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Lok Sabha Polls 2014: BJP Promises GSTAccording to Finance Ministry about 8k Cr Service Tax Evasion Detected During 2013-14 Court rejects bail of Directors of Indore Based Coaching Institute in the case of Evasion of Rs 1.5 Crores of Service TaxExemption from Service Tax on Loading, Unloading, Storage of RiceExcise Duty for Large and Mid-Segment Motor Cars Cut to 20%Service Tax Defaulters will be Prosecuted: Chief Commissioner Visakhapatnam ZoneIndirect tax collection falls short of target in Odisha

Case Laws
STO 2013 CESTAT 1168
[Date of Order: 2013-10-10]

Refund: Port Charges: Royalty charges refund denied on the ground that it has no connection with the Port Charges: When the department has accepted service tax on these amounts under port services, at the time of considering refund of the service tax paid on port services to the service recipient, the Jurisdictional Central Excise authorities cannot seek to reopen the assessment of service tax at the end of the service provider.

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STO 2013 CESTAT 1465
[Date of Order: 2013-10-10]

Construction of Construction and Residential Complex: Works Contract: Benefit of Notification No. 1/2006-ST when service recipient supplied free materials: Applicants already paid substantial amount: Considering that issue of free supply material decided in favour of trade by Larger Bench and issue of Works Contract referred to Larger Bench: Pre deposit for balance amounts waived.

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STO 2013 CESTAT 1482
[Date of Order: 2013-10-09]

Service Tax: Mobile Telephone Services: Whether Cenvat credit for angles, channels etc., used in the construction, erection, and installation of towers, for shelters and for pre-fabricated structures can be taken considering these goods as 'capital goods': Scope and admissibility: Many appellants have been before the Tribunal and obtained waiver of pre-deposit of dues for admission appeals on identical issue. In one appeal finally disposed of by the Tribunal in Bharati Airtel Ltd., and Others Vs CST reported in STO 2012 CESTAT 1 (Tri-Mum.), the Tribunal disallowed the credit. Against this, the appellants went in appeal-to Bombay High Court and Bombay High Court stayed the order vide order dated 28-03-2012 in Central Excise Appeal (L) No. 35 of 2012 and no deposit could be collected so far. Subsequent to the said order of the Tribunal, the Bombay Bench of the Tribunal in the case of M/s. Essar Telecom Infrastructure Pvt. Ltd. Vs Commissioner of Service Tax, Mumbai -I vide Order No. S/790/2013/CSTB/C-l dated 15.05.2013 directed pre-deposit of part of the amount confirmed against that party. This order was also stayed by the Bombay High Court vide order dated 02.07.2013 in Appeal No. C/88/2013 along with orders in Central Excise Appeal No. 73/2012 and 119 of 2012 filed by M/s. Bharati Airtel Ltd., before Bombay High Court. Thus, the position is that no part of credit taken by any assessee similarly placed and who has come before the Tribunal or Courts has been recovered so far.(Para 2).

Stay granted.

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STO 2013 CESTAT 1534
[Date of Order: 2013-10-09]

Service Tax: Refund: Absence of nexus between the input services and the final product: Refund of accumulated CENVAT credit under Rule 5 of CENVAT Credit Rules 2004: Scope and admissibility: The claim is correct and therefore the CENVAT credit taken by the appellant is in order. Once CENVAT credit taken is in order, the benefit of refund of accumulated credit would be available to the appellant in view of the fact that the appellant could not have utilized the same, for payment of service tax on the output service and on this aspect there is no dispute. As regards the invoices, appellant should be given another opportunity to produce the details before the original authority so that the authority can satisfy himself about the correctness of the credit taken and allow the refund. The original adjudicating authority is required to apply the correct formula and work out the correct refund amount. (Para 2,4,5).

Appeal allowed by way of remand.

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STO 2013 CESTAT 1432
[Date of Order: 2013-10-09]

Service Tax: Demand to Indian Railways for the period prior to the 1st day of October, 2012: Scope and liability: By insertion of Section 99 by the Finance Act, 2013, the present demand on the appellant is not sustainable. The relevant portion of Section 99 inserted by the Finance Act, 2013, is reproduced below:-

"99. (1) Notwithstanding anything contained in Section 66, as it stood prior to the 1st day of July, 2012, or in Section 66B, no service tax shall be levied or collected in respect of taxable services provided by the Indian Railways during the period prior to the 1st day of October, 2012.

(2) No refund shall be made of service tax paid in respect of taxable services provided by the Indian Railways during the said period prior to the 1st day of October, 2012".

In view of the insertion of the above section by the Finance Act; 2013, the demand of tax prior to 1st October, 2012 is not sustainable.(Para 4,5).

Appeal allowed.

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STO 2013 CESTAT 1433
[Date of Order: 2013-10-09]

Service Tax: Construction of Residential Complex: Circular No.108/2/2009/ST, dated 29.01.2009: Scope and liability: The applicant was the Power of Attorney holder for the land on which construction was made. The applicant entered into contracts with the prospective customers, needing flats, from whom money was received for construction and they undertook the activity of construction of residential flats. The undivided share of the land was registered in the name of the prospective buyers and upon construction of flats, constructed flats were handed over to the prospective buyers. Revenue submits that the above referred circular would apply only in case of a person who was land owner, who constructed flats in which case there was no service involved because the activity would be for own benefit. In this case, the applicant was not the owner of the land and he rendered service to the prospective buyers of flats and, therefore, demand is sustainable. Amount already paid is sufficient as pre-deposit(Para 2,3).

Stay granted.

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STO 2013 CESTAT 1234
[Date of Order: 2013-10-08]

Business Auxiliary Service: Applicants are providing service to the Jharkhand State Electricity Board, which comprises meter reading, preparation of monthly energy bill, delivery of the bills to customers, preparation and supply of consumer ledger etc., which, prima-facie, fall under the category of "Business Auxiliary Service": Directions issued for partial pre deposit.

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STO 2013 CESTAT 1309
[Date of Order: 2013-10-08]

Maintenance or Repair: Explanation operates like a charging provision from 1-6-2007 incorporated into law by Finance Act, 2007. This explanation cannot be read as retrospective in nature following the ratio laid down in Martin Lottery case STO 2009 SC 857 and the appellants shall not be brought to the ambit of tax for the period 9-7-2004 to 30-9-2005 when the explanation was inserted to the above section w.e.f. 1-6-2007 by Finance Act of 2007.

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STO 2013 CESTAT 1311
[Date of Order: 2013-10-07]

Management, Maintenance or Repair Service: Maintenance collected from flat owners for providing maintenance is in the nature of reimbursable expenses: Partial stay granted.

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STO 2013 CESTAT 1518
[Date of Order: 2013-10-07]

Service Tax: Receipt of services from foreign service providers connected to the marketing and promotion in respect of orders received through appellants Dubai office: Business Auxiliary Services from the Foreign Service Provider: Waiver of pre-deposit: Scope and liability: From the Teaming Agreement it is clear that the agreement is made, between the applicant and the foreign service provider. Therefore it cannot be said that the Foreign Service provider has provided service to Dubai office and not to the present applicant. Hence in view of the provisions of Section 66A of the Finance Act, the applicants are liable to pay service tax in respect of the services received from the foreign service provider on reverse charge mechanism.(Para 6.1).

Pre-deposit ordered.

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STO 2013 CESTAT 1248
[Date of Order: 2013-10-07]

Business Auxiliary Service: Demand: Stay: Applicants are promoting products manufactured by M/s. Elektroschmelzwerk Kempten GmbH, Munich, Germany in India: In similar circumstances, in Eldyne Electro Systems Pvt. Ltd., after analyzing the principle of law laid down by this Tribunal in Mapal India Pvt. Ltd. and also taking the Board Circular No.111/5/2009-ST dated-24/2/2009 Tribunal granted waiver to the applicant. Following the said precedent decision, recovery stayed during the pendency of the appeal.

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STO 2013 CESTAT 1429
[Date of Order: 2013-10-07]

Service Tax: Cenvat Credits were taken without any specific document showing actual amount of tax paid: Scope and admissibility: Essential requirement of proof of payment of tax mentioned in the proviso to Rule 9(2) has not been satisfied in respect of the credits disallowed by the adjudicating authority. There has to be a primary document showing payment of service tax to the exchequer but the applicant failed to produce it.(Para 3,4). There has to be a primary document showing payment of service tax to the exchequer but the applicant failed to produce it.

Pre-deposit ordered.

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STO 2013 CESTAT 1559
[Date of Order: 2013-10-07]

Service Tax: Applications for extension of stay: In the light of the ratio of the larger bench decision in IPCL vs. CCE, Vadodara TO 2004 CESTAT 368, extension of stay allowed.

Applications for extension of stay allowed.

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STO 2013 CESTAT 1128
[Date of Order: 2013-10-07]

Cenvat Credit: Credit availed on the documents not prescribed under Rule 9 of Cenvat Credit Rules, 2004: Directions issued for partial pre deposit.

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STO 2013 CESTAT 1297
[Date of Order: 2013-10-07]

Business Support Service: Activity of collection and removal of Fly ash as per rate of the order of Government of Tamil Nadu would not constitute "infrastructural support service" under the definition of "Support Service of Business or Commerce": Government of India, Ministry of Environment and Forests issued Notification dated 14.9.1999 to the effect that Fly ash should be supplied free of cost. Subsequently, by notification dated 6.11.2008, issued by Ministry of Environment and Forest, Thermal Power Stations are permitted to sell Fly ash to the user agencies. It makes it clear that the consideration received by the appellant from the cement and asbestos sheet companies for supply of Fly ash seems to be for sale of fly ash: It is not for any service provided to the persons taking delivery of Fly ash, notwithstanding the name under which, it is collected. Hence, the demand of service tax along with interest is not sustainable.

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STO 2013 CESTAT 1025
[Date of Order: 2013-10-07]

Early hearing: Revenue involved more than Rs. 8 crore: Application allowed.

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STO 2013 CESTAT 1484
[Date of Order: 2013-10-04]

Service Tax: Consulting engineer : Appellant collected service tax from his clients but did not pay service tax to the exchequer and did not file ST-3 Returns: Penalty: Scope and liability: This is a case where the appellant had collected service tax from his customer and kept the money with him and did not file returns hence benefit of leniency by waiving the total penalty imposed cannot be granted to the appellant. Since appellant had paid tax amount along with interest before issue of show cause notice, the adjudicating authority should have brought to the notice of the appellant the option available for payment of 25% of tax demand as penalty under section 78 of Finance Act 1994 for final closure of the matter. Since this was not done by the lower authorities the decision of the Hon'ble Delhi High Court be followed in the case of KP Pouches (P) Ltd. Vs UOI CEO 2008 Del 64 wherein the court considered it proper to extend the benefit of paying 25% of tax demand as penalty under section 78 in similar circumstances. Penalty imposed under section 77 is upheld.(Para 4).

Appeal partially allowed.

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STO 2013 CESTAT 1048
[Date of Order: 2013-10-04]

Demand: Removal of over burden and excavation of ore is undertaken for mining of ores only and activity does not fall under Site Formation and Excavation and Earth moving and Demolition service.

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STO 2013 CESTAT 1528
[Date of Order: 2013-10-04]

Service Tax: Tour operator service for the period 2000-02: Scope and liability: Penalties: The tour operator service comes into the scope of service tax with effect from 2.9.2997 and the same was exempted under Notification No. 52/98-ST Dated 18.07.1998 from payment of service tax. It is only with effect from 1.4.2000 the definition of 'tour operator' was amended and the present disputed period is with effect from 1.4.2000 to 2002. As the appellants were under the impression that the tour operator service is exempted from service tax vide Notification No. 52/98-ST Dated 18.07.1998, therefore there is no intention to evade payment of duty on the part of the appellants. Therefore, in view of the provisions of Section 80 of the Finance Act, it is not a case for imposition of penalties. However impugned demand sustained.(Para 6,8).

Appeals disposed off.

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STO 2013 CESTAT 1047
[Date of Order: 2013-10-03]

Photography Service: Respondents provided the service of preparation of "Mat Data Panchan Patra" [Election Photo Identity Card] (EPIC) to Election Office Lucknow (U.P.) and received service charges: Not covered under Photography Service: Departmental appeal dismissed.

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