ST - The assessee is engaged in providing taxable service on scientific and technical consultancy, it being declared as Institute of National importance on lines of IITs - During scrutiny of records of assessee, the Department observed that in addition to having income as fees collected from students, grants-in-aid received from Central Government and the income generated by providing consultancy work the assessee had been procuring services of CPWD in terms of an MOU for construction of hostel blocks, Sports Complex, academic block, literature hall complex, canteen, hospital and staff residential quarters in premises of assessee - The perusal of Notfns shows that any authority, which is set up by an Act of Parliament or is established by a Government is a Governmental authority and any services provided to a Governmental authority by way of construction, errection, commissioning, installation, even repair, maintenance, renovation or alteration of any civil structure are exempted from the purview of taxable services - The assessee is carrying out the function of imparting education and technical knowhow/consultancy but the service received from CPWD is that of construction of various civil structures - It becomes absolutely clear that the services received are not otherwise the activity of assessee themselves - Outsourcing thereof will not bring the service received under category of support service - Therefore, the adjudicating authority has formed a wrong interpretation of definition while holding the impugned services received as support services - Order to that extent is not sustainable - As regards to tax liability of assessee, since impugned period is the post negative list period, section 67 D is relevant - This provision excludes the services provided by a Government or a local authority from the ambit of taxability - Apparently the service provider herein is a Govt. authority, the services are not taxable - The adjudicating authority is held to have committed a mistake while ignoring the Notification - Confirmation of demand is therefore, an apparent mistake on the part of the adjudicating authority below - Once the demand is not sustainable, question of accruing interest and of imposition of penalty does not at all arise: CESTAT

- Appeal allowed: DELHI CESTAT

ST - The assessee is engaged in providing 'Stock Broker Service' - A SCN was issued to them alleging that they failed to file ST-3 returns within due time and proposing to demand the late fee, for not filing the returns, within the due time - The assessee submit that they could not file the returns electronically due to system failure and they had submitted the returns manually - In appeal paper book, assessee have produced screen shots of the returns filed by them manually - The said documents bear the signature of Superintendent of the jurisdictional authority, it can be thus seen that the assessee had filed returns manually, which was acknowledged by the department - Interestingly, in impugned order, Commissioner (A) has set aside the demand of late fee for period 10/2011 to 03/2012 and 04/2012 to 06/2012 - But, however, the late fee demand for period 07/2012 to 09/20112, 10/2012 to 03/2013 and 04/2013 to 09/2013 has been upheld - Tribunal do not find any reasoning made by lower authority as to why the late fee with respect to period 10/2011 to 03/2012 and 04/2012 to 06/2012 was allowed - The department having acknowledged the manually filed returns, ought to have taken steps to help or assist the assessee to solve the problem - Thus, the assessee cannot be found fault for the cause of delay in filing returns - The demand of late fee cannot be sustained for the period from 07/2012 to 09/20112, 10/2012 to 03/2013 and 04/2013 to 09/2013 also - The impugned order is modified to the above extent and set aside the demand of late fee for these periods also: CESTAT

- Appeal allowed: CHENNAI CESTAT

ST - The assessee is a market body for facilitating sale of flowers and has been constituted under Delhi Agricultural Produce Marketing Act, 1998 - For facilitating the traders/retailers in the business of purchase and sale of flowers, assessee have allotted land in Gazipur market yard which is known as flower marketing committee to various dealers/traders on the basis of a monthly licence fee - The Department has issued three SCNs to assessee entertaining a view that assessee have given the sheds/shops/phars on rent to various traders and the activity of renting of such immovable property is subject to service tax under category of renting of immovable property - As per the provisions of FA, 1994, the activity of rent of immovable property is specifically covered under Section 65 (105) (zzzz) - The assessee is a body which is not a local authority and therefore the exemption under Section 66D (a) is not available to them - Renting of shops/Phars is not the mandatory responsibility of assessee - The provisions of Section 66D (d) (iv) of FA, 1994 only provides when the agriculture land is used for agriculture or for its producers but not for shops which are used for carrying out business or commerce - The activity of renting of phars/tin sheds/shops for marketing/trading of flowers by the traders is taxable under category of renting of immovable property and therefore there is no infirmity in orders passed by subordinate authorities confirming the service tax on the amounts collected by assessee from various traders towards lease fee or rent - Now coming to the question of leviability of service tax under extended time proviso under Section 73 (1) of FA, 1994 as well as levy of penalty under Section 78 of Finance Act is concerned, the ingredients of intention to evade service tax are certainly missing in this case and there have been genuine confusion regarding leviability of service tax on rents collected by various agricultural produce marketing boards/committees in this regard - The Supreme Court judgment in case of Padmini Products is followed and hold that extended time proviso in this case is not legally invokable in this case - Penalty under Section 78 of FA, 1994 is also not invokable in this case - The appeals are therefore allowed by way of remand to the Original Adjudicating Authority: CESTAT

- Matter remanded: DELHI CESTAT

CX - The assessee filed the appeal before Tribunal and those appeals were disposed off by Tribunal, wherein the demand of duty was confirmed but on the issue of penalty, Tribunal reduced the penalty on assessee - Said order of reducing penalty was challenged by Revenue before High Court of Punjab and Haryana - The only issues raised by Revenue are that the application is not maintainable on the ground of limitation and that order of Tribunal has been merged with order of High Court as well as Apex Court - The issue of limitation has been dealt by Apex Court in case of Sunitadevi Singhania Hospital Trust 2008-TIOL-235-SC-CUS - On going through the said order of Apex Court, limitation will be applicable to the Tribunal for taking suo-moto action for rectification of mistake but the aggrieved party can file an application for rectification of mistake at any time but showing the reasons for causing delay that there has been injustice done to them by the order of this Tribunal - The said order has been followed by Karnataka High Court in case of Wipro Ltd. (Info Tech Group) 2012-TIOL-63-HC-KAR-CUS - The affirmation of said order of Tribunal by Apex Court is through a non-speaking order, therefore, the same cannot be held that the application for rectification of mistake is barred of limitation - Issue of limitation decided in favour of assessee.

As regards to merger of order of Tribunal with the order of High Court as well as Apex Court, said issue has been entertained by Apex Court in case of Kunhayammed 2002-TIOL-50-SC-LMT-LB , wherein the Apex Court laid down the guidelines to say that whether the order of this Tribunal merged with the order of Apex Court or the High Court or not - On going through the said guidelines, it is found that in this case Tribunal order was challenged by applicant before High Court and the High Court has dismissed their appeal but with the liberty to take appropriate remedy in accordance with law and the said order has been challenged before Apex Court which has dismissed their petition in limine - As per guide lines by Apex Court in the case of Kunhayammed, the order of this Tribunal does not merge with the order of Apex Court or High Court - Moreover, the High Court itself has given liberty to assessee to take appropriate remedy in accordance with law - Admittedly, on the issue of imposition of penalty for period prior to 28.09.1996, Tribunal has not given any finding, therefore, the order of this Tribunal is not correct, therefore, on the aspect of imposition of penalty prior to 28.09.1996, the issue is to be addressed by this Tribunal and only for the said issue, the order of this Tribunal dated 28.02.2012 is recalled - Considering the fact that the issue is pending before Tribunal since long, therefore, the matter is fixed for final hearing on 15.03.2018: CESTAT

- Appeal partly allowed: CHANDIGARH CESTAT

CX - The only issue to be considered is denial of CENVAT Credit on Tour Operator/Rent-a-Cab Service - The issue relating to Rent-a-Cab Service has already been addressed to and decided for the period prior to 01.04.2011 by the jurisdictional High Court in case of M/s. Turbo Energy Ltd. 2015-TIOL-629-HC-MAD-CX - The issue up to 01.04.2011 is no more res integra and therefore the impugned order is set aside to this extent - For the subsequent period i.e. up to 30.11.2011, assessee has taken a specific contention that there was no service availed post 01.04.2011 and that only the invoice was raised and the credit was availed subsequently - This requires factual verification - Assessee is required to establish its case on the lines before the adjudicating authority and if the assertion of assessee is found to be correct, then there is no question of denying the benefit - With this direction, issue is remitted back to the file of adjudicating authority to ascertain the correctness of plea and allow the same if found correct: CESTAT

- Matter remanded: CHENNAI CESTAT

CX - The assessee is engaged in manufacture of bulk drugs namely Paclitaxl and Irinotecan - They cleared the exempted goods in terms of Rule 6 of CCR, 2004 on payment of the amount of 10% of value of goods which was returned back to their factory - The assessee re-credited the amount to their Cenvat Account and subsequently, reversed the credit as per direction of Audit team - Thereafter, assessee claimed the refund of amount as debited from their RG 23A Part-I & Part-II Account - Commissioner (A) observed that the question of taking re-credit arises when the returned goods are cleared after process or as such from the factory - There is no provision under CER, 2002 for taking re-credit of returned goods at the time of clearance after re-processing of such goods - It is also observed by Commissioner (A) that reversal of credit or payment of amount under Cenvat Credit Rules is not payment of duty through Cenvat Credit - Therefore, provision of Section 11B and Rule 16 of Cenvat Credit Rules are not applicable - The Tribunal in case of S.P. Reshellers Private Limited 2006-TIOL-483-CESTAT-MUM on the identical issue rejected the Revenue appeal - Rule 57CC of erstwhile CER, 1944 is similar to Rule 6 of CCR, 2004 - The Tribunal in case of Mothersons Sumi Systems Limited observed that anywhere any amount wrongly credited, department cannot reduce refund on the ground that it is not provided under the statutory provisions of Refund - It is found that assessee erroneously debited the amount from their RG-23A Part-II account and on the basis of direction of officers who conducted the Audit - In such situation there is no reason to reject the refund claim - Accordingly, the impugned orders are set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT

CUSTOMS

2018-TIOL-3842-CESTAT-DEL