2018-TIOL-2542-HC-KERALA-CT

Whether 'mining' encompasses 'quarrying' & allows for HSD used in vehicle but if the same being inter-dependent then it is possible to exclude vehicles used for removing the mined material - NO: HC

- Assessee's writ petition allowed : KERALA HIGH COURT

SERVICE TAX

2018-TIOL-3692-CESTAT-HYD

ST - Assessee had availed Cenvat Credit on service tax paid on input services while constructing an IT park - After construction of such IT park, assessee had rented out the premises to various Information Technology companies - Holding a belief that they are eligible for availment of Cenvat Credit on various input services which were utilized for construction of such IT park, they availed Cenvat Credit which the department had contested in SCN issued to assessee - Similar issue came up before the Tribunal in case of Navaratna SG Highway Prop Pvt Ltd - 2012-TIOL-1245-CESTAT-AHM wherein the bench after considering all the issues held in favour of assessee - Said view of the Tribunal was held by High Court of Gujarat in case of Mundra Ports and Special Economic Zone Ltd - 2015-TIOL-1288-HC-AHM-ST wherein the Lordships have held that any input services used for erecting facility, service tax credit cannot be denied on such input services - Further, same view has been expressed by this Bench in case of Lemon Tree Hotels - 2018-TIOL-1202-CESTAT-MUM - In view of the foregoing, impugned orders are set aside: CESTAT

- Appeal allowed : HYDERABAD CESTAT

2018-TIOL-3691-CESTAT-MUM

ST - Condonation of delay of 15 days - The delay occurred in filing the appeal as authorized signatory was unavailable - Delay condoned: CESTAT

- Appeal allowed : MUMBAI CESTAT

2018-TIOL-3690-CESTAT-DEL

ST - The assessee is the holder of Service Tax Registration for providing service of Tour Operator Services - The Department observed that the assessee have collected the amount of taxable tour charges from the other Tour Operator namely M/s. Dashmesh Tours & Travels, however, have not paid Service Tax for the said amount collected during the period - The acknowledged and the alleged activity of assessee is only the collection of the amount of taxable tour charges - There is no single allegation that the tour for which the assessee have collected amounts though on behalf of M.s M/s. Dashmesh Tours & Travels but for them assessee only was providing remaining other activities as will conclude the collection of said charges to classify as tour operator service - In absence thereof, adjudicating authority below has not rightly applied the definition of tour operator to the alleged activity of assessee - The only reason that there is no evidence for discharge of liability of tour operator service even on part of the M/s. Dashmesh Tours & Travels the same cannot be the reason to confirm the demand of tour operator service qua the assessee who apparently and admittedly is just rendering service of booking tickets - Any demand under the guise of it being tour operator is not sustainable - The law is simultaneously settled that the adjudicating authority cannot go beyond the scope of SCN - Seen from any angle, the confirmation of demand is not sustainable: CESTAT

- Appeal allowed : DELHI CESTAT

CENTRAL EXCISE

2018-TIOL-3695-CESTAT-AHM

CX - The appeal is directed against the impugned order whereby the Commissioner upheld the denial of Cenvat Credit in respect of Construction Service received by assessee for the period prior to 01.04.2011 - The case of department is that the invoice of Construction Service on which the Credit was availed issued on 24.08.2011 and from 01.04.2011, the Construction Service was excluded from the purview of definition of inputs service, assessee is not entitled for the Credit - As per the completion Certificate produced by assessee even to the lower authority, it is clear that the service was completed as on 25.03.2011 for which the invoice was issued on 28.04.2011 - In view of this certificate, there is no dispute that the service was completed prior to 01.04.2011 - It is clear that if the service is completed before 01.04.2011, the credit shall be available - Though the Board had not clarified regarding the date of issue of invoice, this issue has been considered by Tribunal in the case of Kamal Rub Plast Industries Pvt. Ltd , wherein the identical situation was existing and the Tribunal has held that the credit cannot be denied for the delay in issuing the invoice - In the said case also, the services was completed before 01.04.2011 and invoice was issued belatedly after 01.04.2011, therefore, considering this Tribunal's judgment merely because the invoice was issued after 01.04.2011 in respect of services which were completed prior to 01.04.2011, the credit cannot be denied - As regard the contention of lower authority regarding the construction of building is an immovable property, hence, the credit is not admissible, this aspect is relevant to the case where inputs are used and the resultant product is immovable property - However, in the case of inputs there is an explicit inclusion of Construction Service in the definition of inputs service defined under rule 2(l) for CCR, 2004 - Therefore, merely on the ground that the Constructed building is an immovable property, it is not relevant in respect of credit of inputs service on Construction - This issue has been considered in various judgment of Tribunal such as Navaratna S.G.Highway Prop Pvt. Ltd. - 2012-TIOL-1245-CESTAT-AHM wherein it was held that the inputs Credit on the Construction Service cannot be denied on the ground that the constructed building is an immovable property - Impugned order is unsustainable, hence, the same is set aside: CESTAT

- Appeal allowed : AHMEDABAD CESTAT

2018-TIOL-3694-CESTAT-BANG

CX - Assessee is engaged in manufacture and clearance of excisable goods like cables and connectors - During audit, certain irregularities and discrepancies were noted and thereafter SCN was issued to assessee for taking irregular CENVAT credit with regard to courier service as well as on rent paid on job workers premises - Commissioner (A) has allowed the appeals of assessee on merits but still remanded the matter back to original adjudicating authority for de novo adjudication which is not legally justified because the Revenue has not filed appeal against the impugned order on merit - The courier service availed by assessee fall in the definition of input service as contained in Rule 2(l) of CCR, 2004 - The second issue is denial of CENVAT credit on rent paid on job workers premises - Here also, Commissioner (A) has allowed the appeals on merits but still remanded the matter back to original authority for de novo adjudication - This issue has already been decided in assessee's own case in their favour for period September 2010 to September 2011 by Tribunal - CENVAT Credit on rent paid on job worker premises has been allowed - Further, the rent paid is essential service directly in relation to manufacture and once the Commissioner (A) himself allowed it on merit, then thereafter remanding the case back to the original aurhority is not legally sustainable - Therefore the impugned order is set aside: CESTAT

- Appeal allowed : BANGALORE CESTAT

2018-TIOL-3693-CESTAT-BANG

CX - The assessee manufactures Flush Doors, Window Frames/Door Frames & Door Shutter & availed Cenvat credit on various capital goods during the relevant FYs - It also availed depreciation on value of capital goods which represented 50% of credit in respect of that part of the capital goods & which represents the amount of duty paid on them - The assessee then availed depreciation u/s 32 of the Income Tax Act on such capital goods - The Department claimed that the assessee was ineligible to avail Cenvat credit since it did not inform the inform the Department that it had claimed depreciation u/s 32 nor did it reverse 50% of credit irregularly availed until being pointed out - Duty demands were raised u/r 14 of CCR 2004 r/w proviso to Section 11A(1) of the CEA 1944 with interest & penalty.

Held: It is seen that this issue was raised during internal audit but nonetheless, the SCN for the period 2004-07 was issued near the end of 2010 - Hence the entire demand is barred by limitation: CESTAT (Para 1,5)

- Assessee's appeal allowed : BANGALORE CESTAT