Cenvat Credit: Invoices issued prior to appellants obtained registration: credit cannot be denied on the ground that the assessee was not registered during the relevant time.

Refund: Prior to registration: refund admissible.

Service Tax: Interest liability under Section 75 of the Finance Act, 1994: Scope: As per Section 75 of the Finance Act, 1994, every person, liable to pay tax who fails to credit the tax or any part thereof to the account of the Central Government within the prescribed period, shall pay simple interest at a rate not less than 10% and not in excess of 36% p.a. The assessee paid service tax by way of debit in CENVAT credit amount and later on made good the error by making payment in cash. Therefore, Commissioner (Appeals) has correctly held that this is not a case of failure to make payment but only an adoption of an incorrect method for payment, and therefore, the provisions of Section 75 are not attracted against the assessees.(Para 2).

Revenue appeal rejected.

Service Tax: Port Service: Limitation: The appellants got registered under 'port service' with effect from 18.8.2003. We cannot hold that the department was not aware of the nature of activity undertaken by the appellants when it was issued a registration certificate in August 2002. Therefore, as rightly argued by the appellants, the show cause notice basic to the proceedings issued in July 2006 is barred by limitation. We also find that the lower authorities have not given a reliable finding of fraud, suppression of facts, willful misstatement or contravention of any provisions of the Act with intent to evade payment of duty on the part of the appellants to justify invocation of larger period. (para 4)

Service Tax- Port Services: In Konkan Marine Agencies (supra) case, the Tribunal held that stevedoring works carried out on the basis of a licence issued by a port cannot be interpreted as rendering of any service on behalf of the port and the licence issued is only a permission to undertake such services within the port premises. The decision of the Tribunal in Konkan Marine Agencies case has been upheld by the Hon'ble High Court of Karnataka in its judgment in the case of Commissioner of Central Excise, Mangalore Vs. Konkan Marine Agencies [2009 (13) S.T.R. 7 (Kar.)]. As the demand of service tax is not sustainable, the demand for interest and penalties imposed are also not sustainable. (para 4)

Service Tax: Port Services: Registration under the category of "Cargo Handling Services" and "Custom House Agent" services - Issue in these cases is squarely covered by the decision of this Bench in the case of Konkan Marine Agencies Vs. CCE, Mangalore STO 2007 CESTAT 168 Waiver of pre -deposit of the entire dues demanded in the impugned orders.

Input Service Distributor: The only ground on the basis of which the credit has been denied is that the registration number was not available and this has been explained subsequently.

Business Auxiliary Service: Credit denied since the duty paying documents did not contain the address mentioned in the registration certificate: The duty paying documents were in the name of the appellant, only objection of revenue is that the address mentioned in the Invoices is not registered with the Revenue Authorities. We find the registration certificate was subsequently amended included the address mentioned in the invoices with retrospective effect. Order set aside and appeal allowed. In respect of credit denied on other grounds, the impugned order is upheld. Appeals are disposed off, as indicated above. (para 6)

Service Tax: Security Agency Service -  Waiver of Penalty Under Section 80: Section 80 lays down that notwithstanding anything contained in Section 76, 77 or 78, penalty shall not be imposable for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for such failure. In the facts and circumstances, the belief of the appellant that it was liable to pay Service Tax only on receipt of the amount from the recipient which is M/s. B.S.N.L., could be a bona fide belief. It may be recalled that the appellant had filed Writ Petition seeking direction from the Allahabad High Court to pay the dues and pursuant to the orders of the High Court, the dues were paid by B.S.N.L. directly to the Assistant Commissioner of Central Excise  (Para 4,11)

Service Tax: Security Agency Service: Penalty under Section 77: Imposition of penalty under Sections 77 and 78 is different from the one under Section 76. In the instant case, penalty under Section 77 has been imposed on the appellant for its failure to obtain registration. It is a common ground that no penalty is separately provided for failure to obtain registration and in the absence of any dispute that the appellant was rendering taxable service, there is no difficulty in holding that the penalty under Section 77 requires no modification. Appellant is further held liable to pay penalty of Rs. 1,000/- under Section 77 of the Act. (para 8,13)

Service Tax: Security Agency Service: Penalty under Section 78: Non-submission of the return was the result and concomitant of non-registration for which penalty has already been imposed under Section 77 of the Act. The clause “suppression of facts” can be applied where return is filed or some statement or declaration (which the person is required to submit) concealing material facts having bearing on the tax liability of the person. Non-submission of the return per se may not attract penalty under Section 78. (para 9)

Service Tax: Security Agency Service: Penalty under Section 76: Penalty, no doubt, can be quantified and imposed in that manner in terms of Section 76 of the Act, but it does not mean that penalty must necessarily be worked out at the rate and in the manner provided in Section 76.  It should be kept in mind that under Section 80, where the person/assessee succeeds in proving reasonable cause for failure to pay tax, penalty may be waived altogether.In the facts and circumstances, I am of the view that penalty of Rs. 50,000/- each for the periods in question totalling Rs. 1 lac in all would be sufficient to discharge the penal obligations under Section 76 of the Act. (para 10,12)

Stay: Penalty : Central Registration obtained at Delhi, Banglore authority had no jurisdiction to confirm. The original authority dropped penalty proceedings, in Revision penalty u/s 78 has been imposed. Similar matter earlier stay has been granted. Following the same stay granted in this case also.

Port Service: Ship breaking activities and ship manufacturing activities may also be done in the port area, for which purposes facility may be provided by the port, but that will not make the same as "port services".

Maintenance or Repair Service: The appellant had taken registration for the said services and had started paying duty thereafter. Revenue has not raised any objection to the said registration of the appellant and payment of duty by them under the category of maintenance and repair services. If the services being rendered by them were already covered by the above services, there was no justification on the part of Revenue to accept their registration under the category of maintenance and repair of services. The said category having been created w.e.f. 1-7-03, the said activity for the past period cannot be held to be covered under the category of port services.

Limitation: The period involved is 16-7-01 to 30-9-03, whereas the SCN has been issued on 23-1-04. There are no positive allegation of suppression or any mis-statement on the part of appellant with an intention to evade the duty. The issue involved is bona fide interpretation of provisions of law. Extended period cannot be invoked.

Stay: Management Consultant Service: Mere facts of non-registration by itself will not be a ground to come to a conclusion that there was suppression of facts.Waiver granted.

Banking Services : Suffice to state that the petitioner cannot be held to be a "non-banking financial company" solely on the basis of the certificate of registration issued by the Reserve Bank of India. It is only if, on the basis of material on record, it is established that in addition to the Certificate of Registration, the principal business of the petitioner, during the relevant period, was receipt of deposits or lending of money, that it would come within the definition of a "non-banking financial company", rendering it liable for payment of service tax.

Penalty : Under Section 76 of the Finance Act, 1994, the minimum penalty prescribed under the said Section 76 of F.A. 94 is Rs. 100/- only and not Rs. 100/- per day of delay. The adjudicating authorities have discretion not to impose any penalty for delay in paying service tax and for delay in furnishing return in terms of Section 80 of F.A. 94, but they have no such discretion for not imposing penalty for failure to apply for registration.