very clear that although the CPU is not cleared alongwith the monitor, the goods would fall within the description of Computers as given in Column 3 of the Notfn - The demand cannot sustain and same is set aside: CESTAT
- Appeal allowed; CHENNAI CESTAT
2018-TIOL-2796-CESTAT-ALL
Motherson Automotive Technologies and Engineering Ltd Vs CCE & CGST
CX - The assessee were engaged in manufacturing of Plastic Injection moulded components of Automobiles, components for wiring harness, components for motor vehicle, components for medical equipments, moulds and moulds parts, PVC Insulated Wires & Wiring Harness - It availed Cenvat credit on outdoor catering services - The facility of canteen was provided by asssessee in their factory of the workers as required by provisions of Factory Act - The Revenue took a view that outdoor catering service does not amount to output service - The Original Authority allowed the credit, however, on appeal Commr.(A) disallowed the credit on grounds that that even if a canteen was maintained, it cannot be said that it is an integral part of manufacture or production carried on by the assessee - Hence, the present appeal.
Held: The HC of Bombay, Gujarat & Allahabad in CCE, Nagpur vs. Ultratech Cement Ltd , CCE, Ahd vs Ferromatik Milacron India Ltd & CCE vs. HCL have held that service sax paid on Outdoor Catering Service, availed by manufacturer for providing canteen facility to the workers as required by Factory Act were admissible as input service - Hence, the order under challenge is set aside : CESTAT (para 1,3)
- Assessee's appeals allowed: ALLAHABAD CESTAT
2018-TIOL-2795-CESTAT-BANG
Wipro Ltd Vs CCE & ST
CX - Assessee is engaged in manufacture of hydraulic cylinders - The Department during verification of records of assessee found that they have availed CENVAT credit during the years 2004-05 to 2007-08, pertaining to the transportation of finished goods by air and by road after the same were cleared at the factory gate - The issue of availability of CENVAT credit on transportation of finished goods from the place of removal is squarely settled in law - Supreme Court in case of Vasavadatta Cements Ltd.- 2018-TIOL-90-SC-CX has confirmed the view of Division Bench of CESTAT in case of ABB Ltd. - 2011-TIOL-395-HC-KAR-ST stating that the Bench has interpreted the aforesaid Rule observing that it is in two parts - In the first part, 'input service' is defined with the expression 'means' and in that context input service is defined as any service used by a provider of taxable service for providing an input service or used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of the final products 'from the place of removal' - It is further held that second part of the definition starts from 'includes' where some of the services are mentioned, which are included as 'input services' - By virtue of an amendment with effect from 1.4.2008 by Notfn 10/2008, the wordings of the Rule have been changed 'from the place of removal' to 'upto the place of removal' - Therefore, in due submission to the ratio of the judgments cited, CENVAT credit on the outward transportation services provided by assessee is eligible to them: CESTAT
- Appeal allowed: BANGALORE CESTAT
CUSTOMS
2018-TIOL-2794-CESTAT-KOL
Indian Farmers Fertilizer Cooperative Ltd Vs Commissioner of CGST EX and Customs
Cus - Assessee imported Rock Phosphate from an overseas Supplier M/s. Jordon Phosphate Mines Limited, Jordon on the basis of Memorandum of Agreement - They got rebate on CTR price on account of higher moisture and Silica contained in Cargo of Rock Phosphate and subsequently change in freight rate - The assessee filed a refund claim on reduction of freight in respect of Bill of Entry - Same was rejected mainly on the ground that assessment made by assessee in Bill of Entry reached its finality, which they have not challenged - The lower authorities followed the decision of Supreme Court in case of Priya Blue Industries Limited 2004-TIOL-78-SC-CUS - Tribunal in case of Lalit Kumar after considering the decision of Priya Blue Industries Limited dismissed the appeal filed by Revenue - The impugned Order cannot be sustained, accordingly, it is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
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