2019-TIOL-432-CESTAT-MUM + Case Story

ST - BAS - The owner of the vehicle delivers the property (car) and receives the sale price from the dealer, so the transaction is a sale - There is no doubt about the second transaction: the dealer sells it to another person after refurbishing it - In other words, "it becomes totally a transaction of purchase and sale of old vehicles" - The dealer refurbishing, repairing the vehicle as its owner is not a service rendered by it to any other person - allegation that the vehicles provided by or belonging to their clients/ customers would fall under subordinators clause (i) Section 65 (19) of the Finance Act of 1994 viz. under Business Auxiliary Service and treating the difference between the sale price for the old cars and the purchased price of the new ones as remuneration for the service rendered and raising service tax demand is not tenable in view of Kerala High Court decision dated 07.07.2017 - 2017-TIOL-1339-HC-KERALA-CX : CESTAT [para 4]

- Appeal disposed of : MUMBAI CESTAT

2019-TIOL-431-CESTAT-HYD

ST - The assessee provided "cleaning services" to various Buildings of Indian School of Business - From 16.06.2005 a separate service of "cleaning activity" was introduced in Service Tax Act, and the assessee took registration and had been paying service tax under protest until December, 2007 - They also filed refund claims for service tax paid from 1st April, 2007 to 30th November, 2007 on the ground that cleaning services were provided to an educational institution and hence they are not liable to service tax - Same was rejected - Whether the buildings of Indian School of Business can be considered as Commercial Buildings or not and consequently, the cleaning services rendered to them are taxable services or otherwise - It is not in doubt that Indian School of Business is registered as a company under Companies Act and is engaged in business of teaching management - This activity of Indian School of Business does not make it a non-commercial institution; it is a commercial institution engaged in business of providing management education - They would have been covered under the Commercial Training and Coaching Services but for the exclusion clause therein - There is no such exemption as far as cleaning activity rendered by assessee is concerned - Therefore, no reason found to hold that the cleaning activity rendered by assessee is excluded from the scope of service tax: CESTAT  

- Appeals rejected : HYDERABAD CESTAT

2019-TIOL-430-CESTAT-AHM

ST - This appeal has been filed by M/s Saurashtra Cricket Association against confirmation of demand of Service Tax and imposition of penalties - The assessee is admittedly paying taxes under head ‘sale of space or time for advertisement' for the activities in period subsequent to the period under dispute - Their sole difference is that M/s. SFIL had paid tax on entire amount received by them under the head of ‘Advertising Agency' and the value for which these proceeding has been initiated are already included in following for which SFIL has claimed to have discharged the liability - The argument is based on the certificate given by financial Controller of Frontiers Group (India) Pvt. Ltd. to the effect that the Frontiers Group (India) Pvt. Ltd. had already discharged the service tax liability on the Revenue realized by them - The certificate nowhere states that they have discharged the liability on entire amount received by them without any reduction on account of any expenses/abatements - The certificate is issued by Frontiers Group (India) Pvt. Ltd. while the assessee had sold the right to M/s Sports Frontier (India) Pvt. Ltd. - The two entities are apparently different - The entire defense of assessee fails - The appeal in so far as it relates to demand of service tax for sale of space or time to M/s SFIL is upheld - The next issue relates to payment of Service Tax in respect of Revenue collected by printing advertisement behind the tickets - Tickets by no means can be considered as books by definition - No merit found in the argument of assessee and the demand in respect of printing of advertisement behind tickets is upheld - The next issue related to imposition of penalties - Assessee has sought to argue that matter is not free from doubt and, therefore, no penalty under section 76 should be imposed - No merit found in the argument - The law laid down is very clear and there is no scope for interpretation - The penalty under section 76 is also sustained: CESTAT  

- Appeal dismissed : AHMEDABAD CESTAT

2019-TIOL-429-CESTAT-DEL

ST - The assessee is a Government of Rajasthan Undertaking and providing General Insurance Services to various departments of State Government - During audit, it has been detected that the assessee have been availing Cenvat Credit of Service Tax paid by them on re-insurance policies taken by them for making a cover for the insurance contract entered by them as an output service provider - The department has entertained a view that insurance and re-insurance are two separate contracts and same are independent of each other - There is another demand against assessee on the ground that they have wrongly adjusted the excess Service Tax paid by them in a particular month towards service tax liability in their subsequent periods in violation of Rule 6(3) of Service Tax Rules, 1994 - So far as availment of Cenvat Credit of Service Tax paid by assessee on the premium of re-insurance taken by them for providing insurance service to their customers, matter is no longer res integra as it has already been decided by Tribunal and High Court of Karnataka in case of PNB Metlife Insurance Co. Ltd. - 2015-TIOL-1097-HC-KAR-ST - In view of the same, assessee has rightly availed the Cenvat credit of Service Tax paid by them for the policies taken as re-insurance of the output service insurance provided by them - Coming to the second demand, Tribunal is not a forum to verify the authenticity of claims of assessee but if any credit of Cenvat were taken by assessee in a particular month as per provisions of Cenvat Credit Rules, they are without any hindrance entitled to utilize the same in the subsequent months - If any excess payment of service tax has been made by assessee, they are certainly entitled to make adjustment of same in their liability of subsequent months as per provisions of Service Tax Rules, however, this only needs meticulous verification of challans / payments and ST -3 returns at field level - Therefore, matter is remanded to original adjudicating authority only with regard to the second demand: CESTAT

2019-TIOL-318-HC-AHM-CX

CX - The assessee-company availed cenvat credit on certain input goods & services during the relevant period - The Department denied such credit availment, placing reliance upon Rule 9(1)(bb) of CCR 2004 - The assessee claimed that Rule 3 of CCR 2004 did not disqualify a claimant from availing credit if additional tax becomes recoverable from the service provider on account of non-levy or non-payment or short-levy or short-payment of tax on account of fraud, collusion & wilful mis-statement or suppression of facts or contravention of the provisions of Finance Act 1994 - The assessee also claimed that Rule 9 relates only to documents & accounts - Therefore, provision can be made only in respect of the nature of documents & accounts based on which cenvat credit can be taken - Thus the assessee claimed that Rule 9(1)(bb) was ultra vires of Section 37 of the CEA 1944 & the Finance Act 1994.

Held: The issues raised require consideration - Issue Notice as to Interim relief returnable on 13th March, 2019 - In the interim period, the Revenue is refrained from taking any coercive steps against the assessee: HC

2019-TIOL-428-CESTAT-DEL

CX - The assessee-company, engaged in manufacturing chewing Tobacco, surrendered its registration during the relevant period - It then filed two refund claims, on grounds that it had operated FFS Pouch Packing Machines & that the production from such machines was stopped - It was further claimed that Cenvat credit lay unutilized in the books of accounts - The Department denied such credit on grounds that the unused credit had lapsed - On hearing the assessee, the adjudicating authority held that the refund claim is not admissible under the Act - Such rejection of refund was sustained by the Commr.(A).

Held: The issue to be settled is as to whether the assessee can claim refund of unsued credit lying in balance upon closure of unit & about which the assessee has informed the Department - Considering the mandate of Rule 16 of CCR 2004, it is seen that the provisions of CCR 2004 are applicable to the present case - Considering the Tribunal's decision in Delphi-TVS Diesel Systems Ltd. Vs. CESTAT, Chennai it was held therein that rules being subordinate legislation cannot prescribe any condition different from those mentioned in the Act - It also held that rules could not occupy some field already occupied by statute - Considering such findings, the unutilized credit merits being refunded back to the assessee - There are many precedent cases which state that Cenvat credit lying with the appellant is also a duty and cannot be treated separately as compared to the Revenue in PLA account - Thus the assessee is entitled to refund of the Cenvat credit lying unutilised at the time of closure of factory: CESTAT (Para 2,9)

2019-TIOL-427-CESTAT-BANG

CX - The assessee is working under 100% EOU scheme holding private bonded warehouse and sought for de-bonding of indigenous capital goods and raw materials - It was observed that in respect of these warehoused goods, validity period had expired and assessee had not sought for extension of warehousing period - It appeared that they violated the provisions of Section 72(b) of Customs Act, 1962 - In this connection, SCN was issued to assessee - In view of Circular 7/2005-Cus , once the warehousing license of assessee is renewed up to 2014 as shown by assessee, then consequently as per the above said Circular, bonded warehousing period has automatically renewed up to 5.7.2014 and at the time of de-bonding, both the licenses were valid and in existence and therefore, demanding the duty and imposing penalty is not sustainable in law and therefore, same is set aside: CESTAT