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Finance Bill Proposes mandatory pre-deposit of duty or penalty or both before filing of AppealBudget 2014-15 : Sale of space for advertising has been made taxable except for print media.Budget 2014-15 : Radio Taxis are now taxable.Budget 2014-15 : Education : The definition of Auxiliary Education Services has been scraped.Budget 2014-15 : Works Contract : 2 slab rates prescribed in place of earlier 3 slabs.Budget 2014-15 : E-payment of Service tax is being made mandatory with effect from 01.10.2014.Budget 2014-15 : POPS: Definition of intermediary is being amended to include the intermediary of goods in its scope.

Case Laws
STO 2013 CESTAT 1411
[Date of Order: 2013-12-31]

Service Tax: Management, maintenance or repair" service; and renting of its immovable property: Demand: The contention of the appellant on renting of immovable property is that, during the relevant period, there was considerable ambiguity whether renting of immovable property was a taxable service and, therefore, neither were service tax returns filed nor was the applicable service tax remitted. This contention does not commend acceptance. Legislative dynamics including the retrospective amendment to Section 65(105)(zzzz) and the decision of the Full Bench of the Delhi High Court in Home Solutions Retails (India) Ltd. vs. Union of India STO 2011 Del 468 establish clearly that renting of immovable property was always a taxable service, even prior to the Finance Act, 2010.(Para 3).

Management, maintenance or repair" service: In the light of the recent decision of the Delhi High Court in G.D. Builders & Others vs. Union of India STO 2013 Del 1630, it is clear that wherever there are complex transactions including components of service and sale of goods (actual or deemed), the taxable value for levy of service tax would be only the component of service but excluding the component of sale of goods. Accordingly, on this interpretation of the provisions of Section 67 the value of goods sold or deemed to have been sold, requires to be excluded from the taxable value for computation of service tax liability. Consequently, provisions of Notification No. 12/2003-ST dated 20/06/2003 merely explicate the inherent intent of Section 67 of the Act. Appellant is entitled to claim exclusion of the value of the goods and raw materials claimed to have been sold to the recipient of the service as part of the management, maintenance or repair agreements and works executed in pursuance thereof.(Para 6,7,8).

Appeal allowed by way of remand.

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STO 2013 CESTAT 1633
[Date of Order: 2013-12-31]

Service Tax: Commercial or Industrial Construction Service'(CICS for short) and Erection, Commissioning or Installation service' (ECIS for short): Scope and liability: For the period prior to 01/06/2007 while the petitioner contends that the services provided ought to be classified as 'Commercial or Industrial Construction Service'(CICS for short) enumerated in Section 65(105)(zzq) read with Section 65(25b) of the Act, Revenue proceeded and the adjudicating authority assessed the services as falling within the taxable service enumerated in Section 65(105)(zzd) read with Section 65(39a) of the Act viz. 'Erection, Commissioning or Installation service' (ECIS for short).(Para 3).

Classification during period before 01/06/2007: Sub-clause (b) of Section 65(25) enumerates construction of pipeline or conduit as falling within the ambit of CICS. Division Bench of this Tribunal in Indian Hume Pipe Co. Ltd. Vs. CCE, Trichy STO 2009 CESTAT 950 had occasion to consider whether undertaking construction of a pipeline for the Government of Tamil Nadu falls within CICS or ECIS. The Tribunal concluded that the nature of the contract in issue involved putting together parts of pipeline, pipe by pipe, bolt by bolt, weld by weld until it becomes one whole and is therefore not an activity falling within ECIS, but one clearly falling under CICS. In para 4 of this judgment, the Tribunal concluded that pipeline could not, be considered as part of a plant, equipment or machinery and the appellants could not be held to be undertaking ECIS. Considering the issue whether installation of sumps, pump sets etc. as part of the contracted work would bring it within the scope of EClS, the Tribunal concluded that as these works are only for regulation and monitoring flow of water in the pipeline, these components of works were components of the generic activity of construction of pipeline. Prima facie, the works executed by the petitioner more appropriately fall within sub-clause (b) of Section 65(25b) of the Act and are therefore CICS. (Para 5,6).

Classification during period subsequent to 01/06/2007: Since under sub-clause (b) of Section 65(105)(zzzza) of the Act (for the period subsequent to 01/06/2007), inter alia construction of pipeline primarily for the purposes of commerce or industry falls within the ambit of the definition of works contract service and services provided by the petitioner under the several agreements with the State Government were for irrigation or drinking water supply purposes, we are prima facie of the view that these not being commercial or industrial purposes are excluded from exigibility to service tax, as falling outside the purview of the taxable service. Hence pre-deposit waived.(Para 9).

Stay granted.

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STO 2013 CESTAT 1634
[Date of Order: 2013-12-31]

Service Tax: Availing of credit in excess of the 20% cap during the period 2005-06 to 2007-08: Appellant did not maintain separate accounts for the common inputs used in or relation to the providing of taxable and exempted output services: Scope: As regards availing of credit in excess of the 20% cap during the period 2005-06 to 2007-08, this Tribunal has already taken a view in the DHL Logistics Pvt. Ltd. case Vide Order No.A324/13/CSTB/C-I dt. 06/02/2013 and the decision of this Tribunal in the case of Foods Fats and Fertilisers Ltd. Vs. CCE, Guntur CEO 2009 CESTAT 890, that what is required to be paid by the appellant is only the interest liability from the date of taking of the credit till 01/04/2008, when the appellant became eligible for utilization of the credit.(Para 5.1).

For the period 2008-09 to 2009-10, the CCR as it stood at the relevant time envisaged maintenance of separate accounts for the receipt and use of input services for the provision of exempted services and taxable output services and credit of input service tax could be taken only in respect of taxable output service under Rule 6(2)(b)(iii) & (iv). If the service provider did not opt for maintenance of separate accounts, then he was liable to pay an amount equal to 8% of the value of exempted services or pay an amount as determined under Rule 6(3A). For payment under the said rule, an option had to be exercised from a specified date and detailed procedure as provided therein had to be followed. It is an admitted fact that the appellant did not maintain separate accounts in respect of common input services used in the provision of exempted and taxable services nor did they opt to make any payment under the procedure prescribed under Rule 6(3A). Therefore, the appellant was required under the statue to pay a sum @ 8% of the value of the exempted service.(Para 5.2).

Thus, the appellant has not made out any prima facie case for grant of complete waiver

Pre-deposit ordered.

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STO 2013 CESTAT 1594
[Date of Order: 2013-12-31]

Construction Service: Demand: Appellant has executed around 40 contracts with their clients. Commissioner has examined only one contract and has held that they have also provided services of interior decorator He has further presumed that in all other contracts, the appellants have provided such services and has confirmed the demands in respect of all the contracts without verifying and examining such other contracts: Matter remanded.

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STO 2013 CESTAT 1319
[Date of Order: 2013-12-31]

Refund of Cenvat Credit: Notfn.No.5/2006-CE: Refund restricted from 14.03.2006 when the said notification came wrong: Even for earlier period refund admissible: Rule 5 of CCR, 2004 nowhere stated that refund would be admissible only from 14.03.2006.

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STO 2013 CESTAT 1651
[Date of Order: 2013-12-30]

Stay: Extension beyond 365 days

: Position after amendment to Section 35C(2A) of the Central Excise Act, 1944: period of stay is extended till disposal of the appeal in as much as the appeal could not be decided because there is a huge pendency of the appeals before this Tribunal and the delay is inevitable and pendency of the appeal is not due to any fault of the applicant.

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STO 2013 CESTAT 1625
[Date of Order: 2013-12-30]

Service Tax: Delay in filing of appeal: Condonation: Scope: It is submitted that appellants have received the order on 14.02.2013. As they have not received the order before that, and the case law relied by the appellant in Wellman Hindustan Ltd. CEO 2009 CESTAT 898 where the copy of the order was tendered physically and same was received by someone. Same is the contention of the appellant the matter in hand, and in support of the same, they have filed an affidavit. When an affidavit has been filed by the appellant and same has not been contravened by the department, affidavit is having an evidential value. Accordingly, I hold, that appeal is filed by the appellant within time. Accordingly, impugned order is set aside, and matter is remanded to the Commissioner (Appeals).(Para 7).

Appeal disposed off.

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STO 2013 CESTAT 1203
[Date of Order: 2013-12-30]

Demand: Services in the nature of Information Technology were excluded from the ambit of Business Auxiliary Service: On limitation, all the information was available to the department from April, 2009 onwards and extended period was already invoked in earlier show cause notice: Prima facie case on limitation made out: Pre deposit waived.

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STO 2013 CESTAT 1414
[Date of Order: 2013-12-30]

Service Tax: Site Formation and Clearance service: Activity of drilling, blasting, excavation, loading, transport, spreading, dumping etc of over-burdens at the open cast mines: Taxable value whether shall include value of diesel and explosives supplied free by the service recipient: Scope: There was a short-remittance of service tax that arose as a consequence of the appellant failing to disclose the value of diesel and explosives supplied free by the service recipient M/s. SCCL, in the ST-3 returns filed and consequently then occurred an under-remittance of service tax. The entire liability assessed including interests and penalties arise on the basis of this fundamental assumption of Revenue, that the value of diesel and explosives supplied free of charge by M/s. SCCL should constitute part of the gross consideration received by the appellant for having provided the taxable service. The scope of Section 67 of the Act was considered by the Larger Bench of the Tribunal in M/s. Bhayana Builders (P) Ltd. Vs. C.S.T., Delhi, reported in STO 2013 CESTAT 743 LB. An identical issue as presented in the appeal was also considered by a Ld. Divisional Bench of the Tribunal in Karamjeet Singh & Co. Ltd. Vs. C.C.E., Raipur, reported in STO 2013 CESTAT 792, in which the Tribunal following the judgement of the Hon'ble High Court of Delhi in Intercontinental Consultants & Technocrats Pvt. Ltd. Vs. Union of India, reported in STO 2012 Del 1148 held that the value of diesel supplied free of cost by a service recipient to the appellant/service provider for providing the taxable "site formation and clearance, excavation and earthmoving and demolition" service would not be a component of the gross value charged for the service provided for computation of tax under Section 67 of the Act.(Para 4,5).

Appeal allowed.

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STO 2013 CESTAT 1577
[Date of Order: 2013-12-30]

Business Auxiliary Service: Demand: Stay: Purchase and sale of coal by the appellants: Not a service prime facie: Stay granted from pre deposit.

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STO 2013 CESTAT 1602
[Date of Order: 2013-12-30]

Condonation of delay: Delay within extended period: Application not filed before Commissioner (A): Dismissal of appeal on limitation ground: Matter remanded as defect curable.

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STO 2013 CESTAT 1353
[Date of Order: 2013-12-27]

Service Tax: Availed taxable input services for export viz. courier agency, clearing & forwarding agency, inspection charges and banking and financials services etc.: Refund claim for the period 1.7.2011 to 31.7.2011: Scope and admissibility: Notification No. 17/2009-ST dated 7.7.2009 provides exemption to specified services as mentioned therein and also indicates the condition to be fulfilled by the exporter for claiming the benefit of the said Notification. Further, the exporter can claim the refund of service tax paid on specified services used for export of the goods after fulfilling the conditions of the Notification. The adjudicating authority has rightly allowed the refund claim and the appellate authority has erred in disallowing the same without recording any specific finding. (Para 2,6).

Appeal allowed.

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STO 2013 CESTAT 1182
[Date of Order: 2013-12-27]

Adjustment of excess payment: Adjustment held to be wrong, but they are entitled for the refund: Appeal allowed with consequential relief.

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STO 2013 CESTAT 1656
[Date of Order: 2013-12-27]

Cenvat Credit: Liability to discharge service tax: Issue whether the appellant, who are liable to pay the service tax on the services received by them from offshore service provider under reverse charge mechanism of Section 66 A of Finance Act, 1994 read with Rule 2(1)(d)(iv) of Service Tax Rules, 1994, could pay the service tax by utilizing the cenvat credit: Issue decided in favor of trade by various High Courts.

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STO 2013 CESTAT 1600
[Date of Order: 2013-12-27]

Demand: Off short service: Appellant is a company located in Korea and have no branch or any establishment in India. In respect of a taxable service provided by an offshore service provider not having any branch office or establishment in India to a person in India, service tax could be charged from the service recipient in India w.e.f. 18.4.2006. But neither during the period prior to 18.04.06 or during period w.e.f. 18.04.06, there was any provision to charge service tax from an offshore service provider in respect of taxable service provided by him to a person in India: Demand set aside.

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STO 2013 CESTAT 1159
[Date of Order: 2013-12-27]

Cenvat credit: Demand: Credit of service tax paid on brokerage, air travel booking transportation for employees etc in dispute: On the strength of various decisions, credit admissible: Departmental appeal rejected.

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STO 2013 CESTAT 1333
[Date of Order: 2013-12-26]

Cenvat Credit: Input Service: There is no such requirement as far as the input services are concerned that the same should have been received in the manufacturing premises and the premises where received should be registered one.

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STO 2013 CESTAT 1615
[Date of Order: 2013-12-26]

Service Tax: Goods Transport Agency services: Delivary of goods to SEZ unit: Scope and liability: The appellant cleared his final product for delivery to the purchasers in SEZ and discharged the said obligation by engaging transporters. The law is settled that any clearances made to SEZ, no tax or duty is leviable and even if there is such levy, the discharger is eligible for refund of such Service Tax. There is no dispute as to the clearances of the goods to SEZ, the question of discharging Service Tax on such services, does not arise. Pre-deposit waived(Para 4,5).

Stay granted.

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STO 2013 CESTAT 1616
[Date of Order: 2013-12-26]

Service Tax: Service Tax liability on the amount received for fabrication work for rendering the services of erection, commissioning and installation: Scope: The appellant had fabricated the structures before utilizing the same for rendering the services for laying pipelines. Stay Order No.M/13263 to 13265/WZB/AHD/2013, dt.10.07.2013 covers an identical issue as also the ratio laid down by Larger Bench in the case of Mahindra & Mahindra Ltd - STO 2005 CESTAT 750 as to what would amount to manufacture and whether the fabrication of structure would amount to manufacture. The appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved. (Para 3).

Stay granted.

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STO 2013 CESTAT 1652
[Date of Order: 2013-12-26]

Transportation of Goods: Cargo Handling Service: Since in this case, activity of the Respondent is handling of the goods in the factory or godown or removing of garbage, the same cannot be said to be an activity adjunct to transportation of the goods. Therefore, the respondent's activity would not be covered by cargo handling service as defined under Section 65(23) as he has not handled any cargo i.e. the goods meant for transport.

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