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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 1301
[Date of Order: 2013-10-21]

Renting of Immovable Property: Demand: Stay: Appellants contention that they were providing only warehousing service not supported by any evidence: Directions issued for pre deposit.

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STO 2013 CESTAT 1306
[Date of Order: 2013-10-21]

Demand: Stay: Tribunal passing order for pre deposit: Order challenged before High Court: High Court sets aside Order of Tribunal and remands the appeal: Matter remanded by Tribunal with directions that appellant to produce evidence such as contracts and other documents including running accounts, bills and returns filed with the sales tax in respect of the goods sold and supplied: Matter remanded.

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STO 2013 CESTAT 1489
[Date of Order: 2013-10-18]

Demand: Services provided to overseas clients are covered under Export of Service Rules: Tax not payable.

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STO 2013 CESTAT 1491
[Date of Order: 2013-10-18]

Penalty: Service tax delay in payment: Appellants believed their head office paid tax: Penalty partially set aside.

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STO 2013 CESTAT 1428
[Date of Order: 2013-10-18]

Service Tax: Security services to the Banks : Benefit of Notification No. 56/98-S.T dated 7.10,1998: Scope: As per the agreement the respondents are responsible for safeguarding the building of the bank along with the fixtures, fittings and equipments, cash, other securities etc. Therefore, it cannot be said that the respondents are providing security services in relation to safe deposit lockers or security of safe vaults. In view of this the benefit of notification is not available to the respondents.

Penalty: In respect of the imposition of penalties, Section 80 of the Finance Act provides that "Notwithstanding anything contained in the provisions of Section 76, Section 77 or Section, 78 no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure. In the present case the respondents are registered with the Revenue authorities as service provider and paying appropriate service tax. The issue involved in the appeal is in respect of interpretation on Notification. In view of this it is not the case for imposition of penalties.(Para 6, 6.1).

Appeal disposed off.

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STO 2013 CESTAT 1430
[Date of Order: 2013-10-18]

Service Tax: Information technology service during the period April 09 to March 10: Refund of Cenvat credit earned prior to date of registration: Scope and admissibility: They claimed refund of credit taken by them during the period April 09 to March 10 as per provisions of Rule 5 of Cenvat Credit Rules, 2004. The claim was rejected for the reason that the respondent had taken registration only in April 10 and therefore they could not have claimed refund for the period April 09. and March 10. Commissioner (Appeals) allowed the appeal relying on the decision of the Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions (P) Ltd. Vs CST- STO 2011 Kar 1118 wherein it was held that there is no ban on taking of credit on services received prior to the date of registration and consequently allowed the refund claim.(Para 1,4).

Revenue stay application rejected.

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STO 2013 CESTAT 1435
[Date of Order: 2013-10-18]

Service Tax: Interpretation of Notification No. 1/2006-ST dated 01.03.2006: Application for ROM: Scope: The issue involved in the present appeal is entirely different form the issue which stands considered by the Id. Member (Tech.) for passing the present order. In the Present order he has observed that the issue involved is interpretation of Notification No. 1/2006-ST dated 01.03.2006. If that be so, the appeal was not falling under the jurisdiction of Single Member Bench and the Id. Member should have placed the matter before Division Bench. This is not a case of simply recalling of the order on the ground of non-appearance of Id. Advocate. As per the Id. Advocate appearing for the appellant mistake has occurred in passing the said order. For all the above reasons, ROA should be placed before the same Bench who passed the order(Para 5).

Application for ROM allowed.

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STO 2013 CESTAT 1438
[Date of Order: 2013-10-18]

Refund: Cenvat Credit: Rule 5 of CCR, 2004: Credit taken for services received prior to the date of registration admissible as per judgment of Honorable High Court of Karnataka.

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STO 2013 CESTAT 1290
[Date of Order: 2013-10-18]

Refund: Service Tax paid on Services received prior to 18.04.2006: Prior to 18-04-2006 when 66A was introduced the only issue was that the Rule under which the tax was collected was considered to be not authorized by provisions in Finance Act, 1994. So the levy has to considered only as "without authority of" and not as "unconstitutional". So the decision of the Apex Court in para 70 in the case of Mafatalal Industries Ltd. (being the majority view) should apply: Refund not Admissible: Revenue appeal allowed.

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STO 2013 CESTAT 1308
[Date of Order: 2013-10-18]

Penalty: Provisions of Section 73(3): There is no provision that interest should be paid before issue of the show-cause notice as it was there in Section 73(1a) of the Act which stood at the relevant time.

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STO 2013 CESTAT 1501
[Date of Order: 2013-10-17]

Service Tax: Service Tax liability on the activity of marketing/distribution of units of Mutual Fund: Exemption under Notification No. 13/2003-ST dated 20.6.2003, judicial indiscipline: Service Tax under protest: Refund: Scope: If the Circular No. 66/15/2003-ST dated 5.11.2003 of the Board which is relied upon by the lower authorities for rejecting the refund claim, is struck down by the two high Courts, Revenue cannot argue that the said Circular will hold the field. It is nothing but gross judicial indiscipline. Since the issue is covered by the judgment of Hon'ble High Court of Andhra Pradesh in the case of Karvy Securities Ltd. Vs. Union of India - STO 2004 AP 105 (AP) as well as Hon'ble High Court of Delhi, on merits the Service Tax liability cannot be fastened on the respondent herein. To that extent, the Revenue's appeal against the impugned order is rejected. De novo proceedings before the adjudicating authority can only be to the extent whether the assessee respondent has passed the hurdle of unjust enrichment. Matter remanded.(Para 5,6,7).

Appeal disposed off.

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STO 2013 CESTAT 1059
[Date of Order: 2013-10-17]

Broadcasting Agency Service: Demand on reverse charge mechanism: Only permitting the right to receive signals in any form by transmission through electromagnetic waves through space or cable to MSO/cable operators is an aspect covered as taxable and Distribution rights given by ESSD to the Appellant and which are not covered under the definition and not taxable.

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STO 2013 CESTAT 1533
[Date of Order: 2013-10-17]

Service Tax: Service tax on the net commission received from the banks and not the gross commission: Scope: The respondents are commission agent/direct selling agent (DSA) for marketing of auto loan products of various banks. The respondents are arranging loan facility for buyers of motor vehicle. In view of the activity undertaken by the respondents, they were held to be liable to pay service tax under the category of 'business auxiliary service'. The ratio of the decisions in the case of Em Pee Motors Ltd. vs. CCE, Chandigarh reported in STO 2011 CESTAT 469, is fully applicable on the facts of the present case, therefore the impugned order whereby the adjudicating authority held that the respondents are liable to pay service tax only on the net commission after deducting subvention amount is not sustainable hence set aside. The respondents were liable to pay service tax on the gross amount of commission. In respect of imposition of penalties under Sections 76 and 78 of the Finance Act, as per the provisions of Section 80 of the Finance Act, as the respondents were under the bona fide belief that tax is to be paid on net amount of commission hence it is not a case for imposition of penalties.(Para 2,8).

Appeal disposed off.

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STO 2013 CESTAT 1403
[Date of Order: 2013-10-17]

Demand: Stay: Service tax and interest paid before issuance of show cause notice: Penalty pre deposit waived.

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STO 2013 CESTAT 1510
[Date of Order: 2013-10-15]

Service Tax: Business Auxiliary Service during June 2003 to February 2006: Letting out immovable properties to run Cafe Coffee Day: Scope and liability: Even though the agreement is termed as "Franchise Agreement", it is essential an agreement relating to letting out immoveable property for running outlet of "Cafe Coffee Day". Further as the properties are being taken to run Cafe Coffee Day, certain conditions have been enumerated so as to ensure the smooth functioning of outlets on day to day basis and cooperation by Appellants in this regard. Appellants have also been obliged to help M/s. ABCTCL, in taking necessary clearance from the Co-operative Housing Societies, Local bodies etc. However, beyond that appellants have no role for day to day running of the outlets. Appellants have not done any activity relating to promoting or marketing or sale or goods produced or provided by, belonging to the client. There is no any auxiliary service relating to any of the clauses mentioned in the definition or service of the type enumerated in the last clause of the definition has been provided by the appellants. Revenue's contention that the service provided by the appellants are covered under Business Auxiliary Service is not acceptable. (Para 6,8,9).

Appeals allowed.

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STO 2013 CESTAT 1434
[Date of Order: 2013-10-15]

Service Tax: "Commercial or Industrial Construction" and "Construction of Residential Complex" services: Exemption under Notification No.01/2006-ST, dated 01.03.2006 and remitted tax on 33% of the gross amount received after availing the benefit of abatement of 67% of the value: Scope and admissibility: Assessee was a registrant for the taxable service inter alia of "Commercial or Industrial Construction" service. He was so prior to 01.06.2007. He continued to file returns under the assumption that since he was providing Commercial or Industrial Construction service, the classification of the services continued notwithstanding introduction of the new taxable service from 01.06.2006. He was entitled to claim exemption under Notification No.01/2006-ST, dated 01.03.2006, dated 01.03.2006, if the service is classified as "Commercial or Industrial Construction service", is not in dispute. What the adjudication order concludes is that the service provided by the assessee though prior to 2007 may have been Commercial or Industrial Construction service, after this date it is liable to be classified as "Works Contract". This is a problematic area that requires to be resolved at the time of disposal of the appeal. Pre-deposit waived in full(Para 5,6).

Stay granted.

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STO 2013 CESTAT 1470
[Date of Order: 2013-10-15]

Departmental Appeal: Delay in filing appeal: Reason of earlier Tribunal decisions challenged before High Court by other Commissionerates: Delay not condoned: Appeal dismissed.

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STO 2013 CESTAT 1050
[Date of Order: 2013-10-14]

Works Composition: Rule 3(3) provides for giving option to Pay Tax: No format for giving such option: 50% amount ordered to be pre deposited.

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STO 2013 CESTAT 1556
[Date of Order: 2013-10-14]

Service Tax: Application for COD of more than six months in filing the appeal before the Commissioner(Appeals): Scope: As per the provisions of Sec.85 of the Finance Act, 1994, the appeal is to be filed within three months from the date of receipt of the order and the Commissioner (Appeals) has power to condone the delay of three months. The Hon’ble Supreme Court in the case of Singh Enterprises vs. Commissioner of Customs reported in STO 2007 SC 1450 held that the Commissioner (Appeals) does not have power to condone the delay beyond the period prescribed under the Act, In the present case, as the appeal has been filed beyond the condonable period, therefore there is no merit in the COD application.(Para 3).

COD application dismissed.

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STO 2013 CESTAT 1558
[Date of Order: 2013-10-11]

Service Tax: Refund of accumulated CENVAT credit under Notification No. 5/2006: Date of filing defective or initial claim is the relevant date: Limitation: Hon'ble High Court of Delhi in the case of CCE, Delhi Vs. Arya Exports and Industries CEO 2005 Del 30 to submit that for determining the date of filing the refund 'claim the date on which the original defective refund claim was filed should be taken as date of filing the refund claim, In the absence of any contrary decision rejection of refund claims on this ground cannot be sustained. As per the decision of the Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs, CST, Bangalore STO 2011 Kar 1118 for refund under Rule 5 of CENVAT Credit Rules, the provisions of Section 11B would not be applicable and therefore the limitation of one year also would not apply and hence the appellant is eligible for the full amount of refund claimed by them. Appellants is a 100% EOU. Even though the export of software is not a taxable service but still the assessee cannot be denied the CENVAT credit. The assessee is entitled to the refund of CENVAT credit. Similarly insofar as refund of CENVAT credit is concerned, the limitation under Section 11B does not apply for refund of accumulated CENVAT credit. Therefore, bar of limitation cannot be a ground to refuse CENVAT credit to the assessee." Impugned orders are set aside and matter is remanded for determination of admissible refund amount (Para 3,4,5).

Appeal disposed off.

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