Landmark Service Tax Judgment - CENVAT CREDIT OF INPUTS/INPUT SERVICES/CAPITAL GOODS

Cenvat Credit of Inputs/Input Services/Capital Goods

Case Laws Related

  • STO 2014 CESTAT 54
  • Service Tax: Availment of Cenvat credit on capital goods of the entire amount instead of taking only 50%: Interest has been demanded for the 50% of the credit taken wrongly: Availment of CENVAT credit on Sim Cards by the appellant: Scope and admissibility: As regards Sim Cards, the appellants purchase the Sim Cards, load the software and thereafter sell it through the dealers and after sale to a customer, the Sim card is activated and the process of provision of Telecommunication service commences. That being the position, the claim of the appellant that Sim Card is an input for them and is used for providing the output service on a prima facie basis seems to be justifiable. Therefore, the appellant has made out a prima facie case and therefore the requirement of pre-deposit of this amount is waived.(Para 5.1).

    Interest on taking irregular credit on C.G. : As regards the amount involved in respect of capital goods, the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Ind-Swift Laboratories Ltd. CEO 2011 SC 1 clearly lays down the ratio that whether the credit taken is utilized or not, once it is wrongly taken, interest Is payable.(Para 6.1). Provisions under Rule 14 of Cenvat Credit Rules, 2004; makes it very clear that the said provision is attracted where the CENVAT Credit has been taken or utilized wrongly or has been erroneously refunded. In view of the aforesaid judgment of the Apex Court, the question of reading the word 'and' in place of 'or' would not arise. It is also to be noticed that in the aforesaid Rule, the word 'avail' is not used. The words used are 'taken' or 'utilized wrongly', Further the said provision makes it clear that the interest shall be recovered in terms of Section 11A and 11B of the Act. From the reading of Section 75 there is no requirement of determination of the amount to be demanded for demanding interest. In this case there is no dispute as regards the amount of credit wrongly taken and it is a fact that by the time department found out about wrong availment, the appellant had become eligible for the credit from 01.04.2008. That being the position, the a claim that duty should have been quantified and demanded (in this case wrongly availed credit) becomes only a technical formality and there is no clear requirement under Section 75 that such a technical formality should be completed for demanding any interest. If this claim is allowed, the provisions of Rule 14 which requires interest to be paid where credit has been wrongly availed becomes meaningless and no interpretation can be given to the law which will defeat the purpose of any of the provisions of the law.(Para 6.2,7).

    Pre-deposit ordered.

  • STO 2014 CESTAT 53
  • Service Tax: Denial of Cenvat credit: Nexus between the input services on which credit was availed and the output services provided: Scope and admissibility: The appellant is an output service provider under the category of business auxiliary services, business support services, etc. as they are providing customer care services to their principals situated abroad. For rendering such services, the appellant has to hire premises, recruit employees, use information technology software, engage management consultant, manage, maintain or repair both movable and immovable properties, use telecommunication services for communication purposes and so on. The definition of input service under Rule 2(1) of the CENVAT Credit Rules, 2004 is worded in a broad manner so as to bring within its ambit services availed by a provider of taxable service, whether directly or indirectly, and also enumerates some of the services which fall within the purview of the input service. The appellant has, clearly and in detail, explained the nexus between the input service on which credit was taken and the output service provided. Instead of examining the claim of the appellant and rebuting the same, if required, the adjudicating authority has dealt with the issue in a cavalier and irresponsible way. This not what is expected of an adjudicating authority. Matter remanded for reconsideration(Para 4.1, 4.2, 5).

    Appeal allowed by way of remand.

  • STO 2014 CESTAT 33
  • Service Tax: CENVAT credit on "Civil Construction Service" and "Rent a Cab" operator services: Admissibility: There is an error in the computation of service tax demand. However; this fact was not brought to the notice of the adjudicating authority when the impugned order was passed. Further, the eligibility to CENVAT credit in respect of construction service stands decided in favour of the appellant by the decision of Hon'ble High Court of Andhra Pradesh in the case of C.C.E., Visakhapatnam-II Vs. Sai Sahmita Storages (P) Ltd. CEO 2011 AP 10. Invoices in respect of availment of CENVAT credit on rent a cab services, wherein the particulars of the service provider along with the registration number, particulars of the service recipient, value of service provided and service tax charged are clearly indicated. Therefore, CENVAT credit on the strength of these documents could not have been denied to the appellant. (Para 5.1, 5.2).

    Appeal allowed by way of remand.

  • STO 2014 CESTAT 40
  • Service Tax: Cenvat credit admissibility with respect to outward freight from the place of removal: Definition under Rule 2(1) of the Cenvat Credit Rules, 2004: Scope: The main issue involved is whether during the period January 2005 to September 2006 the cenvat credit of Service Tax on the freight charges of outward transportation from the place of removal is admissible to the Respondent or not. First appellate authority has allowed the credit in view of CESTAT Larger Bench judgment in the case of ABB Limited & Others STO 2011 Kar 362 which was subsequently confirmed by Karnataka High Court in Commissioner of Central Excise & Service Tax, Bangalore Vs. M/s. ABB Limited, Vadodara STO 2011 Kar 362. Deliberating on this issue, jurisdictional High Court of Gujarat in the case of Commissioner of Central Excise and Customs Vs. M/s. Parth Poly Wooven Pvt. Limited & Others, CIO 2011 Guj 228 held that Cenvat credit admissibility with respect to outward freight from the place of removal is covered within the definition of Rule 2(1) of the Cenvat Credit Rules, 2004.(Para 4).

    Revenue appeal rejected.

  • STO 2014 CESTAT 31
  • Service Tax: Denial of cenvat credit as the service provider did not pay service tax: Scope and admissibility: Since the service provider has not paid the tax, CENVAT credit is denied. This decision is not sustainable in view of the decision of the Hon'ble Supreme Court in the case of CCE, Jalandhar Vs. M/s. Kay Kay lndustries CEO 2013 SC 34. Further there was no proposal to deny the credit on this ground in the show-cause notice and therefore Commissioner has travelled beyond the show-cause notice(Para 2,3).

    Appeal allowed.

  • STO 2014 CESTAT 27
  • Service Tax: Whether the respondents are entitled to use the Cenvat credit of Service tax for discharging service tax liability on GTA service so received by them : Scope: The issue stand decided by the Tribunal in the case of CCE Vs. Nahar Indus. Enterprises reported as STO 2007 CESTAT 151. The said decision of the Tribunal stand confirmed by Hon'ble Punjab and Haryana High Court reported as CCE Chandigarh Vs. Nahar Industrial Enterprises STO 2010 P&H 853. Even the Hon'ble Delhi High Court in the case of CST Vs. Hero Honda Morots Ltd. STO 2012 Del 1164 has held that there is no legal bar against utilization of Cenvat credit for payment of service tax by the recipient of GTA services.(Para 2).

    Revenue appeal rejected.

  • STO 2014 CESTAT 41
  • Service Tax: Cenvat credit on input services: Outdoor Catering Service: services were received for business promotion and sales promotion of the appellant and therefore, credit of service tax paid cannot be denied.

    Convention Cervice: Invoices were issued by two Hotels in relation to activities of sales promotion / business of the appellant. Therefore, appellant is eligible for credit of service tax paid.

    Event Management Service: Since 'event management service' was rendered for their customers and employees and it was done for sales promotion / business of the appellants, credit of service tax paid on this service cannot be denied.

    Market Research Service: This activity undertaken by appellant to understand the position of women in society has nothing to do with the business. This being the case, credit has been correctly denied.

    Penalty: The issue is debatable and interpretation of law & definition of service. Therefore, in this case, penalty is not imposable.

    Appeal disposed off.

  • STO 2013 CESTAT 1588
  • Cenvat Credit: Input Service: Insurance coverage to the employees of the assessee: Credit as admissible.

  • STO 2013 CESTAT 1307
  • Cenvat Credit: Demand: Stay: Dispute on the issue whether trading could be treated as an exempted service for the purpose of Cenvat credit stands clarified by CBEC in favour of the appellant: Pre deposit waived.

  • STO 2013 CESTAT 1051
  • Cenvat Credit: Wrong availment: Machineries which were installed was within factory premises and were used for manufacturing of dutiable goods; proposition of bona fide belief prima facie cannot be dismissed: Condition of pre deposit waived.

  • STO 2013 CESTAT 1128
  • Cenvat Credit: Credit availed on the documents not prescribed under Rule 9 of Cenvat Credit Rules, 2004: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 1153
  • Cenvat Credit: Input Service: Demand: Stay: Telephone used at the residence: Credit admissible on any business activity: No evidence given by Commissioner (Appeals) that the telephone installed at the residence was not used for business activity: Pre deposit waived unconditionally.

  • STO 2013 CESTAT 1233
  • Cenvat Credit: Demand: Stay: Credit in respect of towers and shelters pertaining to the petitioner's tele-communication business: Waiver granted on the basis of earlier decisions.

  • STO 2013 CESTAT 1345
  • Cenvat Credit: Input services used for Transportation of goods through pipelines or other conduit service denied on the ground that it is used for construction of immovable property: Input services directly received by the appellants and not through EPC Contractor: Pre deposit waived.

  • STO 2013 CESTAT 1344
  • Cenvat Credit: whether appellant was right in taking credit on the basis of debit notes issued by CHA: Appellant has not directly availed the services from Kandla Dock Labour Board and Kandla Port Trust, therefore, appellant is not eligible to the service tax credit paid the CHA to the Kandla Dock Labour Board and Kandla Port Trust as there is also no evidence that the CHA was acting as an agent of the appellant.

  • STO 2013 CESTAT 1283
  • Cenvat Credit: Service Tax paid on the services provided from outside India and received in India are not to be treated as output services: Directions issued for pre deposit.

  • STO 2013 CESTAT 1073
  • Cenvat Credit: Inordinate delay of availing four and half years: Directions to be issued for partial pre deposit.

  • STO 2013 CESTAT 1037
  • Cenvat Credit: Interest: Wrong availment of credit: Rule 14 of Cenvat Credit Rules, 2004: Where recovery of duty element no more arose and show cause notice was issued belatedly, the interest became irrecoverable in absence of any malafide of the appellant.

  • STO 2013 CESTAT 1456
  • Cenvat Credit: Input Service: Refund: If there is service tax liability which has been discharged by the service tax provider and collected from the appellant and if the premises are used by the appellant for rendering output services.

  • STO 2013 CESTAT 1270
  • Cenvat Credit: There is no provision in the Cenvat Credit Rules that if any amount of service tax shown to have been paid or payable in the duty paying document is not paid by the original manufacture or the service provider, then canvat credit taken is required to be varied at credit taking end.

  • STO 2013 CESTAT 939
  • Cenvat Credit: Common Input Service: Reversal: Credit taken for the services utilized for providing both dutiable and exempted services: Issue involved is regarding interpretation of the definition of input service given in Rule 2(1) of the CENVAT Credit Rules and needs deeper consideration: Appellant reversed the CENVAT Credit of Rs.1,79,907/-: Pre deposit waived for balance amounts.

  • STO 2013 CESTAT 1452
  • Cenvat Credit: Documents: Demand: Stay: The document based on which credit has been taken is issued by an organization other than an organization providing the service. But in the facts and circumstances of the case, no loss of revenue has been made out: Balance of convenience, will be upset against the applicant if any pre-deposit is called for: Waiver granted.

  • STO 2013 CESTAT 1211
  • Cenvat Credit: Input Service: Demand: Stay: Whatever amount the appellants would have paid as service tax would have been available to them as refund since the appellant is not provided any 'output service' within the country and all the services received from abroad as well as within the country are nothing but 'input services' the credit of which is available to them and they are eligible for refund of the same on producing proof that they have exported the services: On revenue-neutrality also the appellant has a strong prima facie case: Pre deposit waived.

  • STO 2013 CESTAT 1278
  • Cenvat Credit: Refund: Refund cannot be refused for the reason that the respondent had not taken registration before taking cenvat credit.

  • STO 2013 CESTAT 913
  • Cenvat Credit: Input Services: Invoices in the name of headquarter or any location: Still appellant is at liberty to establish that Air Travel Agency and Travel Agency services, for which credit is claimed, were only with respect to their unit situated at Indrad in remand proceedings.

  • STO 2013 CESTAT 1285
  • Cenvat Credit: Demand: Stay: Credit cannot be availed on the capital goods received before the service became taxable under the Finance Act, 1994: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 911
  • Cenvat Credit: Notification No. 15/2004-S.T: No infirmity in findings of the Commissioner allowing abatement under Notification 15/2004 prior to 01.03.2006 and Cenvat Credit facility with effect from 01.03.2006.

  • STO 2013 CESTAT 1339
  • Cenvat Credit: Demand: Stay : Since the appellants are claiming that they had paid CENVAT credit which is sufficient for payment of service tax and they have already debited the same: Matter remanded: The appellant shall produce the evidence to show that they have not collected the service tax if that is their claim and also regarding availability of CENVAT credit in their books of account and proof of debit in the account.

  • STO 2013 CESTAT 1312
  • Cenvat Credit: Demand: Stay: Input services used for construction of hotel which is immovable property and no output service provided: Prima facie case found to have been made on the basis of decision in Navratna S.G. Highway case: Pre deposit waived.

  • STO 2013 CESTAT 1259
  • Cenvat Credit: Demand: Stay: Since the provision in Rule 3(5) of the CENVAT Credit Rules, has been deleted the demand made for the reason that the goods have not been returned, is not sustainable at this stage Pre deposit waived.

  • STO 2013 CESTAT 935
  • Cenvat Credit: Input Service: Insurance Premium of manufacturing premises and adjoining plot owned by the appellants: Prima facie case found for waiver of pre deposit.

  • STO 2013 CESTAT 972
  • Cenvat Credit: Input Service: Rent-a-cab service used for transportation of employees from Railway Station to various business places: As per judgments of High Courts Cenvat credit has been allowed on rent-a-cab used for transportation of workers from the factory to their residence: Prima facie case for waiver found.

  • STO 2013 CESTAT 1446
  • Cenvat Credit: Input Service: Demand: Stay: Issue relating to construction service as input services for output services provided using the immovable property constructed stand decided in favour of assessees: Pre deposit condition waived.

  • STO 2013 CESTAT 956
  • Cenvat Credit: Common input Services: Reversal: Applicants are not disputing the fact that part of the processed goods are cleared at nil rate of Service Tax by availing the benefit of exemption notification. It is also not disputed by the applicant, that credit has been availed in respect of the common inputs as well as input services, which are used in the processing of exempted as well as the processed goods on which the Service Tax has been paid: Prima facie case not found in favor of the applicants: Directions issued for partial pre-deposit.

  • STO 2013 CESTAT 944
  • Cenvat Credit: Input Service: Service tax paid under Section 66A: Appellant cannot be denied the CENVAT Credit of the Service Tax paid on such business exhibition services as he is a manufacturer: Pre deposit waived.

  • STO 2013 CESTAT 1260
  • Cenvat Credit: Wrong availment of Cenvat Credit: Invoices produced before lower authority: Various other issues involved: Pre deposit waived.

  • STO 2013 CESTAT 977
  • Cenvat Credit: Cenvat Credit in respect of tower parts will not be available under Rule 2(A) or Rule 2(k) (ii) of the Cenvat Credit Rules, 2004, Tribunal held that as such credit has been availed and utilized by the appellant for payment of service tax. Hence, the same is recoverable: However, demand only for normal period to be confirmed: Order passed asking for partial pre deposit.

  • STO 2013 CESTAT 1021
  • Cenvat Credit: Input Service: Demand: Stay: insuring the manufacturing premises, vehicles, and workmen, etc., is the part of business of manufacturing and has nexus with the activity undertaken by the appellant: Unconditional stay granted.

  • STO 2013 CESTAT 1020
  • Cenvat Credit: Input Service: Demand: Stay: shipping fees paid on the tugs and barges operated and used by the appellants for the transportation of raw materials from the mother vessel to the jetty at Revdanda Port. For operating the vessel, they paid shipping fee under the category of "Port Services" and discharged the service tax liability thereon and availed Cenvat credit of service tax paid on the port services: Stay granted on prima facie case.

  • STO 2013 CESTAT 1019
  • Cenvat Credit: Input Service: Demand: Stay: Shipping fees paid on the tugs and barges operated and used by the appellants for the transportation of raw materials from the mother vessel to the jetty at Revdanda Port. For operating the vessel, they paid shipping fee under the category of "port services" and discharged the service tax liability thereon and availed Cenvat credit of service tax paid on the port services: Stay granted on prima facie case.

  • STO 2013 CESTAT 1018
  • Cenvat Credit: insuring the manufacturing premises, vehicles, and workmen, etc., is the part of business of manufacturing and has nexus with the activity undertaken by the Appellant: Stay granted from recovery.

  • STO 2013 CESTAT 1017
  • Cenvat Credit: Transportation of employees by Bus: In the appellant's own case this Tribunal has allowed Cenvat Credit of the service tax paid on transportation service for their employees: Appeal accordingly allowed.

  • STO 2013 CESTAT 967
  • Cenvat Credit: Input Service: Outdoor Catering: Appellants eligible for cenvat credit,: appellant shall reverse the Cenvat Credit taken towards cost of the out door catering service recovered from the employees along with interest forthwith.

  • STO 2013 CESTAT 966
  • Cenvat Credit: Penalty: denial of CENVAT Credit respect of the services rendered at the residential colony of the appellant-firm is correct in law: Penalty not imposable since at the material time there were decisions allowing such Cenvat credit also.

  • STO 2013 CESTAT 953
  • Cenvat Credit: Debit Note: The prescription of document is only a machinery provision for achieving the object of law. In the present case, Rule 4A of the Service Tax Rules, 1994 does not prescribe any format of document to be issued by the service-provider. It only specifies what are the particulars which should be contained in the document: Once those particulars mentioned, the Cenvat credit cannot be denied.

  • STO 2013 CESTAT 1092
  • Cenvat Credit: Demand: Stay: if service tax has been paid and the credit has been taken by the service recipient, the credit was admissible to the service provider: Pre deposit waived.

  • STO 2013 CESTAT 1094
  • Cenvat Credit: Demand: Stay: Assessee availed Cenvat credit on structural steel items such as angles, channels, beams, plates, sheets, coils etc and on cement and TMT bars used for construction of civil structures in respect of expansion of its cement plant and erection of various components of the plant such as lime stone crusher, Raw mill, blending silo coal mill etc, The availment of Cenvat credit on these items was disallowed on the ground that these were deployed for construction of civil structures which are embedded into earth: issue is still untested in view of an apparent conflict of judicial opinion in this area: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 709
  • Cenvat Credit: GTA Services: Service tax for removal of goods from the factory gate: The Hon'ble Gujarat High Court in the case of Parth Poly Wooven Pvt. Ltd. reported in CIO 2011 Guj 228 relied on the decision of the Karnataka High Court and also considering the decisions of Ambuja Cement has held that the CENVATcredit of service tax in respect of the goods transported agency used for transportation of finished goods upto the customers' premises is admissible to the assesse.

  • STO 2013 CESTAT 796
  • Cenvat Credit: Requirement of prior Registration: In the absence of a statutory provision which prescribed that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law.

  • STO 2013 CESTAT 794
  • Advertising Agency: Cenvat Credit: Free Commercial Time: since unless the serials are broadcast, the appellant not eligible for free commercial time and the payment of service tax under the category of "Sale of space or time for advertisement". Therefore, the chain is clearly established and the appellant is entitled for cenvat credit on service tax paid towards telecast fee.

  • STO 2013 CESTAT 1212
  • Cenvat Credit: Documents which according to the appellant are available have not been verified and appellants have not produced the same before the original adjudicating authority or before the Tribunal because of huge volume has to be considered and the matter has to be remanded to the original adjudicating authority for the purpose of verification as to whether documents on the basis of which CENVAT credit has been taken are available and credit taken is correct: However, directions for pre deposit have been issued.

  • STO 2013 CESTAT 841
  • Exemption: Cenvat Credit: Notification No. 12/2003-S.T: Goods sold during providing of service: From the invoices the dispute is about parts used and not consumables and if at all there is any consumable involved the proceedings before the lower authorities have not segregated the quantum attributable to consumables: Pre deposit waived.

  • STO 2013 CESTAT 687
  • Cenvat Credit: Wrong availment: Demand: Stay: Cenvat credit availed by the petitioner, the 2004 Rules do not specify that invoices must on the registered office of the claimant: Prima facie case made out for waiver from pre deposit.

  • STO 2013 CESTAT 651
  • Cenvat Credit: Prior to November, 2008 the appellants were providing only exempted services: The appellants availed Cenvat credit of input services for the period prior to November, 2008 and utilized for taxable services after November, 2008: In respect of exempted services provided prior to November 2008, the petitioner remitted tax of Rs.6.02 crores by utilising the available Cenvat credit, under the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004: Prima facie case made out for waiver: Stay granted.

  • STO 2013 CESTAT 1001
  • Refund: Cenvat Credit Accumulated: Commissioner (A) remanded matter to original authority for verification of documents : Part was rejected on the ground of time bar: Applicants plea that refund claim filed within time limit found genuine: Matter remanded to original authority to reconsider the matter afresh.

  • STO 2013 CESTAT 672
  • Cenvat Credit: Input Service: Co-relation with output service: No correlation between the input service and the output services is required and that it is settled law that there need not be a one to one correlation, in availing of Cenvat credit of input service to the provision of output service.

  • STO 2013 CESTAT 574
  • Cenvat Credit: Accumulated Credit: Accumulated credit would not lapse and Rule 6 (3) does not bar utilisation of accumulated credit and therefore, the department should not deny utilisation of the accumulated credit by the assessee after 01/04/2008.

  • STO 2013 CESTAT 745
  • Cenvat Credit: Demand: Stay: Wrong availment of credit in respect of the exempted service, in relation to trading activity: Pre-deposit waived and all further proceedings pursuant to the impugned adjudication order stayed on condition that the petitioner remits the entirety of the cenvat credit disallowed, including the interest thereon excluding penalties.

  • STO 2013 CESTAT 712
  • Input Service: Maintenance or Repair: Renting of Immovable Property Output service: Inputs service is defined as any service used by provider of the taxable service for providing output service. In the present case the appellants are provider of renting of immovable property service and maintenance and repair service in respect of area other than 998 Sq. ft. will not' be covered under definition of inputs service as that has not been used in providing the output services. Therefore the appellant are eligible for the Cenvat Credit in respect of service tax paid on Maintenance service in respect of 998 Sq. ft. of the total area.

  • STO 2013 CESTAT 519
  • Cenvat Credit: Rule 6(5): The purpose and objective of CENVAT credit Rules is to allow a manufacturer/output service provider not only to take the credit but also to utilise the same for the purposes specified in the said Rules. The respondents herein are output service providers who discharge service tax liability. Therefore, if they are allowed only to take credit and not to utilise the same, the objective of the CENVAT Credit Rules cannot be achieved. There is no reason for interpreting the term "allow" in a narrow and restrictive manner as urged by the Revenue. The said interpretation urged by the Revenue defeats the object and purpose of the CENVAT Credit Rules. Rules cannot be interpreted in such a way so as to make them nullity.

  • STO 2013 CESTAT 700
  • Cenvat Credit: Period prior to 1.4.2008: Appellants eligible for Cenvat credit in respect of outward transportation of the finished goods.

  • STO 2013 CESTAT 614
  • Cenvat Credit: Input Service: Wherever direct nexus can be established between the input services received by the appellant and the output services rendered, credit will have to be allowed.

  • STO 2013 CESTAT 873
  • GTA Service: Cenvat Credit: recipient of service can discharge Service Tax liability by availIng credit on inputs/ input services/ capital goods even if they are not providing the taxable service.

  • STO 2013 CESTAT 667
  • Cenvat credit: Address shown in the input invoice not correct: Matter remanded with directions to appellants to produce necessary evidence co-relating use of services by them.

  • STO 2013 CESTAT 682
  • Cenvat credit: Credit taken and distributed to branch offices without obtaining registration as Input Service Distributor: When the Appellant, though not providing the banking/financial services, were registered as provider of banking service, since 2004, they should be treated as registered as ISD also, as they were for all practical purposes, functioning as input service distributor and the availment of service tax credit and its distribution to various branches by issue of invoices were being reflected in the ST-3 returns being filed by them, which is what a registered Input Service Distributor would have done.

  • STO 2013 CESTAT 662
  • Cenvat Credit: Revenue Neutrality: Appellants being registered as Input Service Distributor distributed Cenvat credit which they had wrongly taken: However, invoices were in the name of various units, hence, credit even otherwise admissible: Limitation clause applicable: Demand time barred.

  • STO 2013 CESTAT 466
  • Cenvat Credit: Input Service: The premises in respect of which discharge of rent by the petitioner was taken cenvat credit for, had no close and direct nexus with the taxable service provided by the petitioner. 

  • STO 2013 CESTAT 765
  • Cenvat Credit: Exempted Services: when tax is not paid on a service, it has to be considered as an exempted service in view of definition at Rule 2 (e) of CCR 2004 and consequently provisions of Rule 6 will apply: directions issued for partial pre deposit.

  • STO 2013 CESTAT 899
  • Cenvat Credit: Head office not registered as Input Service Distributor: Credit taken by appellants on the invoice which were not in their name showing different address: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 744
  • Cenvat Credit: Input Service: Irregular availment: Demand: Stay: Applicant had availed the CENVAT Credit of the Service Tax paid on the input services rendered by M/s. Pankaj Industries, which related to service of marketing of the projects in Tata Steel, Jamshedpur: No nexus between the services rendered by M/s. Pankaj Industries to M/s. Tata Steel Ltd and the output services, i.e. Outdoor Catering Services provided by the Applicant to M/s. Tata Cummins Ltd.: Directions issued for pre deposit.

  • STO 2013 CESTAT 885
  • Cenvat Credit: Issue involved is availment of Cenvat Credit on Angles, Channels, Beams etc. used in the factory as capital goods: In view of Larger Bench judgment in the case of Vandana Global, directions issued for partial pre-deposit.

  • STO 2013 CESTAT 1216
  • Cenvat Credit: Abatement: Appellant has taken the CENVAT credit of tax paid by sub-contractor as well as availed abatement: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 767
  • Cenvat Credit: Input Service: applicant incurred advertisement expenses for mutual funds, and it cannot be treated as input service: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 316
  • Cenvat Credit: Capital Goods: Telecommunication: Cenvat credit has been taken on parts of telecommunication tower such as iron and steel products and these products go into the erection of telecommunication tower which are not goods and hence they cannot be considered as inputs used for rendering of output service of the telecommunication services undertaken by the appellant.

  • STO 2013 CESTAT 315
  • Cenvat Credit: The petitioner therein has filed an appeal against the order of this Tribunal before the Hon'ble High Court of Bombay and the matter is pending adjudication before the Bombay High Court. However, no stay has been granted against the said decision. In view of the above position the law which prevails today is that as laid down by this Tribunal Appellant would not be eligible for the Cenvat credit of the excise duty paid on the parts of tower which have been utilised in the erection of towers.

  • STO 2013 CESTAT 406
  • Cenvat Credit: Input Service: Demand: Stay: Any service provided for welfare of sugarcane grower and sugar cultivation is only to improve the condition for growing sugar and directly or indirectly has no concerns with manufacture of their final products: Directions issued for pre-deposit.

  • STO 2013 CESTAT 823
  • Wrong Availment: Cenvat Credit: Demand: Stay: Rule 12A of CENVAT Credit Rules, any branch of LTU can transfer the CENVAT credit to other branches of the same company without any limit: Not being registered as Input Service Distributor only a procedural infraction and may not call for denial of the entire CENVAT CREDIT: Pre-deposit waived.

  • STO 2013 CESTAT 484
  • Cenvat Credit: Notfn.No.1/2006-ST grants abatement provided Cenvat credit is not taken: Appeal rejected.

  • STO 2013 CESTAT 419
  • Cenvat Credit: Input: Credit taken on telecommunication towers: Directions issued for making pre deposit.

  • STO 2013 CESTAT 367
  • Cenvat Credit: Disallowed: Demand: Stay: In respect of towers and shelters and utilistation of services in construction of towers, directions issued for pre-deposit.

  • STO 2013 CESTAT 451
  • Cenvat Credit: Taken wrongly or utilized wrongly: Original adjudicating authority has not come to a clear finding an admissibility of Cenvat credit. Commissioner (Appeals) has simplicitor upheld the order of Assistant Commissioner by observing that the appellants have not been able to produce the relevant invoices and the other documents. However, it stand shown that all such requisite records were placed before the authorities below: Matter remanded for first examining the availability of Cenvat credit and then to decide on utilisation of the same for payment of service tax. 

  • STO 2013 CESTAT 404
  • Cenvat Credit: Input Service: Demand: Stay: In so far as any input service is concerned, the only stipulation is that it should be received by the manufacturer of the final product: Pre deposit waived.

  • STO 2013 CESTAT 260
  • Cenvat Credit: Construction of Compound wall around the factory: Construction services utilized for establishing the factory were eligible for cenvat credit.

  • STO 2013 CESTAT 299
  • Credit Card: Levy of service tax: Demand: Stay: Based on decree passed Honorable Allahabad High Court asking the petitioners therein to furnish bank guarantee: Issue having not been finally settled: Similar directions issued to the appellants.

  • STO 2013 CESTAT 381
  • Cenvat Credit: Input service v/s Output Service: Different activities are undertaken by the applicants under a different agreements and the dispute is in respect of the credit which was availed in respect of installation and commissioning of the plant under a different contract and the applicants want to utilize that credit towards payment of service tax in respect of operation and maintenance service which is under a different contract: Pre deposit of partial amount ordered as prima facie case not made out.

  • STO 2013 CESTAT 401
  • Cenvat Credit: Demand: Stay: Cenvat Credit denied on trading activity: Directions issued for partial pre deposit.

  • STO 2013 CESTAT 638
  • Cenvat Credit: Credit availed on construction Service: Renting of Immovable Property being output service: Andhra Pradesh High Court in the case of Sai Samhita allowed Cenvat credit on cement and TMT bars used for building used for providing taxable output service of Storage & Warehouse: Appeal allowed.

  • STO 2013 CESTAT 560
  • Cenvat Credit: taxable and non-taxable service: demand: stay: sale of loan portfolio is a trading activity : Prima facie, Cenvat credit cannot be taken on input services used for such activity: Directions issued for pre deposit.

  • STO 2013 CESTAT 290
  • Cenvat Credit: Input Service: Invoice: Demand: Stay: Applicants produced copies of invoices issued to their customer who stayed in Marriott Executive Apartment, showing payment of service tax in respect of the taxable services provided such as internet cafe, health club, beauty parlour and dry cleaning: Credit admissible: Pre deposit waived.

  • STO 2013 CESTAT 356
  • Cenvat Credit: Availed on the strength of bills of entry and invoice of inputs in the name of principal manufacturers: Appellate produced endorsed bills of entry in their name by principal manufacturers and also produced copies of invoices issued by another principal manufacturer: Matter remanded as these documents were not produced earlier.

  • STO 2013 CESTAT 300
  • Cenvat Credit: Input Service: Service tax paid to security agency for providing security in the colony of the employees not admissible.

  • STO 2013 CESTAT 296
  • Cenvat Credit: reversal of credit taken on input services at the time of clearance of inputs as such: assessee has only to reverse the credit in respect of inputs and not in respect of input services.

  • STO 2013 CESTAT 177
  • Cenvat Credit: Demand: Unit No. 1 and 2: If credit could not be taken in unit-1, it could have been taken in unit-2 in any case. Moreover, even after taking the credit in unit-1, throughout period till the credit was reversed, the appellant had substantially more credit than what has been demanded and proceedings initiated. Under these circumstances, invocation of extended period on the ground of misdeclaration with intention to evade duty or suppression of facts cannot be sustained.

  • STO 2013 CESTAT 355
  • Cenvat Credit: Demand: Stay: Excess utilization 20%: Restriction under Rule 6(3) of the CENVAT Credit Rules does not apply to utilization of CENVAT credit availed on capital goods: Pre deposit waived.

  • STO 2013 CESTAT 182
  • GTA Service: Input Service: Appellants are eligible to avail the CENVAT Credit of the Service Tax paid on the Goods Transport Agency services.

  • STO 2013 CESTAT 817
  • Cenvat Credit: Common input services: Rule 6(3A) of CCR, 2004: Appellants maintained separate records for taxable and exempted services: Pre deposit waived.

  • STO 2013 CESTAT 815
  • Cenvat Credit : Input service : Manufacture on job Work: Service utilized in manufacture of goods on job work basis could be held to be eligible for Cenvat Credit.

  • STO 2013 CESTAT 307
  • Input Service: Cenvat credit: credit of service tax paid in case of Travelling Services, Warehousing Services, Export clearances Services, Courier Services, Telephone Services, Interior Decoration Services etc., are in relation to the manufacture of the final products: Pre deposit waived.

  • STO 2013 CESTAT 264
  • Cenvat Credit: GTA Service: Input Service: CENVAT Credit was rejected solely on the ground that the sale and transfer of property in the goods were not shown to have occurred at the buyers' premises: Matter remanded.

  • STO 2013 CESTAT 553
  • Cenvat Credit: Input Service: CENVAT credit was denied 'on maintenance of garden and printing of stationeries (telephone bills). The appellant reversed the entire credit: Penalty under Section 78 set aside.

  • STO 2013 CESTAT 310
  • Cenvat Credit: Input Service: any service availed by a manufacturer of excisable goods in the course of their business activity is entitled for input service credit.

  • STO 2013 CESTAT 244
  • Cenvat credit: Credit denied on the ground invoice not as per Rule 9(2): service availed by the appellant during the course of business activity, appellant are entitled for input service credit.

  • STO 2013 CESTAT 161
  • Cenvat Credit: Wrongly taken: Demand: Stay: if an assessee makes the payment of the invoices which indicate service tax payable and avails the Cenvat credit, the activity or the action of service provider or not depositing the same in the Government Treasury will not bar the service recipient from taking Cenvat credit on the service tax paid, if eligible: Stay granted.

  • STO 2013 CESTAT 115
  • Cenvat Credit: Credit availed on services utilized towards construction of residential complex by the appellant: Due to confusing decisions at the material time, bonafide established, larger period cannot be invoked.

  • STO 2013 CESTAT 122
  • Demand: Stay: Plea of availability of Cenvat credit not substantiated by evidences: inasmuch as the appellant has collected service tax from their customers, the question of showing any leniency would not arise at all and as regards the Cenvat credit claimed by the appellant, they are yet to prove the eligibility for the same and therefore, the appellant should be put to terms.

  • STO 2013 CESTAT 220
  • Cenvat Credit: Common use for taxable and exempted services: Restriction for use of Cenvat Credit: The cap of 20% on the utilization of CENVAT Credit under Rule 6(3)(c) of the Cenvat Credit Rules, 2004 was lifted on 1.4.2008. From 1.4.2008 onwards, the appellant had the liberty to reverse Service Tax credit attributable to exempted services on a proportionate basis, which the appellant had done in the instant case.

  • STO 2013 CESTAT 120
  • Cenvat Credit: Supply of tangible goods: Claim not supported by the appellants with documentary evidences: Matter remanded with directions to appellants to produce all the documents before the authorities.

  • STO 2013 CESTAT 542
  • Cenvat Credit: Demand: Stay: Credit denied on tower and shelters as well as input services relating to tower and shelters: Bombay High Court granted stay from recovery: Accordingly, pre deposit waived for demand pertaining to the reversal of the said Cenvat credit.

  • STO 2013 CESTAT 326
  • Demand: Cenvat Credit: Excess Utilisation: Cap of 20% under Rule 6(3)(c): Board has clarified that utilization of accumulated credit on account of 20% cap under Rule 6(3)(c) of the Cenvat Credit Rules, 2004, is permissible from 01.04.2008. Therefore, the assessee is entitled to avail the accumulated credit on account of 20% cap w.e.f. 1.4.2008 or the subsequent period. In case any assessee has utilized the accumulated credit prior to 1.4.2008, they are liable to pay the interest on the excess credit availed and utilized during the period.

  • STO 2013 CESTAT 128
  • Cenvat Credit: Service tax paid on inputs under GTA category whether also required to be reversed when such inputs are cleared as such: Decisions of High Courts in favor of trade that such credit is not required to be reversed.

  • STO 2013 CESTAT 116
  • Cenvat Credit: Input services: List of services which have been availed by the appellant would indicate that the services which are received by the appellant are in relation to the business activity of the appellant i.e. renting of godowns to various persons.

  • STO 2013 CESTAT 107
  • Cenvat Credit : Input Service: Taxable & Non taxable: Cap of 20% prior to 1.4.2008 only for utilization and not for availing Cenvat credit: Eligibility to Credit: Since the appellant has been prima facie found liable to service tax in respect of airlines commission, airline incentive and CCX fee under the category of 'Business Auxiliary Service', Appellant to make a predeposit of Rs. 71 lakhs.

  • STO 2013 CESTAT 78
  • GTA Service: Utilisation of credit: Definition of output service was amended from 01.03.2008 which excluded the output service of Goods Transport Services from the output services, provided if it is undertaken by a consigner or consignee by reverse charge mechanism: Credit admissible.

  • STO 2013 CESTAT 76
  • Cenvat Credit: CHA Service: Input Service: Service Tax paid by the CHA for the export of goods is eligible to be availed as cenvat credit by the assessee.

  • STO 2013 CESTAT 173
  • Cenvat Credit: Distribution of Cenvat credit to manufacturing units without obtaining registration as Input Service Distributor: ISD registration was required only where CENVAT credit was distributed. If CENVAT credit was only transferred from one manufacturing/service-providing unit of LTU to another manufacturing/service-providing unit of the LTU, the transactions were governed by the provisions of Rule 12A.

  • STO 2013 CESTAT 104
  • Cenvat Credit: Reversal sought on the ground that respondents had written off certain bad debts on the basis of one-to-one co-relation: It is settled law that there cannot be one to one co-relation in availing of the CENVAT Credit of the input service to the provision of output service: Departmental appeal rejected. 

  • STO 2013 CESTAT 105
  • GTA Service: Cenvat Credit: Utilisation thereof: Issue regarding availment of CENVAT Credit on outward freight for the period prior to 01.04.2008 has been settled by the Hon'ble High Court of Karnataka in the case of ABB Ltd. (cited supra) in favour of assessee.

  • STO 2013 CESTAT 153
  • Cenvat credit: address of respondent not mentioned in the invoices: There being no doubt about input services having been received by the respondents: Departmental appeal rejected.

  • STO 2013 CESTAT 146
  • Cenvat Credit: Services used prior to registration: Appellant is eligible to avail cenvat credit of the service tax paid on input services after getting registration.

  • STO 2013 CESTAT 57
  • Cenvat credit: Input Service: Demand: Stay: Receipt of broadcasting service by the appellant for further distribution of the same to the Siti Cable is covered by the definition of input services: Stay granted.

  • STO 2013 CESTAT 72
  • Cenvat Credit: GTA service; Whether output service for service receiver: Period in dispute April, 2007 to March, 2008: During the material period, entitled to take CENVAT credit on input services and utilise the same for payment of service tax on the GTA service.

  • STO 2013 CESTAT 46
  • Cenvat Credit: Input Service: Demnand: JCB Machine used to uproot trees for obtaining charcoal for manufacture of calcium carbide: Entire chain of activity is linked and it cannot be said that JCB Machine was not used in relation to manufacture of final product: Credit admissible.

  • STO 2013 CESTAT 201
  • Cenvat Credit: Inputs used in the manufacture of capital goods: credit admissible: departmental appeal rejected.

  • STO 2013 CESTAT 44
  • Input Services: Nexus: User of the services - catering service, photography service, service of repair and maintenance of the motor vehicles and renting of halls and travelling expenses is not disputed: All these services have nexus with the appellant's activity of providing commercial coaching and training and, as such, the same appear to be covered by the definition of input service as given in Rule 2 (I) of the Cenvat Credit Rules.

  • STO 2013 CESTAT 135
  • Cenvat Credit: Inadmissible credit utilized: appellant is required to pay interest for the period from the date CENVAT credit taken which was inadmissible till the date of reversal of the same.

  • STO 2013 CESTAT 34
  • Cenvat Credit: Demand: Stay: applicants availed irregular CENVAT credit on towers & shelters, erection and installation pertaining to towers and shelters and other equipments/cell sites, other input services like insurance and security for unregistered premises, banking, cab, catering etc. and on invalid documents: On the basis of judgment of Honorable Bombay High Court, stay granted.

  • STO 2013 CESTAT 148
  • Cenvat credit: Interest: Wrong utilization: Appellants required to pay interest for the entire period of taking Cenvat credit and its utilization: Directions issued for pre deposit.

  • STO 2013 CESTAT 82
  • Cenvat Credit: Immovable Property: Demand: Stay: Excise duty paid on inputs and service tax paid on input services used in the construction of immovable property can be taken and utilised while discharging service tax liability on the renting of such immovable property: Waiver from pre deposit granted.

  • STO 2013 CESTAT 252
  • Cenvat Credit: Input credit: Documents: Appellants took Cenvat credit on Airway bills: Documents contain all details required for verification: Matter remanded back.

     

  • STO 2013 CESTAT 55
  • Erection, Commissioning or Installation: Cenvat Credit: The goods manufactured by the appellant were sold at factory gate and that, under the Erection Contract, their customer brought the goods to the sites of installation of transmission lines: It is not in dispute that inland transportation and transit insurance were also part of the Erection Contract. If that be so, the appellant should have included freight and the cost of insurance in the taxable value of erection, commissioning and installation service for the purpose of payment of service tax on this output service, but they did not do so on the other hand, the appellant separately, collected the service tax paid on freight and insurance, from PGCIL and therefore they were not entitled to claim CENVAT credit of such tax.

  • STO 2013 CESTAT 190
  • Cenvat Credit: Reversal: There is no need to reverse any Cenvat credit taken on inputs/input services if such inputs/input services were used in rendering of output services to SEZ unit/SEZ developer.

  • STO 2013 CESTAT 132
  • Cenvat Credit: Penalty for wrong availment: As the appellants not contesting the demand of duty on merits on the ground that they have already reversed the amount as negligible, and further find that the issue whether CENVAT credit on the above services was available to the appellant or not was not disputed: No penalties warranted in this case.

  • STO 2013 CESTAT 17
  • GTA Service: Utilisation of Cenvat credit: Prior to 01/03/2008 the definition of out-put service provider included service receiver also and, therefore, appellant is eligible for using credit for payment of service tax.

  • STO 2013 CESTAT 10
  • Exemption: Cenvat Credit reversed before claiming exemption under Notification No. 1/2006. dated : 01-03-2006 : Waiver from pre deposit granted.

  • STO 2013 CESTAT 20
  • Cenvat Credit: Invoices issued by Authorised Service Station: Genuinity of invoices in dispute: Directions issued for partial pre deposit.

  • STO 2012 CESTAT 1099
  • Cenvat Credit: "Sodox Passes": Cannot be treated as input service, as it is perk to the employees, employees can purchase food coupons by exchanging these passes or use these passes for purchasing other goods.

  • STO 2012 CESTAT 1091
  • Cenvat credit: "sodox passes": Cannot be treated as input service, as it is perk to the employees, employees can purchase food coupons by exchanging these passes or use these passes for purchasing other goods.

  • STO 2012 CESTAT 1134
  • Cenvat credit: Construction Service: Whether the Service Tax paid on construction of commercial building can be taken as CENVAT Credit when the said building is rented out and Service Tax is paid thereon under the category of 'Renting of Immovable Property': Stay granted.

  • STO 2012 CESTAT 1077
  • Cenvat credit: Availed on the basis of (Advice Notes) for transfer of debit and credit: Also possessing invoices which were lying in their Head Office and could not be produced before the Commissioner and they did not avail opportunity for personal hearing: Matter remanded.

  • STO 2012 CESTAT 1002
  • Cenvat Credit: Credit used for providing service of export of cargo which is exempted service: However, it was found that appellants have paid service tax under “Port Service”: Prima facie case for stay found and accordingly stay granted.

  • STO 2012 CESTAT 962
  • Cenvat credit: Common Inputs: Appellants alleged non-co-operation with the department and did not produce documents for verification: Directions issued to pre deposit Rs.50 lakh.

  • STO 2012 CESTAT 1033
  • Cenvat credit: Defective invoices: Appellants claim defects in the invoices rectified: There being no dispute about service tax paid and utilization of services: Matter remanded back for verification of documents and allowing Cenvat credit.

  • STO 2012 CESTAT 1019
  • Cenvat Credit: Group Insurance scheme for employees: Credit admissible.

  • STO 2012 CESTAT 899
  • Cenvat Credit: Capital Goods: Period prior to 10.09.2004: Not admissible: Respondent has to pay total service tax by debiting CENVAT Credit on capital goods received subsequent to 10.09.2004 and by paying balance in cash with interest and 25% of Service Tax paid in cash towards penalty within 30 days of receipt of this order and in case of failure, pay penalty equal to the Service Tax payable in cash.

  • STO 2012 CESTAT 1071
  • Cenvat Credit: For the period on or after 01.04.2008 CENVAT credit on outward transportation is not available on the outward transportation incurred beyond the place of removal.

  • STO 2012 CESTAT 830
  • Abatement: Cenvat Credit availed on inputs: Abatement not admissible: Directions issued for pre deposit.

  • STO 2012 CESTAT 769
  • Cenvat credit: Capital goods: Only 50% credit admissible in the year: Appellants took 100% credit during consequent 3 years: Interest to be paid on the excess credit taken: Demand for cenvat credit set aside.

  • STO 2012 CESTAT 729
  • Cenvat Credit: Credit of share registry denied on the ground that input service not relatable to Banking & Other Financial Services: Credit held to be admissible.

  • STO 2012 CESTAT 711
  • Cenvat Credit: Demand raised by disallowing credit: Credit taken on onward transportation of gas through pipelines: Since department relied on judgment of Apex Court which has been referred to the Larger Bench: Prima facie case for waiver made out.

  • STO 2012 CESTAT 652
  • Cenvat Credit: Credit denied on the ground that credit not taken within reasonable period of one year not correct.

  • STO 2012 CESTAT 679
  • Cenvat Credit: Discrepancies found in invoices to be addressed individually, blanket rejection of Cenvat credit not permissible: Matter remanded. 

  • STO 2012 CESTAT 705
  • Cenvat Credit: “Related to business”: the appellant should be required to establish integral connection between the service and the business of manufacture of final product for the benefit of CENVAT credit on the service. 

  • STO 2012 CESTAT 629
  • Cenvat Credit: For the period prior to 01.04.2008, cenvat credit on outward freight is admissible.

  • STO 2012 CESTAT 658
  • Cenvat Credit: BSNL sent duty paying documents on capital goods to SSA where the said capital goods are to be used: Even though SSA separately registered with service tax. Credit cannot be denied, even if there is any procedural violation.

  • STO 2012 CESTAT 588
  • Cenvat credit: Capital goods: Used in immovable property: Rectification of mistake allowed. 

  • STO 2012 CESTAT 599
  • Cenvat Credit: Different input services in dispute: Stay granted as out of total demand of Rs.25.77 crores, about Rs.13.14 crores stands appropriated: Certain amounts of credit admissible to the appellants.

  • STO 2012 CESTAT 916
  • Cenvat Credit: CHA Service: CENVAT credit cannot be denied to the receiver of duty-paid inputs by the Central Excise authorities having jurisdiction over the input receiver by revising the assessment of duty at supplier's end.

  • STO 2012 CESTAT 573
  • Cenvat credit : Demand: Stay: When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the case may be, shall pay an amount equal to the credit availed in respect of such inputs or capital goods and such removal shall be made under the cover of an invoice referred to in rule 9, but not input service: Stay granted. 

  • STO 2012 CESTAT 963
  • Cenvat credit: Appellant availed Cenvat credit on 100% of duty paid on capital goods, subsequently they reversed the credit along with interest: Same considered as sufficient compliance for Section 35F.

  • STO 2012 CESTAT 570
  • Abatement: Cenvat credit: Transporters providing certificate for non availment of Cenvat credit: Abatement admissible even though such details not available in invoices.

  • STO 2012 CESTAT 537
  • Cenvat Credit: Capital Goods: Cenvat credit on machineries imported prior to date of obtaining registration is admissible.

  • STO 2012 CESTAT 351
  • Cenvat Credit: Capital Goods: Cenvat credit eligibility is to be determined with reference to the dutiability of the final product on the date of receipt of capital goods

  • STO 2012 CESTAT 454
  • Cenvat credit: credit taken on challan showing payment of service tax, admissible.

  • STO 2012 CESTAT 488
  • Cenvat credit: Credit cannot be allowed on the basis of bank statements showing deposit of tax in Government Treasury: If invoices are not issued by IAL, the appellants cannot take cenvat credit: Demand upheld.

  • STO 2012 CESTAT 430
  • Cenvat Credit: any service availed for the business of manufacturing of final product, the assessee is entitled for input service credit.

  • STO 2012 CESTAT 267
  • Abatement on GTA: Requirement of giving declaration about non availment of Cenvat credit by transporter was taken away subsequently: Matter required to be re-examined.

  • STO 2012 CESTAT 405
  • Cenvat credit: Double taxation: Once there is integral connection between service received and the deposit made, the appellant should get proper credit of the deposit without being doubly taxed for the self same service availed by distribution of such input service to other units of appellant.

  • STO 2012 CESTAT 335
  • Cenvat Credit: Demand: Stay: Cenvat Credit taken and revised return filed after one year: No real loss to Revenue: whether procedural infraction can lead to denial of credit: Pre deposit not required : Stay granted.

  • STO 2012 CESTAT 226
  • Cenvat Credit: Service tax paid on outward transportation eligible prior to 01.03.2006. 

  • STO 2012 CESTAT 239
  • Cenvat Credit: Dispute on “Event Management Service”, “Liasion Services” and “DG set maintenance service” as input service: Prima facie merit found: Stay granted.

  • STO 2012 CESTAT 382
  • Cenvat Credit: Credit denied on the ground that invoices did not bear registration number of service providers: Appellants provided copies of invoices of TV channels and intermediaries and requested that co-relation is possible : Matter remanded.

  • STO 2012 CESTAT 146
  • Cenvat Credit: Capital Goods: Stay: Cenvat credit taken on capital goods received prior to registration: Looking to favourable judgments, stay granted.

  • STO 2012 CESTAT 186
  • Cenvat Credit: Debit Notes: Once assessable value of service provider is intended to include even the reimbursement of expenses, the appellant cannot be denied benefit of Cenvat credit without finding no deposit of service tax by service provider.

  • STO 2012 CESTAT 118
  • Cenvat Credit: Capital Goods: There is no condition that the capital goods for providing output service are to be installed in the premises of the output service provider.

  • STO 2012 CESTAT 85
  • Business Auxiliary Service: Prior to introduction of Cenvat Credit Rules, 2004, if main contractor has paid service tax sub contractor not liable to pay tax.

  • STO 2012 CESTAT 363
  • Cenvat Credit: Demand: Stay: issue of classification is to be decided by the Commissioner of Service Tax at the end of service provider, not by the Commissioner who is dealing with the service recipient: Stay granted.

  • STO 2012 CESTAT 144
  • Cenvat Credit: Estate branch not registered as Input Service Distributor distributed credit in dispute: when the documents produced in support of the claim are credible evidence and also conduct of the appellant does not appear to be questionable: Credit admissible.

  • STO 2012 CESTAT 378
  • Cenvat Credit: GTA Service: even under pre-amended Rule 2(1) of the CENVAT Credit Rules 2004, CENVAT credit was available to a manufacturer of excisable goods in respect of GTA service used for 'outward transportation' of such goods from the factory to the premises of the customers.

  • STO 2012 CESTAT 329
  • Cenvat Credit: Service tax paid on maintenance of garden eligible as input service.

  • STO 2012 CESTAT 119
  • Cenvat Credit: GTA Service: Upto 1.4.2008, credit admissible on GTA service to the recipient of service.

  • STO 2012 CESTAT 1
  • Cellular Telephone Service: Cenvat Credit: Tower cannot be considered as a 'component' of antenna to be classified as capital goods under Rule 2(a)(A)(iii): It cannot be even considered as accessories of antenna : towers cannot also be considered as "goods" and, for that matter, to be "inputs" under Rule 2(k): Explanation 2 as it stood prior to the amendment, in this view of the matter, the amendment is also not applicable to a provider of output service: The definition of ‘capital goods’ primarily requires the capital goods to be classifiable under specific Chapters, Headings and Sub-headings mentioned therein. PFBs fall under Chapter 94 which is not specified in sub- clause (i). They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods: Office chairs which are goods of Chapter 94 cannot be held to have been used for providing telecom service: No evidence that chairs or printers were used for providing mobile telephone service, both these items would stay outside the ambit of the definition of "input" also.

  • STO 2012 CESTAT 42
  • Cenvat credit: Demand: Stay: Credit denied on input services relating to insurance: Prima facie for waiver made out in view of judgment of Honorable Karnataka High Court.

  • STO 2011 CESTAT 305
  • Service Tax: Demand Remand: While arriving at correct tax liability, the Commissioner to consider the issue of Cenvat credit availed by the appellant after due verification of the duty paying documents. The Adjudicating Authority also should keep in mind that assessee is disputing only the inclusion value of the cost of land to be included in the aggregate value of the services rendered by them and not the amount of Services Tax admitted and paid by them under ‘Health Club and Fitness Services’.(Para 7).The appeal filed by the Revenue is disposed off as indicated herein above.(Para 8).

  • STO 2011 CESTAT 310
  • Cenvat credit: Cenvat credit on Tower/Shelter etc. and tower material i.e. angles, channels, beams etc. and pre-fabricated building, shelter, PUF channels used in the manufacture such Towers, denied on the ground that the same cannot be held to be inputs: In view of judgments of other benches in similar issues waiving pre deposit : Unconditional stay granted.

  • STO 2011 CESTAT 324
  • Cenvat Credit: Stay: Credit availed on the basis of judgments of High Court for demerger of units: Prima facie case made out for waiver.

  • STO 2011 CESTAT 294
  • Service Tax: GTA services: Demand: A perusal of para 2.4.2 of CBEC's Excise Manual of Supplementary Instructions shows that there is no legal bar to the utilisation of Cenvat credit for the purpose of payment of service tax on the GTA services. Apart from the above, even as per Rule 3(4)(e) of the Cenvat Credit Rules, 2004, the Cenvat credit may be utilised for payment of service tax on any output service. In the present case also, the service tax was paid out of the Cenvat credit on GTA services and, hence, the respondents were well within their right to utilise the Cenvat credit for the purpose of payment of service tax. (Para 6).Therefore, the impugned order is set aside and the appeal is allowed.(Para 7). 

  • STO 2011 CESTAT 147
  • GTA Service: Input tax credit can be used for discharging service tax liability, as it is a deemed taxable output service.

  • STO 2011 CESTAT 279
  • Service Tax: Intellectual Property Service: Rule 6(3)(c) of CCR: Inputs and input services had no nexus with the output services of the assessee viz. intellectual property service: Alcoholic beverages not being excisable goods do not fall under exempted goods as defined under Rule 2(d) of CCR. Therefore, the provisions of Rule 6(3)(c) of CCR are not attracted in the instant case. The assessee can utilize the credit to discharge the tax liability for service provided without being limited by the ceiling of 20% of the tax due.(Para 9). Complete waiver of pre-deposit of the dues adjudged against the assessee ordered and stay recovery thereof pending decision in the appeals.(Para 10).

  • STO 2011 CESTAT 277
  • Service Tax: Advertisement services: Demand: Denial of cenvat credit on inputs: The issue involved in this case is regarding eligibility of cenvat credit availed by the appellant on MS angles, tubes, plates, sections, sheets, channels, bars, etc for construction of unipoles, on which advertisements are displayed. The erection of unipoles is done by the appellant after the said unipoles are fabricated by using the angles, tubes, sections and plates. Whether the said goods would fall under the category of 'tubes and fittings' under ‘Capital Goods' is an arguable issue and not free from doubt and eligibility for cenvat credit can be gone into detail only at the time of final disposal of the appeal. Partial pre-deposit is ordered and on compliance the recovery of balance amounts is stayed till the disposal of the appeal.(Para 6). 

  • STO 2011 CESTAT 246
  • Service Tax: Refund: The assessee is in the business of providing output service being managers of mutual funds for which the input service has been utilized as mandatory requirement under the SEBI Regulation. The department is in appeal since the lower appellate authority has allowed the refund. The assessee have utilized the input service in providing impugned output service, hence, the department’s appeal is dismissed.

  • STO 2011 CESTAT 222
  • Service Tax: Software development and support services: CENVAT: Refund: The claim of CENVAT Credit on the input service received prior to the registration by the appellant, there is no provision in the CENVAT Credit Rules specifically prohibiting availment of CENVAT Credit in respect of inputs/input service which have been received prior to their registration as an output service provider. So long as they can establish that they have born the incidence of duty on the inputs/input services and they have utilized the same in providing taxable output services, they are eligible for the tax credit on the inputs/input services.(Para 5)

    Credit cannot be denied on the basis of invoices wherein registration numbers were not mentioned so long as the payment of tax was established and the said input service was utilized in the provisions of output service. Therefore, the appellant is eligible for the amount of service tax credit and consequent refund in respect thereof.(Para 6)

    The coffee machine has been maintained by the appellant for vending of coffee to its employees. It is the nature of a catering service provided to the employees which is very essential, especially for the employees working round the clock as in the case of IT companies. Therefore, repair of the coffee vending machine is an input service in or in relation to the output service provided by the, appellant and therefore they are rightly entitled to the service tax paid on the repair of the coffee vending machine as it is an eligible input service.(Para 7)

    The appeals filed by the appellant in this case are allowed with consequential relief,(Para 8)

  • STO 2011 CESTAT 151
  • Service Tax: CENVAT Credit of Service Tax Paid on commission: Input service: It is established that the foreign commission agent services received by an assessee for sale promotion in foreign land are eligible input services for the purpose of MODVAT Credit. As such, the appellant has been able to make out a good prima facie case in their favour so as to dispense with the condition of pre-deposit of duty and penalty. (Para 2). Stay Petition as also appeal gets disposed off in above terms.(Para 3).

  • STO 2011 CESTAT 276
  • Cenvat Credit: Inadmissible credit taken and availed: Interest payable as per Apex Court judgment.

  • STO 2011 CESTAT 274
  • Cenvat credit: Input tax credit: In view of Bombay High Court judgment in Coca Cola activities relating to business are entitled as credit.

  • STO 2011 CESTAT 257
  • Stay: Demand for 1997 raised in 2005: Taxability of DTA services: Waiver from pre deposit granted.

  • STO 2011 CESTAT 252
  • Service Tax: Cenvat Credit: Input Services: Mandap Keeper Services: During the course of advertising and .publicizing the product the assessee enlisted the services of a mandap keeper which is an input service. This confirms to the definition of input service as defined under Cenvat Credit Rules, 2004. In the show cause itself the demand was raised on the basis of invoice issued by Bhagwati Banquets & Hotel Ltd., Ahmedabad which is an adequate proof of providing mandap keeper service. The appeal is allowed. (para 2,3)

  • STO 2011 CESTAT 285
  • GTA Service: Manufacturer being deemed provider of taxable service not entitled to use cenvat credit for discharging service tax liability for GTA service.

  • STO 2011 CESTAT 217
  • Service Tax: Service tax on GTA services: Demand: Since the appellant are not manufacturing any final product or providing any taxable services (during the period prior to 19.04.2006 or after 19.04.2006), the services of telephone, security services, repair and maintenance services, scientific or technical consultancy services etc., can not be treated as the input services for their “deemed output service” i.e. the GTA services received by them. Therefore, in respect of GTA service received by the Appellant, there is no question of payment of service tax through Cenvat Credit account and the same has to be paid in cash.(Para 8.1, 11). The appeal stands disposed of (Para 16).

  • STO 2011 CESTAT 250
  • Service Tax: Cenvat Credit: Remand: Rule 6(5) of the Cenvat Credit Rules, 2004: Learned Consultant states that they are ready to assist the jurisdictional Commissioner and to demonstrate before him that they qualify for credit under Rule 6(5) of the Cenvat Credit Rules, 2004. Set aside the impugned order and remand the matter to the original authority for fresh decision. The appellants shall be free to demonstrate before him with documentary evidence that they qualify for Cenvat credit under Rule 6(5) of the Cenvat Credit Rules, 2004. (para 2)

  • STO 2011 CESTAT 221
  • Service Tax: Demand: Cenvat: Waiver of pre-deposit: The service tax paid on advertisements, sales promotion etc. in relation to aerated water (final product) was admissible as credit for payment of excise duty on concentrate (intermediate). Appellants have a good case against the impugned demand of service tax. Hence, there is waiver of pre-deposit and stay of recovery in respect of the dues.(Para 2)

  • STO 2011 CESTAT 195
  • Service Tax: ‘Architect Services’: Demand: Waiver of pre-deposit: Rain water harvesting system is set up with the objects of raising the ground water level. Water is essential for the assessee to manufacture its final product. Therefore, ‘Architect Service’ availed by the assessee is an admissible input service. There is waiver of pre-deposit of the dues and stay on recovery thereof pending decision in the appeal.

  • STO 2011 CESTAT 132
  • Service Tax: Waiver of pre-deposit: The short question raised in this appeal is, whether the tower on which the antenna is mounted by the appellant constitutes capital goods for the purpose of Rule 3 of the Cenvat Credit Rules 2004 and whether the Tribunal is justified in directing the appellant to make pre-deposit. Admittedly, in several similar appeals filed by the appellant the CESTAT has granted waiver of pre-deposit in all those appeals which are pending since July 2007.(Para 2). As such, unconditional stay has to be granted. Accordingly the stay petition is allowed.(Para 5). 

  • STO 2011 CESTAT 172
  • Service Tax: Taxable and exempted Services: Rule 6(3)(c) of the Cenvat Credit Rules, 2004: Remand: The provisions of the Rule restricting utilization of credit to the extent of 20% of the payable is a very clear cut provision and the concerned branch of the SBI was required to follow the same more so when they are claiming to be service tax collectors. As such, several ingredients required for the purpose of invoking longer period of limitation is available in this case. As the lower appellate authority has not gone into the merits of the case, in view of his finding on time bar, the appeal is remanded to him for fresh decision as regards the merits of the case. The department’s appeal is allowed in the above terms. (para 5,6)

  • STO 2011 CESTAT 134
  • Service Tax: Refund on export services: The view taken by the Revenue that invoice is not sufficient to link the export goods with the export cannot be sustained. What is required to be seen is whether basic document namely shipping bill and other enclosures are available with the claim and it is not necessary that in respect of each and every service tax claim, separate copies of documents are produced. What is required to be seen is whether the export invoice contains all the relevant details and the invoice number is available in the receipts issued by service providers and the invoice produced by the exporter in respect of goods has a corresponding shipping bill/ARE-1. No purpose will be served in requiring the claimants of refunds to produce multiple copies of same documents in respect of each and every individual claim of service tax credit. Since invoices have been produced and shipping bill and ARE-1, prima-facie appellants seem to be eligible for refund. The impugned order is set aside and the matter is remanded to the original adjudicating authority for verification and consideration of the claim afresh.(Para 3). 

  • STO 2011 CESTAT 219
  • Service Tax: Cenvat Credit: Refund: Chartered Accountant’s Service: The ‘Chartered Accountant’s service’ involved accounting and auditing of the transactions assessee. Auditing and accounting are specifically included in the definition of input service. (para 4)

    Service Tax: Cenvat Credit: Refund: Manpower recruitment and supply service: This service is an essential input and the assessee in entitled to credit of the service tax paid. (para 4.1.)

    Service Tax: Cenvat Credit: Refund: Outdoor catering service: The appellants have submitted an affidavit by the Director of the appellant company to the effect that 50% of the cost towards catering is recovered from the employees. It is accordingly held that the asseessee is entitled to credit of actual service tax incurred by it under this head. (para 4.2.)

    Service Tax: Cenvat Credit: Refund: General Insurance Service: Insuring the property and premises of the service provider is an activity related to its business. It is an eligible input service. (para 4.3.)

    Service Tax: Cenvat Credit: Refund: Security Agency Services: Assessee employs security staff to guard the premises from where it operates. This is an activity which cannot be dispensed with by the assessee to carry on its activities. Therefore, the tax paid under the head ‘security service’ qualifies as input service. (para 4.4)

    Service Tax: Cenvat Credit : Refund: Technical inspection service: The service is akin to ‘credit rating’ covered by the definition of input service in Rule 2 (I) of Cenvat Credit Rules, 2004. This technical inspection certification therefore is an admissible input service for the assessee. (para 4.5.)

    Service Tax: Cenvat Credit: Refund : Asset Management Service: Remand: The assessee relies on the decision in Convergys India Pvt. Ltd. Case (supra) wherein the Tribunal held that services of asset management used in connection with procurement of other input service were input services and allowed credit. In the circumstance, the dispute regarding admissibility of tax paid under this head is remanded to the original authority to examine the case afresh after hearing the appellant. (para 4.6)

  • STO 2011 CESTAT 208
  • Service Tax: Cenvat Credit: Pre-deposit: The applicants are having a common account and they have utilized the entire credit against the output services and have not utilised the credit for clearing manufactured products. As per provisions of Cenvat Credit Rules, no where it is specified that if an assessee is engaged in both activities i.e. manufacturing and providing services, the assessee has to maintain separate cenvat credit account of input/output service. Therefore, grant wavier of entire demand of cenvat credit along with interest and penalty and stay demand during pendency of the appeal. (para 6)

  • STO 2011 CESTAT 120
  • Service Tax: Rate of Tax as on date of rendering of Service: The submissions of the learned counsel that the rate of tax applicable was the rate on the date of rendering of service is to be accepted in the light of the Tribunal's decision in the case of Reliance Industries (supra). (para 6)

    Service Tax: Adjustment of Excess paid tax: Rule 6(4) of the Service Tax Rules, 1994: Remand: The adjusting of excess payment against short-payment has to be done in the manner provided under Rule 6(4)(a) of the Service Tax Rules, 1994, as submitted by the learned SDR. However, this exercise has not been done and no specific details of the short-levy relating to month-wise or quarter-wise are available. On this ground alone the mater requires to go back to the original authority for fresh consideration. (para 6)

  • STO 2011 CESTAT 115
  • Service Tax: Service of renting immovable property coming under Section 65(105) (zzzz) of Finance Act, 1994: Utilisation of cenvat credit: CENVAT Credit Rules have been framed in terms of powers conferred by Section 37 of the Central Excise Act, 1944 and Section 94 of the Finance Act, 1994. Rule 3(1) enables a 'manufacturer' or a 'provider of taxable service' to take credit of specified duties and utilize them to discharge duty liability under Rule 3(4) of the CENVAT Credit Rules. A credit can be utilized for payment of any duty of excise on any final product or for payment of service tax on any output service. The respondent is registered as a service provider for providing the services of renting of immovable property. The credit taken by them as manufacturer/service provider has been used both for paying excise duty and for paying service tax. The rules permit taking of credit under a common pool and permit use of the credit from the common pool for different purposes and there is no restriction placed to the effect that credit accounts should be maintained for use for manufacture of excisable goods and for use for providing services. Therefore, the view taken by the Commissioner (Appeals) cannot be faulted. The respondents have registered themselves as service provider of service of renting of immovable property and paying service tax as provider of output service and therefore the utilization of credit taken by them is valid.(Para 6). The appeal is therefore dismissed(Para 7). 

  • STO 2011 CESTAT 126
  • Service Tax: Security Agency Services: Cenvat Credit: Input Services: The security services used in the saltpan though belonging to the respondents are clearly outside the factory premises as recognized under the central excise law. In view of the specific exclusion of salt pan from the definition of the term factory which definition is applicable to the Cenvat Rules, the security services which are area specific cannot be treated as input services. (para 6.3)

    Service Tax: Input Services: Salt is subject to 'nil' rate of duty. Therefore, other independent suppliers of salt cannot avail credit of security services utilized in their saltpan. (para 7)

    Service Tax: Security Agency Services: Cenvat Credit: Limitation: Penalty: The belief of the respondents that they were eligible to take credit of service tax paid on security services utilized in a captive saltpan cannot be treated as other than bonafide belief. Therefore, no demand can be sustained invoking the extended period and further penalties are not justified. (para 8)

  • STO 2011 CESTAT 231
  • Service Tax: Business Auxiliary Services: Commission: Services received from abroad: Cenvat Credit utilised for discharge of Tax under Section 66A: The appellant is deprived of making use of the Cenvat credit. Since the matter in controversy involves question of law, there may be waiver of pre-deposit during pendency of the appeal. (para 3)

  • STO 2011 CESTAT 109
  • Service Tax: Cenvat Credit: Refund: Appeal: Speaking Order: The Commissioner (Appeals) had not passed a speaking order on the merits of dispute. He found that the services involved were essential for the output service rendered by the respondents and directed the original authority to reconsider the refund claim in the light of the CBEC Circular No. 120/01/2010 dated 19.01.2010. Now that the original authority has passed an order in terms of remand directions, though not legal, the appeal has become infructuous. The appeal is therefore rejected. (para 4)

  • STO 2011 CESTAT 201
  • Service Tax: Storage and Warehousing: Demand: Remand: It is not able to conceive a situation where the oil companies keep three different petroleum products always in order to push, a consignment of any particular petroleum product. (Para 8)

    The impugned order is set aside and remand the dispute to Commissioner for taking a fresh decision, for issuing a speaking order explaining the factual matrix clearly and then to arrive at a decision on the legal dispute. The appeal is thus allowed by way of remand.(Para 9)

  • STO 2011 CESTAT 87
  • Service Tax: GTA Services: Demand: In para 5.7 of letter F. No. 341/18/2004-TRU(Pt) dt. 17/12/2004 of the Ministry of Finace, it was clarified that:- “5.7 If service tax due on transportation of a consignment has been paid or is payable by a person liable to pay service tax, service tax should not be charged for the same amount from any other person, to avoid double taxation”. Matter remanded to the Commissioner for taking a fresh decision.(Para 3). The appeal is thus allowed by way of remand. Stay petition also stands disposed of.(Para 6).

  • STO 2011 CESTAT 107
  • Service Tax: Renting of immovable property: Stay: The stay order is modified to the effect that the appellants shall freeze the credit to the extent of 75% of the amount confirmed and also keep balance 25% of the credit which would accrue in future in accordance with the stay order dated 21.10.2010.(Para 3). 

  • STO 2011 CESTAT 193
  • Service Tax: Demand: Penalty U/S 78: Appellant may be eligible for the credit of service tax paid on input services and they have made good the same by taking the Cenvat Credit. Since the eligibility to the Cenvat Credit needs to be verified from the factual matrix, the Adjudicating Authority should go into the matter and re-consider the issue afresh. Appeal is allowed by way of Stay petition also disposed off.(Para 5). 

  • STO 2011 CESTAT 106
  • Service Tax: Refund: The perusal and analysis of the entire materials required for the purpose of appropriate decision on the dispute has to precede the actual decision. It appears that the Commissioner (Appeals) did not consider this settled principles of law while deciding the matter in hand. Otherwise, he would not have disposed of the appeal by observing that the refund is granted subject to production of certificate from the Chartered Accountant. It was necessary for the Commissioner (Appeals) to peruse such certificate prior to the decision in the matter. On this count also, the impugned order cannot be sustained and is liable to be set aside.(Para 9). Matter is remanded to the Commissioner (Appeals) to decided the same afresh(Para 19). 

  • STO 2011 CESTAT 1
  • Service Tax: Cenvat Credit: Construction and renting of immovable property: Pre-deposit: The arguments advanced and discussed above would show that the issue is of interpretation and also of admissibility of Service Tax paid on various services and require detailed consideration of the relevant rules as well as precedent decisions on the subject. Under these circumstances, the amount of approximately Rs.2 lakhs already deposited by the appellant is sufficient for the purpose of pre-deposit. (para 4,5)

  • STO 2011 CESTAT 77
  • Service Tax: Cenvat credit: Demand: Suppression of facts: It is established that input service credit is available to fixed telephone and mobile telephones given to the employees of a unit.(Para 6). Revenue was not able to show evidence that the respondents have suppressed the factual details, in the absence of any contrary evidence, therefore, the impugned order is correct. The appeal filed by the Revenue is rejected.(Para 7).

  • STO 2010 CESTAT 748
  • Cenvat credit: No provision requires reversal of credit of service tax paid on input service availed in respect of inputs or capital goods removed as such from the factory of production of final products.

  • STO 2010 CESTAT 751
  • Cenvat Credit: Penalty: Commissioner (A) allowed cenvat credit against which no appeal filed by department, shows that appellants were eligible for cenvat credit, hence, no penalty should be imposed.

  • STO 2010 CESTAT 704
  • Service Tax: Goods Transport Agency Service: Cenvat credit utilised for discharge of Service tax liability by a deemed service provider: Perusal of para 24.2 of CBEC’s Excise Manual of Supplementary Instructions shows that there is no legal bar to the utilization of Cenvat credit for the purpose of payment of service tax on the GTA services. Apart from the above, even as per Rule 3(4) (e) of the Cenvat Credit Rules, 2004 the Cenvat credit may utilized for payment of service tax on any output service.The question of law having been answered in favour of the assessee as aforesaid, the present appellant succeeds and its appeal is allowed. (para 5).

  • STO 2010 CESTAT 686
  • Service Tax: Cenvat Credit: Rule 6 (3) of the Cenvat Credit Rules, 2004: Taxable Services and Exempted Services: Prima-facie the trading activity involved does not constitute exempted services for the assessee to come within the mischief of rule 6(3)(c) of CCR. Therefore, prima-facie, the demand of service tax to the tune of Rs. 3,55,05,053/- is not sustainable. (para 5)

    Service Tax: Cenvat Credit: Input Service Distributor: Rule 6 (3) of the Cenvat Credit Rules, 2004: Exempted Services: In the case of Godfrey Philips India Pvt. Ltd. (supra), it was held that the eligibility or otherwise of the service tax credit has to be examined at the end of ISD only. Therefore, prima-facie, Adjudicating Authority has no jurisdiction to raise the question of admissibility or otherwise of the impugned credit allotted by the ISD and availed by the assessee. Total waiver of pre-deposit of dues adjudged against the appellant and stay recovery thereof pending disposal of the appeal. (para 7)
     

  • STO 2010 CESTAT 648
  • Service Tax: GTA Services: Demand: The appellants are permitted to maintain a common Cenvat account into which credit of duty paid on inputs and service tax paid on input services are allowed to be taken as credit. The purpose for which use of the Cenvat account has been permitted has been listed. There is no restriction placed for utilisation of Cenvat credit by the manufacturing unit towards payment of service tax as a service provider or deemed service provider. In view of the above, there is no irregularity on the part of the appellants using Cenvat credit account. (Para 5). The order of the Commissioner (Appeals) is set aside and appeal is allowed with consequential relief as per law.(Para 6). 

  • STO 2010 CESTAT 762
  • Cenvat Credit: Not entitled to avail input service credit for repairs of toilet blocks in the residential colony.

  • STO 2010 CESTAT 736
  • Input tax credit: Credit received as recipient of GTA service can be used for paying service tax on service tax payable as GTA on receipt of inputs.

  • STO 2010 CESTAT 724
  • Demand: Extended period: Merely not declaring information which is not required by the law is not suppression of facts.

  • STO 2010 CESTAT 651
  • Service Tax: GTA Services: It stand observed by the Hon’ble High Court that in terms of para 2.4.2 of CBEC Excise Manual of Supplementary Instructions, there is no legal bar to the utilisation of Cenvat credit for the purpose of payment of service tax on the GTA Services. It stands further observed that apart from the above, even as per Rule 3(4)(e) of the Cenvat Credit Rules, 2004 the Cenvat credit may be utilised for payment of Service Tax on any output services. Accordingly, the appeals filled by the Revenue stand dismissed by observing that a Commissioner (Appeals) have rightly held that the respondents were entitled to pay service tax from Cenvat credit.(Para 7,8). 

  • STO 2010 CESTAT 472
  • Contradictory Claims: Adjudication: When the register was produced before the learned Commissioner (Appeals), one would expect him to verify the register and record his observations. Once an allegation is made in the show cause notice, there is a need to verify the records: Matter remanded back.

  • STO 2010 CESTAT 531
  • Service Tax: Repair and maintenance services: Taxable event: Demand: It is established that unless the nexus is established between the services rendered and the business carried on by the assessee, the benefit of CENVAT credit is not allowable. In the present case, in our opinion, rendering taxable services at the residential colony established by the assessee for the benefit of the employees, is not an activity integrally connected with the business of the assessee and therefore, the Tribunal was not justified in holding that the services such as repairs, maintenance and civil construction rendered at the residential colony constitutes 'input service' so as to claim credit of service tax paid on such services under Rule 2 (1) of the CENVAT Credit Rules, 2004.(Para 5). It is clear that there is no nexus of input services with the manufacturing of the finished goods viz., cement and hence, the respondents are not entitled to credit of service tax paid on such services. Accordingly, the impugned Order in Appeal is set aside and the impugned Order in Original is restored.(Para 6). 

  • STO 2010 CESTAT 652
  • Service Tax: Liability of sub contractor: Demand: There is no any provision in the Finance Act, 1994 to grant immunity to the sub-contractor from levy of service tax when taxable services were provided by them.(Para 5). There was non-compliance to the law by the sub-contractor appellant. When the appellant is made liable under Finance Act, 1994 and has paid taxes, cum-tax benefit cannot be denied. So also if there is benefit available towards Cenvat credit that shall not be deniable subject to scrutiny under the provisions of Cenvat law.(Para 6). There is no substance in the arguments that the proceedings is time barred when there is escapement of scrutiny and the appellant did not seek registration to claim its bonafide. So also returns were not filed to claim bonafide. Therefore, there shall not be any concession in penalty. (Para 7). 

  • STO 2010 CESTAT 592
  • Service Tax: Engineering Consultancy service availed from Foreign Service provider during the period 2002-03 and 2004-05: Scope and liability: Service tax was payable on the part of consultancy service w.e.f. 1.1.2005 and particular fact made the appellant handicapped to claim Cenvat credit. Record also transpires that while passing the order, the judgment of the Apex Court affirming Indian National Ship Owners Association Vs. UOI – STO 2009 Bom 78 was not before him. So also, following the decision of the Bombay High Court in the same case the order passed by the Tribunal in the case of Dimensional Stone Vs. CCE, Jaipur - STO 2009 CESTAT 1052 was not also not before him. Therefore, Cenvat credit is not admissible. The law existing during the year 2003-04 & 2004-05 have not brought foreign engineering consultancy service into the fold of service tax. Therefore, it would be proper to re-examine issue as to immunity from taxation for the material period in the light of the decision of the Apex Court affirming the decision of the Hon’ble High Court of Bombay in the case of Indian National Ship Owners Association case (Supra).Pre-deposit waived(Para 4,5).

    Stay granted.

  • STO 2010 CESTAT 612
  • Service Tax: Good Transport services: The appellants did not provide any taxable service, though they did manufacture an excisable product. They were Iiable to pay service tax on GTA Service received by them in connection with clearance of their product from factory. The GTA Service so received by the appellants would have been covered under the definition of "input service" under Rule 2(1). By virtue of the Explanation, it shall be deemed to be "output service". In other words the appellants, while paying service tax on GTA Service availed in connection with removal of their final product from factory were doing so on an "output service" and therefore, they were entitled to utilize, for payment of service tax on such service credit of the tax paid on the input GTA service availed by them in connection with receipt of inputs into their factory.(Para 4). Impugned order is unsustainable and is liable to be set aside(Para 5). 

  • STO 2010 CESTAT 614
  • Service Tax: Banking and Other Finance Services: Refund claim of unutilized service tax credit under Rule 5 of Cenvat Credit Rules, 2004 read with Notification. No. 5/2006CE (N.T.) dt. 14/3/2006: Notification No.5/2006-CE(N.T.) dt. 14/3/2006 which was relied upon by both sides talks about the amount of refund to be granted to an assessee based upon the formula in that notification may also apply. We find that this aspect has not been examined by the lower authorities while rejecting the refund claims filed by the assessee. It is seen from the records that the appellant is able to produce a certificate issued by the Chartered Accountant, wherein there is bifurcation of the value of the taxable and non-taxable service, the benefit of the refund to the assessee for the services exported by them should not be denied, for the reason that the details are not explained properly.(Para 10). The appeal is allowed by way of remand to the Adjudicating Authority(Para 12). 

  • STO 2010 CESTAT 638
  • Service Tax : Refund of accumulated Cenvat credit under Rule 5 of Cenvat Credit Rules, 2004: As per Rule 2 (I) of the Cenvat Credit Rules, 2004, input services are defined as under:-
    “any service

    (i) used by a provider of taxable service for providing and output service; or

    (ii) used by the manufacturer, whether directly or indirectly, in relation to the manufacture of final products and clearance of final products from the place of removal,

    And includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory of premises, advertisement or sales promotion, market research storage upto te place or removal, procurement of inputs, activates relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training computer networking credit rating, share registry and security, inward transportation of input or capital goods and outward transportation upto the place of removal”. Therefore, credit available on (i) Courier service (inland)(ii) Advertising services(iii) Security services (iv) Transport services, ie rent a cab services(v) Professional services(vi) AMC for Other equipments or maintenance or repair service other than computers(vii) placement services(viii) clearance charges(ix) Outdoor catering services(x) Insurances services(xi) Air travel agent’services (xii) Telephones(xiii)Rent a cab services. Matter remanded (Para 3).
     

  • STO 2010 CESTAT 689
  • Service Tax: Refund: Accumulated credit of Service Tax: Stay application: When services were held to be taxable and credit allowed, refund should be sanctioned. Input services included activities required to run the day-to-day business. Reject the stay application filed by the Revenue. (para 2) 

  • STO 2010 CESTAT 484
  • Service Tax: Cenvat Credit: Auditors Certificate as proof of availment and utilisation of Cenvat Credit: The Tribunal, in the appellants’s own case in relation to prior period, had directed the Commissioner to take into consideration the auditor’s certificate to decide as to whether there was a proof of availment and utilization of the Cenvat credit in accordance with provision of law. (para 5)

    Service Tax: Cenvat Credit: Adjudicating authority travelled beyond the scope of Show Cause Notice: The proceedings were sought to be initiated for the want of documentary proof in relation to availment and utilization of the Cenvat credit whereas the denial under the impugned order appears to be on the basis of eligibility criteria for availing the Cenvat credit. (para 5)

    Service Tax: Cenvat Credit: Payment received before rendering of Service: Rule 6 (1) of Service Tax Rules: Pre-deposit: It is difficult to accept the contention of the Department that the commission paid in advance could be considered as the payment for the service provided even prior to actual rendering of the service. In the result, therefore the application is allowed and amount demanded under the impugned order is waived till the disposal of the appeal. (para 6,7)

  • STO 2010 CESTAT 706
  • Cenvat Credit: Credit of various input services denied on the ground that services were not used in or in relation to the manufacture of the finished goods or for removal of finished goods upto the place of removal: Fact that appellants were also providing taxable output service not considered : Matter remanded with directions to decide in light of judgment of Honorable Mumbai High Court in Coca-Cola case.

  • STO 2010 CESTAT 582
  • Service Tax: GTA services: Abatement of 75% in terms of Notification No.32/2004-ST dated 03.12.04: Scope: Notification No.32/2004-ST provides for abatement of 75% of the gross amount charged from the customer for the purpose of calculating the liability of service tax subject to the condition that the no Cenvat credit has been availed and benefit of Notification No.12/2003 has not been availed. The respondents are paying the service tax as per the reverse charge mechanism and the relevant notification whereby the service receiver is liable to pay the tax. The question to be decided is that how exactly it should be determined as to whether the conditions are fulfilled. The Board had clarified that the endorsement has to be made on the consignment note. The notification, as such, does not stipulate any such condition. Notification requiring the receiver of the service to pay the tax also does not stipulate any such condition. Therefore, the requirements prescribed by the Board as per circular cannot be mandatory and cannot be used for denying substantive rights.(Para 3).
    Revenue appeal rejected.

  • STO 2010 CESTAT 502
  • Service Tax: Maintenance service whether input service: Limitation of period: Penalty u/s 78: Show cause notice for denial of credit of duty availed on 01.6.06 was issued on11.9.07 i.e. after normal period of limitation of one year. Having accepted that the appellants had filed monthly returns showing availment of impugned credit, no suppression or mis-statement with an intent to evade duty, can be attributed to them. In any case, the same Commissioner (Appeals) has set aside the penalty imposed upon the appellants by following the Tribunal's decision in the case of M/s. Rajhans Metals Pvt. Ltd, which has observed that the disputed issue is issue of interpretation and there is no justification for imposition of penalty. If that be so i.e. the issue is as regards interpretation of law, the appellant cannot be held to have any malafide intention for availing the credit. As such, the demand of credit having been raised after the normal period of limitation is hit by limitation and is time barred. For the said reasons, demand of duty beyond the period of limitation is set aside. (Para 5).

  • STO 2010 CESTAT 621
  • Service Tax: Banking and other Financial Services: Denial of Credit on input services: Demand: Different opinion: The services utilized should be in or in relation to the providing of output services. The ownership of the premises per se is not relevant for making credit eligible. If the appellant is rendering the services from a rented premise, still if the services utilized are input services, the credit shall be available. Merely because the service provider owns several premises some of which were not connected to the providing of services, the services utilized in the premises, in my considered view, cannot be treated as 'input services' and made eligible for CENVAT credit. The appellants are not eligible for the credit claimed by them.(Para 8.3). However it was held by the Tribunal that the definition of 'input service' includes "services used in the premises of a provider of output service". There is no dispute that the staff quarters are the premises of the bank. Therefore, they are covered by the definition of 'input service' in Rule 2(1) and, therefore, they are entitled to take CENVAT credit of the entire service tax paid.(Para 10). Matter kept before Hon'ble President for his consideration for referring the matter to a Division Bench.(Para 13).
     

  • STO 2010 Ori 813
  • Service Tax: Validity of the circular clarifying amendment to Rule 2(k): Since the impugned Circular F. No. 267/11/2010-CX.8, dated 8-7-2010 issued by C.B.E. & C. clarifying amendment to Rule 2(k) of Cenvat Credit Rules, 2004 will not be relied upon for any purpose by the Revenue in course of the pending proceeding, there exists no requirement or necessity for quashing the impugned Circular.(Para 7).

    Quashing the show cause notice: It shall remain open for the petitioner to canvas all the legal contentions as well as the necessary case law before the Commissioner, Central Excise, Customs & Service Tax, Bhubaneswar-I and the same shall be considered and disposed of by the Commissioner on its own merit.(Para 9).
     

  • STO 2010 CESTAT 423
  • Service Tax: Cenvat Credit: Input Services: The Commissioner (Appeals) has passed the impugned order relying on a decision of the Tribunal in the case of Punjab steels Vs. Commissioner of Central Excise, Chandigarh - 2009-TIOL-1315-CESTAT-DEL = STO 2009 CESTAT 1192 and held that when Cenvat availed inputs are removed as such, the assessee was required to reverse only the Central Excise duty credit. The application filed by the Revenue is debarred on merits. (para 3)

  • STO 2010 P&H 827
  • Service Tax: Input removed as such, whether service tax credit availed while receiving such inputs is also need to be reversed : The view as expressed by the Tribunal is strictly in conformity with the Rules. Rule 2(k) of the Rules defines ‘input’, whereas Rule 2(l) defines ‘input service’, meaning thereby both the terms have been defined independently. Rule 3 defines the term ‘Cenvat credit’, which includes duty paid under various enactments and also the service tax leviable under Section 66 of the Finance Act, 1994. Rule 3(5) of the Rules only talks about the Cenvat credit taken on inputs or capital goods. It does not refer to the Cenvat on input service, whereas Rule 5, on which reliance is sought to be placed by the Revenue, specifically talks about the Cenvat credit on any input or input service used in the manufacture of final product. This rule pertains to refund in case of exports, which stands altogether on different footings. Once the rule-making authority has defined the terms specifically and used the same in different provisions consciously, the argument of learned counsel for the Revenue that merely by analogy even if in one provision both the terms have been used, the same should be read in the other provision as well, where it has not been specifically mentioned, has no legs to stand, as the tax cannot be levied merely by inference or presumption. It is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. Words cannot be added or substituted so as to give a particular meaning.(Para 10). Appeal dismissed (Para 11). 

  • STO 2010 CESTAT 217
  • Business Auxiliary Service: Export of services abroad is exempted.

    Market Research Services: Activity of analyzing market research reports coming from abroad. Prima facie, amounts to rendition of Market Research Services.

  • STO 2010 Guj 812
  • Service Tax: Admissibility of Cenvat credit: In the case of the respondent itself, Commissioner (Appeals) has held that it is entitled to credit of the service tax paid by it on mobile phones, rent a cab, CHA and Surveyor charges and professionals. Hence, in absence of any material change justifying the revenue to take a different view of the matter, the question could not have been reopened and a different and contradictory stand could not have been taken. In the circumstances, no infirmity can be found in the impugned order of the Tribunal in relation to admissibility of CENVAT credit. (Para 5). The conclusion arrived at by the Tribunal being based upon a finding of fact, in absence of any challenge to the said finding of fact on the ground of perversity, the same does not give any rise to any question of law.(Para 6). 

  • STO 2010 All 808
  • Central Excise: Cenvat: Utilisation: If any amount is credited in a Cenvat account either by way of Cenvat credit or otherwise which is not admissible and if such amount is utilized for the purposes of the payment of the Central Excise Duty only in that situation it can be said that the duty has not been properly paid and the consequences of the non-payment of duty will follow but if any amount wrongly credited in the Cenvat account is not utilized in making the payment of the excise duty on the final products, it leads to no consequence.(Para 8).

    Interest and penalty: Instead of claiming refund separately, the Assessee has taken Cenvat Credit of the said amount in the Cenvat account. Such amount credited in the Cenvat account was available for the payment of duty but the same was not utilized for payment of duty and subsequently, the Assessee has reversed the Cenvat Credit entry in the Cenvat account. The Apex Court in the case of Commissioner of Central Excise, Mumbai-I v. Bombay Dyeing & Manufacturing Company Limited, reported in 2007 (215) E.L.T. 3 (S.C.) has held that where before the utilization of the credit amount if the entry is reversed it amounts to not taking credit. Once the credit is reversed before its utilization in the Cenvat account it does not amount to taking of credit. Thus, the provisions of Rule 14 of Cenvat Credit Rules and Section 11AB of the Act are not attracted and neither the penalty nor the interest is chargeable(Para 9). Appeal dismissed(Para 10).
     

  • STO 2010 Guj 787
  • Service Tax: Outdoor Catering Service Provided in Factory Canteen: Whether an Input Service: Under the provisions of Section 46 of the Factories Act, it is mandatory for the employer to provide canteen services to the staff. Thus, provision of canteen services is a statutory requirement. Provision of canteen services being indispensable, it is incumbent on a manufacturer of goods, to provide the same if he desires to run his factory. In view of the definition of “input service” which means any service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products, the input service does not have to used directly in the manufacture of final products, it may be a service which is only indirectly used in relation to the manufacture of final products. In the circumstances, canteen services which are indispensable in relation to manufacture of the final products would certainly fall within the ambit of “input service” as defined under the Rules.(Para 6). Moreover, Rule 3 of the Rules provides that the manufacturer shall be allowed to take credit of the service tax leviable under Section 66 of the Finance Act; paid on any input service received by the manufacturer of final product on or after the 10th day of September, 2004. A plain reading of the said rule makes it clear that the said provision does not qualify the nature of input service availed of by the manufacturer.(Para 7).

    Therefore, the Tribunal was justified in holding that the service tax paid on outdoor catering services by the canteen located in the respondent’s manufacturing premises has to be considered as an input service relating to business and that CENVAT credit is admissible in respect of the same.(Para 8).

    Appeal dismissed.(Para 8).

  • STO 2010 P&H 803
  • Service Tax: Availed and utilized the modvat credit on the alleged incorrect/invalid invoices: Credit held as admissible by Tribunal: Strictures: In the instant case, the findings of the Tribunal are perverse, speculative and without any basis or evidence.(Para 13). Tribunal, having just ignored the admissions of the parties and the evidence on record, reversed the order of Commissioner without any basis, particularly when in para 6 of the impugned order’ Tribunal has noticed the fault of the assessees, that the invoices are incorrect for the purpose of taking modvat credit, but it fell in legal error and observed that even if it is assumed that the goods had not been dispatched from Abohar, yet their receipts in the factories of the assessees and the other particulars relating to the quantum of duty, are not in dispute.(Para 16).

    The tribunal has observed that if according to the department, Shobhit had committed certain irregularities at the time of issue of invoices, there cannot be a case to penalize the assessees for some one else doing. Here, the Tribunal has fell in grave error and did not deal with the reasons recorded by the Commissioner, in this relevant connection and the impugned order cannot legally be sustained.(Para 17).

    The party can only claim the modvat credit on the basis of the invoices of the input duty paid goods, which had actually reached the premises of the assessees and not otherwise. Thus, the findings of the Tribunal are not only devoid of merit and misdirected but perverse and speculative as well. The tribunal has just ignored the admissions and other cogent evidence on record with impunity as noticed by the Commissioner.(Para 18).Appeal allowed and matter remanded to Tribunal for reconsideration.
     

  • STO 2010 CESTAT 553
  • Service Tax: Refund of accumulated cenvat credit on the inputs used in the manufacture of excisable goods cleared to a 100% EOU - Rule 5 of Cenvat Credit Rules, 2004: Admissibility: Scope: In the case of Sanghi Textiles Limited reported in 2006 (07) LCX 0213 the Bangalore Bench of this Tribunal took note of the decision in the case of S.V. Business Pvt. Ltd. and came to the conclusion that even in the case of deemed exports, refund is admissible. Further, the same Division Bench in the case of Shilpa Copper Wire Industries - 2008 (2) LCX 0061 came to a conclusion that refund is admissible in the case of deemed exports.(Para 2).

    Limitation aspect: In the case of Sanghi Textiles and it was held that limitation under Section 11B would not be applicable in the case of refund claim for accumulated credit under Rule 5 of Cenvat Credit Rules, 2004. Further, the Tribunal in the case of Anjani Synthetics Limited - CEO 2001 CESTAT 65, support this contention. In the absence of specific provisions related to refund of accumulated credit in Section 11B of Central Excise Act, 1944, the claim of the appellant that time limit is not applicable has to be upheld as similar view was taken in the decision cited above.(Para 3).

    Appeal allowed.

  • STO 2009 CESTAT 1584
  • Service Tax: Cenvat credit on input services received prior to registration whereas tax paid on output services before registration: It is not a correct to say that the appellant started discharging service tax liability after registration in May,2006 for the month of March, April, 2006, is precluded or is not eligible for the service tax credit for the input services involved in output service during the relevant period. Prima-facie, the appellant has made out a case for waiver of pre-deposit(Para 5).

    Stay granted.

  • STO 2009 CESTAT 1656
  • Service Tax: Commercial Construction Services' during the period 1.1.05 to 30.9.06: Penalties under the provisions of Section 76, 77 & 78: The department has relied upon the statement of proprietor, that CENVAT credit on the inputs/capital goods used for providing the service was not availed nor was the exemption under Notification No.12/2003- ST dated. 20.6.03 availed to hold that there was knowledge on the part of the assessees of its liability to service tax. However, since the statement was recorded even after the payment of service tax, a week prior to the recording of the statement, it cannot be inferred that assessees had knowledge of the liability to pay tax and yet neither registered itself with the authorities nor paid tax. Therefore, this is a fit case for setting aside the penalties as the assessees cannot be said to be guilty of any suppression so as to apply the extended period for the purpose of imposition of penalty.(Para 2,3).

    Appeal allowed.

  • STO 2009 CESTAT 1653
  • Service Tax: Utilisation of credit of service tax paid on GTA services for payment of the service tax on GTA services: Scope: The dispute in this case is whether the appellants can utilize the credit of service tax paid on GTA services for payment of the service tax on GTA services. This issue has already been settled in the case of Paharpur Colling Towers Ltd. Vs Commissioner of Service Tax, Kolkata - STO 2009 CESTAT 374 in favour of the respondents. In this case also, the impugned period is prior to 18.4.06 when the Explanation to Rule 2 (p) of CENVAT Credit Rules, 2004 was deleted.

    Revenue appeal dismissed.

  • STO 2009 CESTAT 1648
  • Central Excise: Cenvat credit on welding electrodes which were used by contractor and appellant recovered cost of such electrodes from the contractor: Scope: Appellants had received welding electrodes and availed input credit under Rule 3 of Cenvat Credit Rules, 2004. These electrodes were used for repairing machinery within the factory. The repair works were carried out by engaging a contractor. As per terms of the work entrusted to the contractor, the appellants recovered cost of the electrodes. The demand is on the basis that the appellants had removed the inputs without reversing the credit availed. The Commissioner (Appeals) held that there was deemed removal of the inputs and the Cenvat credit availed had to be reversed. The rule invoked for demand is Rule 3 (5) of Cenvat Credit Rules, 2004. In the instant case, the inputs received were used for repair of the machinery installed in the factory of the appellants. It is not the Revenue's case that the appellants had availed inadmissible credit. The inputs were not removed outside the factory. In the circumstances, Rule 3 (5) could not be validly invoked.(Para 2,5).

    Appeal allowed.

  • STO 2009 CESTAT 1668
  • Service Tax: The inward transportation of inputs and outward transportation of finished goods are input services as per Rule 2 (1) of the CENVAT Credit Rules 2004, the payment of same should have been made in cash through TR6 Challans and not through CENVAT: Scope: It is not disputed that the respondents are liable to pay service tax and hence they become the service providers as per Rule 2 (r). Explanation to Rule 2(p) of the Cenvat Credit Rules 2004 reads that if a person liable to pay service tax does not provide any taxable service or does not manufacture final products, the service for which is liable to pay service tax shall be deemed to be the output service. Accordingly, if the person liable to pay service tax falls in either of the two categories (a) neither a service provider ii) nor a manufacturer, then the service is deemed to be an output service. In this case the respondent is not a service provider. Hence, the service is in question is an output service, which is covered by Rule 3(4) (e) of the CENVAT Credit Rules, 2004 and the case of the respondent is covered by Paharpur Cooling Towers Ltd. Vs. Commissioner of Service Tax, Kolkata STO 2009 CESTAT 374 (Para 5).

    Revenue appeal dismissed.

  • STO 2009 CESTAT 1463
  • Service Tax: GTA services: Whether CENVAT credit can be utilised for discharging service tax due on GTA service: The issue stands settled in favour of the assessees by series of decisions of the Tribunal including that in the case of India Cements Ltd. Vs Commissioner of Central Excise, Salem STO 2007 CESTAT 579  which has been followed in Pallipalayam Spinners Pvt. Ltd. Vs Commissioner of Central Excise, Salem STO 2007 CESTAT 1220. Following the ratio of the above decisions, the impugned order setting aside the service tax demand for the period from Aug.'05 to Mar.'06 together with interest is upheld (Para 3).

    Revenue appeal rejected.

  • STO 2009 CESTAT 1531
  • Service Tax: Provider of construction service : Penalty u/s 76: There is a delay in payment of Service Tax. The appellants are not new to the Service Tax regulations as they are holders of registration since 2005-2006. In this context, it is also relevant that, this is the first time lapse and also they have assured that it would not be repeated and there would be a strict compliance. They are small unit and for a total Service Tax liability they have already paid an interest and looking to their first default and the assurance lenient view is taken as far as penalty under Section 76 is concerned relying upon the decision of the Tribunal in the case of CCE, Rajkot V/s. Shri B.S.G.K. Shastry in Appeal No.-Service Tax/120, 121/2008, CCE, Rajkot V/s. Port Officer, Okha in Appeal No: Service Tax/126/2008 wherein it has been held that penalty under Section 76 of Finance Act, 1994 can be reduced or set aside under Section 80 of the Finance Act, 1994.(Para 4,5).

    Revenue appeal rejected.

  • STO 2009 CESTAT 1667
  • Service Tax: Denial of credit of service tax paid in respect of transport of goods by road, courier service, general insurance service, maintenance & repair service, management consultant's service and authorized service station: Eligibility: The Hon'ble Punjab & Haryana High Court in the case of Ambuja Cements Ltd. Vs. Union of India reported in CEO 2009 P&H 16 held that in case the goods are on FOR and freight charges forming part of value of excisable goods and in view of the Board's Circular dated 23.8.2007, the credit is admissible. The present case whether the appellants fulfilled the condition imposed under the Board's Circular dated 23.8.2007 and whether the freight is forming the part of value of goods requires verification by the adjudicating authority. In respect of the other services also, now the Hon'ble Bombay High Court in the case of Coca Cola India Pvt. Ltd. Vs. Commissioner of Central Excise, Pune-III reported in STO 2009 Bom 74 interpreted the provisions of the input services as provided under the Cenvat Credit Rules and the assessee is to prove the nexus between the services and use in or in relation to manufacture of goods. Hence, the issue in this regard is also requires reconsideration. The matter is remanded to the adjudicating authority to decide afresh(Para 5).

    Appeal disposed of by way of remand.

  • STO 2009 CESTAT 1579
  • Service Tax: Denial of Cenvat credit of service tax paid on outward transportation of the finished product: Condonation of delay of 145 days: In this case, the impugned order was passed on 09.01.09 whereas the decision of the Tribunal in case of M/s ABB Ltd was rendered on 18.05.09. Therefore, by the time Larger Bench decision became available, the time limit for filing appeal was already over. In view of the above circumstances and in view of the decision of the Tribunal cited, delay in filing the appeal is condoned.

    The short issue involved in the appeal is whether the appellants are entitled to take credit of Service Tax paid on outward transportation of their final product from the factory. Larger Bench in case of M/s ABB Ltd Vs CCE, has held that outward transportation of the goods from the place of removal is input service and the same is covered by word ‘Activity relating to the business’.(Para 4,5).

    Appeal allowed.

  • STO 2009 CESTAT 1487
  • Service Tax: GTA services: Cenvat credit: Credit has been denied on the ground that the GTA service received was not an ‘output service’ as per Explanation to Rule 2 (p) of the CENVAT Credit Rules, 2004: The issue stands settled in favor of the assessee by decisions of the Tribunal such as Commissioner of Central Excise, Chandigarh Vs Nahar Industrial Enterprises Ltd. [STO 2007 CESTAT 151 ], India Cements Ltd. Vs Commissioner of Central Excise, Salem [STO 2007 CESTAT 579 ] and R.R.D. Tex Pvt. Ltd. Vs Commissioner of Central Excise, Salem [STO 2007 CESTAT 427 ].(Para 2).

    Appeal allowed.

  • STO 2009 CESTAT 1670
  • Service Tax: Cenvat utilization : Whether CENVAT credit of service tax paid on goods transportation agency service can be utilized for payment of service tax for removal of final products from factory: The issue is covered by series of decisions of the Tribunal including that of India Cements Ltd. Vs. CCE, Salem – STO 2007 CESTAT 579 and RRD Tex Pvt. Ltd. Vs. CCE, Salem - STO 2007 CESTAT 427 and others. The period in dispute as in the earlier case is prior to the deletion of Explanation to Rule 2(p) of the CENVAT Credit Rules, 2004.(Para 1,2).

    Appeal allowed.

  • STO 2009 CESTAT 1492
  • Service Tax: Business Auxiliary Services, acting as Commission Agent for selling offset printing machines: Waiver of penalties imposed under sections 75A, 76, 77 and 78 of Finance Act, 1994: Appellant was already paying tax on Business Auxiliary Services and during the period of about 21/2 years, appellant had received commission of more than Rs. 42 Lakhs, which would show that appellant is not a small organization and therefore there appears to be, insufficient justification regarding ignorance of law and non-payment of service tax during the relevant period. Therefore, appellants have not been able to make a prima facie good case for total waiver of pre-deposit(Para 3).

    Pre-deposit ordered.

  • STO 2009 CESTAT 1375
  • Service Tax: Cenvat credit on capital goods: Documents: Credit was taken by the assessees on capital goods on the strength of invoices addressed to BSNL, Madurai which were not eligible documents for availing credit, prima facie case for waiver has been made out by the assessees on the strength of Tribunal's Final Order No.1221/2008 dated 28.10.2008 in the case of the same assessee holding that substantive benefit of CENVAT credit was admissible to the assessees.(Para 2).

    Stay granted.

  • STO 2009 CESTAT 1338
  • Service Tax: Rent-a-Cab: Waiver of penalty: The respondent himself after coming to the knowledge that he is not entitled to avail the Cenvat Credit after the Notification No. 1/2006-ST dated 01.03.2006 has reversed the Cenvat Credit availed and informed the Department on 07.09.2006 but the show cause notice was issued on 11.12.2007 which is beyond the stipulated period of one year, so the demand is time barred. Moreover there was no malafide intention of the respondent to avail the Cenvat credit. Although the lower appellate authority has held that reversing the credit amounts to not taking the credit, as has been held in the case of Chandrapur Magnet Wires (P) Ltd. vs. Collector of C. Excise, Nagpur - STO 1995 SC 13, the respondent was not liable for demand of interest and penalty but on merits also the respondent is having a good case in his favour as the demand is time barred.(Para 7).

    Revenue appeal rejected.

  • STO 2009 CESTAT 1371
  • Service Tax: CENVAT credit of service tax paid on GTA service received: The issue stands settled in favour of the assessees by the decisions of the Tribunal in the cases of India Cements Ltd. Vs CCE Salem, STO 2007 CESTAT 579 R.R.D. Tex Pvt. Ltd. Vs CCE Salem, STO 2007 CESTAT 427 and Pallipalayam Spinners Pvt. Ltd. Vs CCE Salem [STO 2007 CESTAT 1220].(Para 2).

    Appeal allowed.

  • STO 2009 CESTAT 1572
  • Service Tax: Waiver of pre-deposit: The confirmation of demand of service tax has arisen on the ground that the appellant is not eligible to avail the credit of service tax paid on goods transport services in respect of transportation of goods beyond the place of removal. The issue is now squarely covered by the decision of the larger bench of the Tribunal in the case of ABB Ltd., Vs CCE Hyderabad as reported in STO 2009 CESTAT 878 (Para 2,3).

    Appeal allowed.

  • STO 2009 CESTAT 1576
  • Service Tax: Management Consultant Service and IPR services during the period from October 2004 to September 2005: Wrong availment and use of Cenvat credit: Penalty and interest: Both the show cause notices were issued for demand of interest on the wrongly taken Cenvat credit. In the second show cause notice, beside the interest, penal action under Section 77 & 78 of the Finance Act, 1994 was also proposed. None of the show cause notices demanded the wrongly taken Cenvat credit, as about this, there was no dispute and the same had been reversed in November 2005 itself. In view of this, the Assistant Commissioner's order demanding a part of the Cenvat credit - Rs. 91,000/- and imposing penalty of equal amount on the Respondent under Section 78 is not correct as, by doing so, he has travelled beyond show cause notice. Moreover, when the respondent are not disputing the fact that they had taken this credit wrongly and had reversed in November 2005 without any protest, there would no necessity to confirm the demand for part of the credit which has been utilized more so, when the same had not demanded in the show cause notice. In any case, penalty under Section 78 is not imposable for wrong availment of Cenvat credit.

    As regards the interest on Cenvat credit, in view of Hon'ble Punjab & Haryana High Court judgment in the case of CCE, Delhi - III vs. Maruti Udyog Limited reported in CEO 2006 P&H 30, wherein the Hon'ble High Court has held that when inadmissible Cenvat credit was taken but not utilized and subsequently the assessee reversed the same, the assessee was not liable to pay any interest, no interest would be payable by the respondent on the amount of unutilized credit. This judgment of Hon'ble Punjab & Haryana High Court has been upheld by the Hon'ble Supreme Court also in the case of Commissioner vs. Maruti Udyog Ltd. reported in CEO 2007 SC 21. However, the respondent would be liable to pay interest on the Cenvat credit which had been utilized during the period to be reversed and accordingly, the demand towards interest is correct.(Para 3).

    Appeal disposed off.

  • STO 2009 CESTAT 1359
  • Service Tax: Site, Formation and Clearance Service: Cenvat credit availed on ineligible capital goods namely Tippers: Eligibility of Tippers as C.G.:

    Classification of Tippers: The invoices issued by M/s Volvo International Ltd., for the sale of such tippers to the appellant indicate chapter subheading as 87042390. It is on record that such classification is not in dispute and the manufacturer and the revenue have accepted the classification as has been declared by the manufacturer. On this factual matrix, the reliance placed by the appellant in the case of M/s Dipco Metal Fabricators CEO 2006 CESTAT 56 seems to be mis-placed in as much as that the said decision of the Tribunal has not given any detailed finding as regards the classification of the tipper under chapter heading 8428.90.(Para 10). The provisions of rule 2(a) and 2(k) of the cenvat credit rule specifically exclude motor vehicles from the benefit of the credit either as capital goods or inputs, but for the, specific situations as indicated therein. In the absence of any other provisions, the credit availed by the appellant in this case is inadmissible to him as it is undisputed that the vehicles i.e. tippers are classified under chapter 87 of the Schedule to Central Excise Tariff Act, 1985. In view of this, the impugned order that confirms the demand of the reversal of the credit filed by the appellant is correct and does not require any interference.(Para 11).

    Penalty: As regards the penalty imposed on the appellants under the provisions of Rule 15 of the Cenvat Credit Rules, is unwarranted as during the relevant period appellant had a bonafide belief that the tippers which are used for providing output services are eligible for availment of credit as the said tippers were used for rendering a taxable output service and more so in the case of Dipco it was held that tippers would be classified under Chapter 84. Since there is a bonafide belief, penalty imposed on the appellant is liable to be set aside. (Para 13).

    Interest: As regards the interest under Rule 14 of the Cenvat Credit Rules read with Section 75 of the Act, the said interest is also unwarranted as it is the contention of the appellant that sufficient balance was available in the cenvat credit at the relevant period i.e. say the appellant has not utilized the credit availed by them and it was in records as credit only. The appellants contention that they had only availed credit but not utilized the same for payment of service tax has not been disputed by the adjudicating authority nor there is any finding contrary to the submission made by the appellant before him. If that be so, the decision in the case of Gokaldas Images Pvt Ltd. Vs CCE Bangalore CEO 2008 CESTAT 307 will squarely cover the issue as it was held, that entries remain merely as entries without any effect on government's revenue and credit was reversed immediately. Hence, the demand of interest was not justified(Para 14).
    Appeal disposed off.

  • STO 2009 CESTAT 1336
  • Service Tax: Whether credit of Service tax paid on Goods Transport Agency Service through TR-6 challan can be taken prior to 16-06-05: In similar cases Tribunal has allowed credit on TR-6 Challans the following cases:- i) Gaurav Krishna Ispat (I) P.Ltd. Vs. CCE, Raipur STO 2008 CESTAT 568 ii) Cenatur Pharmaceuticals P. Ltd. Vs. CCE, Goa CEO 2008 CESTAT 305 iii) CCE, Meerut Vs. Shree Sidhbali Steels Ltd. STO 2008 CESTAT 902 iv) Nestle India Ltd. Vs. CCE, Goa CEO 2007 CESTAT 79 v) CCE, Goa Vs. Crompton Greaves Ltd CEO 2008 CESTAT 306 vi) CCE, Goa Vs. Essel Pro pack Ltd STO 2007 CESTAT 120 (Para 3,5).

    Appeal allowed.

  • STO 2009 CESTAT 1363
  • Service Tax: Refund of unutilized Cenvat Credit of Service Tax under Rule 5 of the Cenvat Credit Rules, 2004: The said refund claim was rejected by the adjudicating authority on the grounds that refund of Service Tax paid on input service is admissible only from 14.03.2006 as provided under Notification No.5/2006 CE (NT) and not for the period prior to it. Findings of the learned Commissioner (Appeals) are contrary to the decision of this Bench in an identical issue in the case of Fibres & Fabrics International Pvt. Ltd. Vs. CC  wherein it was held as :"On a very careful consideration of the matter, in the present appeals, all the refund claim pertains to period prior to 14.03.2006. However, Rule 5, itself provides the utilization of the input credit and input service credit and where such input service credit or input credit cannot be utilized, then the same can be given as refund. So, there is indeed a provision. Just because the notification has not been issued at that time, we cannot deny the benefit provided in the Rule. Moreover, all the case-laws cited by the learned advocate point out that the notification dated 14.03.2006, would be applicable even to the period prior to it in view of the rule position, rule 5 as it existed there. In these circumstances, there is no merit in the impugned order.(Para 5.1).

    Appeal allowed.

  • STO 2009 CESTAT 1379
  • Service Tax: Port services: Scope and liability: Cargo handling in relation to export goods undertaken by the respondent CHA in the port premises cannot be subjected to tax classifying the same as "Port Services". The respondent discharges tax liability on these activities under the category of CHA services in view of the decision of this Tribunal in the case of M/s. Konkan Marine Agencies Vs. CCE, Mangalore reported in STO 2007 CESTAT 323 which has since been upheld by the Hon'ble Karnataka High Court.(Para 2).

    Revenue appeal rejected.

  • STO 2009 CESTAT 1381
  • Service Tax: Cenvat credit on services received from defaulter of service tax: The only reason for denial of credit is on the ground that supplier has defaulted in discharging the service tax liability. However, this cannot be a reason for denying the Service Tax credit to the applicant, as they have already paid the amount of Invoice to the supplier.(Para 2).

    Stay application allowed.

  • STO 2009 CESTAT 1349
  • Service Tax: Denial of Cenvat credit on ‘repair and maintainance service” as input service: The service being provided by the appellant to M/s Hindustan Zinc Ltd. is operation and maintenance of the captive power plant owned by M/s Hindustan Zinc Ltd. Even though the appellant's agreement with M/s Hindustan Zinc Ltd. mentions separate charges for plant operation and plant maintenance, the Department treating the entire service of operation and maintenance as one composite service classifiable as "repair and maintenance service" has charged service tax on the entire amount including the amount towards plant operation. In view of this, having treated the appellant's activity as one composite service, the Department cannot split it into plant operation and plant maintenance for the purpose of permitting Cenvat credit and deny Cenvat credit in respect of input goods and services used for plant operation.(Para 3).

    Appeal allowed.

  • STO 2009 CESTAT 1290
  • Service Tax: Sale of capital goods: Duty paid on the purchase order price: Reversal of Cenvat credit taken is required: The issue in dispute stands settled against the appellants by the decision of the Larger Bench in the case of Modernova Plastyles Pvt. Ltd. Vs. CCE, Raigad CEO 2008 CESTAT 155 LB holding that reversal of cenvat credit availed on capital goods is required to when capital goods are removed as such whether used or not. In the present case, the capital goods were removed as such from the factory.(Para 2).

    Appeal rejected.

  • STO 2009 CESTAT 1284
  • Service Tax: Benefit of Notification No.32/2004 dated 03.12.2004: A Certificate given by service provider along with consignment notes to the effect that credit has not been availed on input or capital goods and benefit of Notification No.12/2003 was not availed were produced before the adjudicating Authority. This fact is not in dispute. Applicant relied upon the decisions of the Tribunal as reported in STO 2007 CESTAT 602 and submitted that production of certificate is sufficient if the declaration is not given on the consignment note to allow the benefit of above mentioned Notification.(Para 3,4).

    Revenue appeal dismissed.

  • STO 2009 CESTAT 1459
  • Service Tax: GTA services: Abatement of 75% as provided under Notification No. 32/04 as there was no endorsement on the consignment notes: Both the lower authorities have denied the abatement to the applicant only on the ground that there is no endorsement on the consignment notes that there is non-availment of inputs/capital goods stage credit. The applicant, as a person who has received the services of the goods transport agency, could not have taken the credit of the capital goods/inputs. The issue is covered by the decision of the Tribunal in the case of CCE Rajkot Vs Sunhill Ceramics Pvt Ltd., (STO 2007 CESTAT 1287 and Banner Pharmacaps Pvt Ltd., Vs CCE&C Vapi (2009-TIOL-1016-CESTAT-Ahm). Accordingly, the applicant has made out a prima facie case for the waiver of the pre-deposit(Para 4).

    Stay granted.

  • STO 2009 CESTAT 1441
  • Service tax: Abatement of 75% as provided under Notification No. 32/04 as there was no endorsement on the consignment notes: Demand raised on the ground that the applicant is not eligible to avail the abatement of 75% as provided under Notification No. 32/04 as there was no endorsement on the consignment notes regarding the non-availment of modvat/cenvat credit on the capital goods and the inputs by the transporters. The issue is now squarely covered in favour of the appellant by the decision of the Tribunal in the case of CCE Rajkot Vs Sunhill Ceramics Pvt. Ltd. STO 2007 CESTAT 1287 He would also rely upon the decision in the case of Banner Pharmacaps Pvt. Ltd., Vs. CCE,&C Vapi (2009-TIOL-1016-CESTAT-Ahm).(Para 3,4).

    Stay granted.

  • STO 2009 CESTAT 1324
  • Service Tax: Commission paid to the middle man abroad was reimbursed by the foreign buyer to Appellant: Scope and liability: There is no dispute to tax liability. The question comes for determination is mode of discharge of the liability. The subject of service tax is new as to whether discharge of service tax liability is permissibility through Cenvat credit, shall require thorough examination. Keeping in view that Revenue's interest has been protected in the manner undertaken by the Appellant in discharging liability(Para 4).

    Pre-deposit waived, stay allowed.

  • STO 2009 CESTAT 1502
  • Service Tax: Paid service tax towards inward transport of goods by availing cenvat credit, for the period from 1.08.2005 to 31.8.2005: The Commissioner (Appeals) set aside the impugned order relying upon the decision of this bench in the case of AP Paper Mills STO 2007 CESTAT 29 (Para 3,4).

    Revenue appeal rejected.

  • STO 2009 CESTAT 1108
  • Service Tax: Whether CENVAT credit of the service tax paid on GTA service for outward transportation from the place of removal to the customers' premises during the period January 2005 to March 2006 is admissible: Scope: In the Board 's Circular No.97/8/2007-ST dated 23.8.2007, it was clarified that credit of the service tax paid on transportation of goods from the place of removal upto the place of sale would be admissible to the manufacturer if it could be established by them that (i) the ownership of goods and the property therein remained with the manufacturer (seller) till the delivery of the goods in acceptable condition to the purchaser at his doorstep; (ii) the seller bore the risk of loss or damage to the goods during transit to the destination and (iii) the freight charges were an integral part of the price of the goods. This clarification of the Board was upheld by the Hon'ble High Court in Ambuja Cements Ltd. case. The Hon'ble High Court also held to the effect that the above conditions stood complied with by an assessee where the goods were delivered at the buyer's premises at FOR destination price. In the instant case, the goods were delivered at FOR destination price and, therefore, the respondents are eligible(Para 1).

    Revenue appeal dismissed

  • STO 2009 CESTAT 1174
  • Service Tax: Repair and maintenance service provided to a foreign manufacturer: Scope and liability: What that is a market promotion activity cannot be repair and maintenance activity because there is an audit advice given to the Ld. Adjudicating Authority. Even if the Appellant is brought to the category of business auxiliary service, the Appellant shall be entitled to the exemption under export of Service Rules of 2005. Ld. Commissioner has not discussed the scope of service because Export Rules grants relief to the Appellant. After sale service and warranty period service was done by the Appellant through its service centres and such services provided to customers by service centre has resulted with realisation of Service Tax. Warranty service and after sale service providers has paid service tax to Government. Reimbursement of the value of services provided by these providers has been done by the Appellant to the service centres. This brings nexus that for the reimbursement of the value by the Appellant to service centres, the service is said to have been provided by the Appellant through service centres. The reimbursement having suffered tax in the hands of service centres, that grants right to the Appellant to get the Cenvat credit of Service Tax paid by the service centres. Therefore Cenvat credit is admissible to the Appellant.(Para 2,3,10).

    Stay granted.
     

  • STO 2009 CESTAT 1185
  • Service Tax: Commercial and industrial construction: Abatement under Notf. No. 12/03: Scope: The benefit is not available to the Noticee as they have been providing only completion and finishing services in relation to building or civil structure. Thus, the benefit under Notification No.12/2003-ST dated 20.06.2003 or Notification No.15/2004-ST dated 10.09.2004 as amended and 1/2006-ST dated 01.03.2006 could not be extended to the Noticee. Merely on the basis that the Noticee has composite contracts, the benefit under the notifications supra could not be extended to them in the absence of fulfilment of conditions laid down therein. It can be reasonably deduced from the fact that the abatement of 67% denied in the notifications for completion & finishing services, is due to the fact that majority of goods/materials necessary for construction e.g. cement, steel etc. are not required for such services. To grant 67% abatement to completion & finishing services will not be equitable in law and denial the benefit of abatement.(Para 6).

    Pre-deposit ordered.
     

  • STO 2009 CESTAT 1035
  • Service Tax: GTA services: Output service: Scope: As per the binding decision of a Division Bench of this Tribunal in India Cements Ltd. Vs. CCE. Salem vide Final Order No. 262/2007 dated 20.03.2007, during the material time when the Explanation interpreted by the Tribunal was in force. GTA service in respect of which the appellants was held liable to pay tax and paid service tax has to be held as output service. An assessee is allowed to use CENVAT credit, inter alia, for discharging tax liability on output service. In the above view of the matter the impugned order is not sustainable in law.(Para 2).

    Appeal allowed.

  • STO 2009 CESTAT 1165
  • Service Tax: Commercial Industrial Construction Services, service of construction of residential complex and transportation of goods by road: Notification No. 12/200. dated 26.2.2003: Scope: Notification No.12/2003 is applicable only in respect of goods and materials sold while providing services and in respect of other goods, the appellants would still be eligible to avail Cenvat credit. Once they avail Cenvat Credit, the value of such goods and material cannot be deducted and if such goods are sold, Credit has to be reversed. The lower authorities have taken a stand that once the Cenvat Credit is taken in respect of goods and materials, the appellants cannot deduct the value of goods sold, even if they have not taken credit. Further there are several decisions of the Tribunal that subsequent reversal the Cenvat Credit also amounts to non-availment of Cenvat Credit which have been rendered in respect of Rule 6 (3) of Cenvat Credit Rules. The demand has been confirmed only on the ground that if Cenvat Credit is taken in respect of other goods Notfn. 12/2003 benefit can not be availed. It is not clear how exactly the appellants have violated the condition of the Notification. Matter remanded for de-nova consideration(Para 3).

    Stay application allowed by way of remand.

  • STO 2009 CESTAT 1027
  • Service Tax: Refund of unutilized CENVAT credit taken on input services which were utilized in or in relation to the manufacture/clearance of final products for export: Scope: Admittedly, a few show-cause notices proposed to deny refund, inter alia, on the ground of limitation. The refund claims were filed on a quarterly basis. The claims were filed after the final products, cleared for export, were shipped. A perusal of the Explanation to sub-section (5) of Section 11B of the Central Excise Act shows that, the relevant date for the purpose of computation of period of limitation is the date on which the ship leaves India. The learned counsel has submitted that all the refund claims were filed within one year from the last date of the respective quarters. Therefore, original authority will have to carefully address the limitation issue with reference, and proper application of mind, to the provisions of Section 11B ibid. What is already conceded will be treated as conceded. The refund claims will survive only insofar as the remaining services are concerned. In respect of these services, the original authority shall examine the question whether these services were used in or in relation to the manufacture of clearance of the export goods, in terms of the definition of “input service” given under Rule 2(I) of the CENVAT Credit Rules, 2004. Of course, Original documents which are admittedly available at this stage to the refund-sanctioning authority, have got to be examined afresh by the authority.(Para 5,6,8).

    Revenue appeal allowed by way of remand.

  • STO 2009 CESTAT 1280
  • Service Tax: Cenvat credit on the Service Tax paid on the transportation services provided by the appellant to their staff to pickup and drop: Admissibility: In a similar case in respect of M/s. Stanzen Toyotezu India Pvt. Ltd., Bangalore vide Order- n-Appeal No.133 & 134/2007 dated 17.12.2007, held that providing transportation service to the staff is not eligible input for credit singe it is extended facility to the employees themselves. Such services provided to the staff and also management are not eligible to input credit.

    It is seen that the said decision of the learned Commissioner (A) in the case of M/s. Stanzen Toyotezu India Pvt. Ltd. was set aside by the Divisional Bench of the Tribunal in Final Order No.1419-1422/2008. Since the Commissioner (Appeals)'s reliance is only on a case, which is set aside by the Tribunal, the issue is now in favour of the appellant.(Para 4).

    Appeal allowed.

  • STO 2009 CESTAT 1631
  • Service Tax: Denial of CENVAT Credit on the Service Tax paid on the input services i.e. canteen services and rent a cab services during the period May, 2006 to March, 2007: The issue is no more res integra. As regards the Service Tax paid on the input service ‘canteen services’, the decision of the Larger Bench of the Tribunal in the case of CCE, Mumbai-V Vs. GTC Industries Ltd. STO 2008 CESTAT 320 and Victor Gaskets India Ltd. and Others – STO 2008 CESTAT 233 would cover the issue in favour of the appellant. Relevant paras of CAS-4 clearly show that cost of subsidized food is included in the cost of production. In case of a factory having more than 250 workers under Section 46 of the Factories Act, 1948, it is mandatory on the part of the factories to provide a canteen facility within the factory premises and failure to comply with the provisions of Section 46 attracts prosecution and penalty under Section 92 of the Factories Act, 1948. A service tax on outdoor catering services is paid by the manufacturer for running the canteen, irrespective of the fact that a subsidized food is provided or not. Whether the cost of food is borne by the worker or by the factory, the same will form part of expenditure incurred by the manufacturer and will have a bearing on the cost of production. In view of the same, employment of outdoor caterer for providing catering services has to be considered as an input service relating to the business and Cenvat credit in respect of the same will be admissible.
    In respect of ‘rent a cab service', the decision of the Tribunal in the case of CCE Vs. Cable Corporation of India Limited
    CEO 2008 CESTAT 59 would cover the issue in favour of the appellant.(Para 3,5,7).

    Appeal allowed.

  • STO 2009 CESTAT 1278
  • Service Tax: CENVAT Credit on the Service Tax paid under GTA services: Authorized service centre: Identical issue was decided by the Division Bench in the case of M/s. Shariff Motors & another Final Order No.565/2009 dt. 12/3/2009). The said decision squarely covers the issue in favour of the appellant.(Para 4).

    Appeal allowed.

  • STO 2009 CESTAT 1039
  • Service Tax: Cenvat credit on 'Goods Transport Agency' service and 'Out-door Catering Service' during the period March, 2005 to July 2005: Scope: Larger Bench of the Tribunal in the case of ABB Ltd & others Vs. CCE, Bangalore & others [STO 2009 CESTAT 878] held that services availed by a manufacturer for outward transportation of final product from the place of removal should be treated as input service in terms of Rule 2(1)(ii) of the CCR. In the light of the above decision of the Larger Bench of the Tribunal, the impugned demand holding that outward transportation of final product from the place of removal was input service is not sustainable.(Para 1). Larger Bench decision of the Tribunal in the case of CCE, Mumbai Vs. GTC Industries Ltd [STO 2008 CESTAT 810] wherein it was held that outdoor caterers providing catering service was input service relating to business. As the same was an input service the appellants were entitled to Cenvat credit. The appellants are entitled to credit of service tax paid under out-door catering services for serving food to its employees in the factory canteen run by it. (Para 3).

    Appeal disposed off.

  • STO 2009 CESTAT 1037
  • Service Tax: Cenvat credit of service tax paid on services such as outdoor catering service, rent-a-cab services, car maintenance service and photography service: Admissibility : This issue stands settled in favour of the respondents by the decision of the larger Bench of the Tribunal in Commissioner of Central Excise, Mumbai Vs GTC Industries Ltd. [STO 2008 CESTAT 320] holding that CENVAT credit is admissible on "outdoor catering service" as 'outdoor catering service' is an input service relating to business. As regards the remaining services, the decision of the Tribunal in Commissioner of Central Excise, Jaipur Vs M/s. J.K. Cement Works [STO 2009 CESTAT 1707.] holds that credit is available on service tax paid on services such as rent-a-cab service, photography service and repair and maintenance of vehicles.(Para 2).

    Revenue appeal rejected.

  • STO 2009 CESTAT 955
  • Service Tax: Industrial Construction service : Cenvat credit on mobile phone during the period up to 31St March, 2006: Scope: Mobile phones were used in relation to the business activities which was not refuted in the grounds of appeal filed by the Revenue. The decision of the Hon'ble Gujarat High Court in the case of CCE vs. Excel Crop Care Ltd., reported in STO 2008 Guj 928 and decision of the Tribunal in the case of Wiptech Peripherals Pvt. Ltd. vs. CCE, Rajkot, reported in STO 2008 CESTAT 754 is supportive. Mere payment of bills by the respondents does not imply that the services have been utilized by the respondent company for business activities. But in the present case, it is seen that the respondent took opposite stand that the mobile phones were utilized by the full time directors of the respondent company for business purposes which were not negated by the Revenue by any material. In view of the above discussion, there is no reason to interfere with the order of the Commissioner (Appeals).(Para 4,6).

    Revenue appeal rejected.

  • STO 2009 CESTAT 814
  • Service Tax: Waiver of Pre-Deposit and Stay: The appellant made a statement of fact contrary to the record. There was a clear finding that the appellant had failed to produce any such certificate which could disclose that the transporter having not availed the facilities under Cenvat Credit Rules as no such certificate was produced either alongwith the defence reply or to the audit party or during the course of personal hearing of the matter. Appellant have not challenged the said finding of fact arrived at by the Original Authorities and it was contended that the additional Commissioner erred in passing the order without considering the certificates. The conduct of the appellant clearly discloses lack of bonafide in relation to the proceedings before the lower authorities. In such circumstances, the point of revenue neutrality cannot come to the aid of the appellant in seeking stay of the order requiring the appellant to pay the tax and penalty amount thereof. Hence there is no case for unconditional stay of the impugned order. Stay rejected.(Para 10).

    Pre-deposit ordered.

  • STO 2009 CESTAT 699
  • Service Tax: Stay petition: The issue involved is whether Cenvat Credit of service tax paid on DTA services can be utilized on GTA services itself. Taking note of the fact that appellants have already paid 50% of the service tax demanded and also that the matter stands referred to the Larger Bench Panchmahal Steel Ltd. Vs. C.C.E. Vadodara-II reported in 2008 (12) S.T.R.447 (Tri.- Ahmd.),

    Stay allowed.

  • STO 2009 CESTAT 811
  • Service Tax: Service charge receipt towards sale of SIM cards, Cenvat credit held to be inadmissible in respect of input service and levy on the international roaming charges: Scope and liability: Whether the levy shall be attributable towards sale of goods i.e. is SIM cards or partly for card and partly for activation charge is not clear. In absence of a clear pleading by the Appellant, the Authorities below brought out the facts and figures to suggest the value of activation charges in the sale proceeds of the SIM card was taxed. The Appellant was accordingly brought to the levy. So far as disallowance of Cenvat Credit is concerned, prima facie change of name disputed by the Revenue has no basis when the Registrar of Companies has issued a certificate and appropriate intimation is stated to have been furnished before the Revenue. However, the nexus of input service and out put service shall be gone into in detail during the course of appeal hearing. So far as international roaming charges are concerned, the board’s Notification No. 36/2007 dated 15.6.07 that roaming charges prior to 14.1.07 should not be brought to the ambit of levy is applicable. Prima facie there is no case made out to grant total waiver of pre-deposit.(Para 5,6).

    Pre-deposit ordered.

  • STO 2009 CESTAT 763
  • Service Tax: Business Auxiliary Services during the period 16.06.2005 to 31.12.2006: Time bar: The services received did not come under the purview of BAS as the agents involved had not acted on behalf of the appellants to cause sale of the products of the appellants. As regards the liability of the appellants as a recipient of taxable service from persons based abroad, there existed tremendous confusion owing to orders of the Tribunal holding divergent views. It was only when the Hon'ble High Court of Bombay pronounced the judgment in the case of Indian National Ship Owners Association Vs. Union of India STO 2009 Bom 78 that the trade became aware that recipients of services from persons abroad were liable to pay service tax only with effect from 18.04.2006 when Section 66A was introduced in the Act. Therefore the impugned demand invoking larger period was not sustainable. The appellants were under the bonafide belief that they were not liable to pay the impugned tax during the material period. As regards the liability relating to the period 18.04.2006 to 31.12.2006, major portion of the same would be hit by limitation as the show-cause notice basic to the proceedings had been issued on 02.07.2007 and demand could not be raised for the period beyond one year prior to the date of issue of the show-cause notice. In any case the appellants being a manufacturer of artificial and synthetic staple fibre yarn was entitled to take credit of whatever tax was paid on input service in relation to its business. Most of the demand is barred by limitation. The appellant’s claim that payment of the impugned demand would entail a revenue neutral situation as the appellants worked under the CENVAT scheme carries considerable force.(Para 1,3).

    Stay granted.

  • STO 2009 CESTAT 788
  • Service Tax: Refund of unutilized Cenvat credit for the period prior to 14.03.2006: Notification No. 11/2002-CE (NT) dated 01.08.2002: Notification No. 5/2006-CE (NT) dated 14.03.2006 is effective retrospective, being beneficial in nature, since the text and tenor of Rule 5 of the Cenvat Credit Rules, 2004 provided for refund of un-utilized excess cenvat and in view of the transitional Rule 16 of Canvat Credit Rules, 2004 which makes applicable the old notification issued prior to the introduction of new Cenvat Credit Rules, 2004 from 10.09.2004. Reliance was placed also on the Apex Court ruling in the case of WPIL Ltd. Vs. CCE STO 2005 SC 754. In the present appeals, all the refund claim pertains to period prior to 14.03.2006. However, as on 10.09.2004 with the introduction of Rule 5, which provides the utilization of the input credit and input service credit and where such input service credit or input credit cannot be utilized, then the same can be given as refund. So, there is indeed a provision. Just because the notification has not been issued at that time, the benefit provided in the Rule can not be denied. Moreover, all the case-laws cited by the appellant point out that the Notification No. 5/2006-CE (NT) dated 14.03.2006, would be applicable even to the period prior to it in view of the rule position, rule 5 as it existed there. In these circumstances, there are no merit in the impugned order.(Para 7,9).

    Appeal allowed.

  • STO 2009 CESTAT 473
  • Stay: Extension of stay: Stay extended for further period of six months.

  • STO 2009 CESTAT 378
  • Service Tax: CENVAT credit on merger charges, charges for issuance of NOC, annual custody fees and maintenance of fax machine: Scope: The definition of input service has been expanded by using the words "and includes" basically for the reason that the services which are enumerated after the words "and includes" are those services which may not be considered as directly or indirectly relatable to manufacture but yet the intention is to provide the benefit of credit of service tax paid on such services as CENVAT credit. Therefore, what is required to be examined is whether the services on which credit has been denied can be covered by the categories of services listed in the definition. The services on which credit was denied by the revenue such as merger, issuing of NOC, share registry and maintenance of fax machine are all covered by the categories of services enumerated in the definition(Para 4).

    Appeal allowed.

  • STO 2009 CESTAT 323
  • Service Tax: Telecom services: Suo moto taking of credit or refund without sanction by proper officer: Scope: Holding that they would be eligible to utilize only 20% of the credit taken, they have chosen to make cash payments in May, 2005 and August, 2005 to offset the excess credit utilized by them and claimed to have retrospectively nullified the excess utilisation of credit during the past period. It has not been satisfactorily explained as to how the appellants who rectified the mistake of utilization of excess credit became entitled to take fresh credit. Further, if there was excess/ wrong payment of tax, they should have preferred a refund claim and same should have been considered especially in the light of unjust enrichment appears relevant and prima facie acceptable. This view is supported by the decision of the Larger Bench of the Tribunal in the case of BDH Industries Ltd. Vs. CCE (Appeals) Mumbai I [CEO 2008 CESTAT 38] where it has been held that "there is no provision under the Central Excise Act and Rules allowing suo moto taking of credit or refund without sanction by proper officer". If the unjust enrichment provisions were not available in the statute, it might be a case of revenue neutral exercise, especially when the applicant has paid the interest involved as well. However, at this stage, the applicant has not made out a prima facie case for waiver of entire demand. No financial hardship is also pleaded.(Para 4,5).

    Pre-deposit ordered.

  • STO 2009 CESTAT 375
  • Service Tax: Input service distributor: Credit of service tax in respect of tour/travel, hotel and other services: Eligibility: The input service distributor stands on the same footing as a dealer and what he is doing basically only passing on the credit. The examination of eligibility has to be done only at the end of recipient.(Para 3). The input service distributor has to be a office of the manufacturer or producer of final products or provider of output service who will distribute the credit to his manufacturing units or service providing units as the case may be. The concept of input service distributor has been introduced in view of the fact that definition of input service includes" services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal". The definition shows that many of services could be performed in places other than where the manufacturer or receiver of the service might have been located and quite often a single manufacturer may be having several branches and services can be received in several places. According to Rule 4A(2) of Service Tax Rules, 1994 every input services distributor distributing credit of taxable services is required to indicate the details in the documents issued by him for distributing the credit(Para 4.2,4.3). The document issued by appellant for passing on the credit does not contain the nature of service provided and the details of services. It contains the service provider's details, distributor's details and the amount. Therefore, the eligibility or otherwise of the service tax credit has to be examined at the end of input service distributor only. Service Tax assessees are under the regime of self-assessment and therefore it is the assessee himself who has to specify that the credit availed by him is admissible.(Para 5). It is necessary for the lower authorities to examine the nature of service received under each invoice, the eligibility of the credit or otherwise in terms of the definition. Sufficient details are not available to decide this issue and accordingly the matter has to be remanded back to the Original Adjudicating Authority.(Para 6).

    Matter remanded.

  • STO 2009 CESTAT 270
  • Service Tax: GTA service during the period 1.4.2005 to 30.9.2005: Denial of Cenvat credit utilization: Scope: The decision of the Tribunal in Mahindra Ugine Steel Co. Ltd. Vs Commissioner of Central Excise, Raigad reported in  wherein the Tribunal had held that CENVAT credit could be utilised to pay service tax due towards GTA service treating it as output service. The period of dispute in that case was from January, 2005 to February, 2006. The Explanation to "Output Service" in Rule 2 (p) of Cenvat Credit Rules 2004 restricting it to service for which a person not providing any taxable service or does not manufacture final products was liable to pay service tax was on the statute book also during the period of dispute in the case on hand. In passing the above order, the Tribunal had also relied on the following decisions of the coordinate benches of the Tribunal which had laid down the same ratio:- (i) India Cement Ltd. Vs Commissioner of Central Excise, Salem reported in . (ii) Andhra Pradesh paper Mills Ltd. Vs Commissioner of Central Excise, Vishakhapatnam reported in .(Para 2,3).

    Appeal allowed.

  • STO 2009 CESTAT 484
  • Service Tax: Withdrawal of appeal: Effect: There is communication from the party, regarding withdrawing the appeal.

    Appeal dismissed.

  • STO 2009 CESTAT 339
  • Service tax: Service Tax credit of the service tax paid on the GTA Service in connection with the receipt of those inputs not reversed while clearing inputs as such: Liability: The goods and services are two different things. When any duty paid inputs are received by a manufacturer, he is entitled to take Cenvat credit not only of Central Excise Duty paid on those inputs but also of the service tax paid on Goods Transport Agency Service used for transportation of the inputs upto the factory. The input goods and inputs services are two different inputs. When such cenvated inputs are removed as such as per the requirement of Rule 3(5) of Cenvat Credit Rules only, it is only the Central Excise duty credit which is to be reversed. While the issue can be examined at the of regular hearing, at this stage, the appellant have a strong prima-facie case. Moreover, the entire amount of service tax credit in dispute, alongwith interest, had been reversed prior to issue of the show cause notice.(Para 3).

    Stay granted.

  • STO 2009 CESTAT 337
  • Service tax: Whether the Appellants are eligible for service tax credit in respect of telephone/mobile service, Banking service, general insurance service, and courier service: Scope of definition of ‘input service’: As regards the telephone service, the Tribunal's judgment in the case Keltech Energies Ltd. vs CCE, Mangalore STO 2008 CESTAT 117 holds that these services are to be treated as input service eligible for the benefit of Cenvat credit. Moreover, insurance services, banking services and courier services would also be covered by the expression “services used directly or indirectly in or in relation to the manufacture of the finished goods”. The words - "directly or indirectly in or in relation to the manufacture of finished products” - in the definition of 'in put service' have to be given very wide meaning would cover telephone service, courier service and insurance service. Since the conclusion part of the definition of 'input service' also covers - "services used in relation to………activities relating to business, such as accounting, auditing, financing,………” and since use of the words - 'such as' after 'services used in relation to activities relating to business' indicates that the list of services of this category is not exhaustive, the 'banking services' would also be covered by the definition of 'input service'. In view of this, the Appellant have a strong prima-facie case. Waiver of pre-deposit allowed.(Para 3).

    Stay granted.

  • STO 2009 CESTAT 245
  • Service Tax: Business Auxiliary Services – Commission agent: Scope and liability: Period of limitation: The predominant activity of the appellants is that of a commission agent. During the relevant period, the appellants are covered by Notification No.13/2003 ST dated 20.6.2003 by which commission agents are exempted from Service Tax liability under Business Auxiliary Services. This position continued till 9.7.2004 when the said Notification was amended. After the amendment, the appellants were liable to pay Service Tax. They voluntarily registered for payment of Service Tax on 14.9.2004 under the category of Business Auxiliary Services. They informed of their activities to the department. However, later revenue proceeded against the appellants on the ground that even for the period from 1st July 2003 to 30th June 2004 they were liable to Service Tax under the Business Auxiliary Services. There is also no justification for invocation of longer period. In these circumstances, complete waiver of the pre-deposit is ordered(Para 3,5).

    Stay granted.

  • STO 2009 CESTAT 363
  • Stay applications of department: Rejected: Issue whether cenvat credit of service tax paid on inward transportation can be subsequently used for payment of service tax of inward consignments, as the issue referred to Larger Bench.

  • STO 2009 CESTAT 115
  • Service Tax: Cenvat credit on input services: The out-put services have been rendered in India. The input-services have also emanated in India and used for rendering further services in India. The payment of service tax for the output service is not being disputed. Therefore, the reasoning adopted by the Commissioner in denying the Cenvat Credit is not valid.(Para 6,7).

    Appeal allowed.

  • STO 2009 CESTAT 240
  • Service Tax: Cenvat credit on input services availed: Eligibility: The entitlement of each of the services can be examined at the time of final hearing. The Commissioner (Appeals) on a careful consideration of the matter has allowed the credit. In any case, there is no justification for staying the operation of the impugned orders. (Para 4).

  • STO 2009 CESTAT 108
  • Service Tax : GTA services : Utilisation of Cenvat credit : Scope : As per the Cenvat Credit Rules and as per the Manual, there is no restriction for utilization of Cenvat credit by the manufacturing unit towards payment of Service Tax as service tax provider. The demands were set aside by the Commissioner (Appeals) by the impugned order relying upon the Tribunal's earlier Order No. 695/07 in respondents own case as reported at STO 2007 CESTAT 151. The only ground raised by revenue in the appeal is that, the Tribunal's said decision has been challenged by the Revenue before the Hon'ble Punjab & Haryana High Court. However, this by itself is not sufficient to hold that the Commissioner (Appeals) has committed any error in following the precedent on the identical issue of the same assessee. (Para 2).

    Revenue appeal rejected.

  • STO 2009 CESTAT 247
  • Tour Operator Services: Taking into consideration the deposit made already and also the fact that appellants have suffered huge financial losses, the appellants are directed to pre-deposit Rs 75 lakhs within three months from the date of this order. (para 5)

  • STO 2009 CESTAT 152
  • Service Tax: Authorized sellers of Hero Honda Motor Cycles and also authorized service station for servicing and repairing of the Motor Cycles sold by them: Utilisation of Cenvat credit availed on GTA services: As recipient of GTA service, they had taken credit on such Service Tax paid on GTA services and utilized for payment of Service Tax on the services of Authorized Service Station. The issue has been decided by this Bench in number of appeals in assessee's favour, therefore, we do not find much merit in this stay application and the same is rejected.(Para 1,3).

    Revenue application rejected.

  • STO 2008 CESTAT 447
  • Service Tax: Construction services: Notification No.1/06-ST dated 01/03/2006: Prior to 01/03/2006 the condition of availment of Cenvat credit of service tax on inputs service was not there. Thus an assessee can take the Cenvat credit of the service tax paid on inputs services and utilize the same. In the current case, it is undisputed that the applicant had taken Cenvat credit of the service tax paid on inputs, services, which was received by them prior to 01/03/2006 but the payment thereof were made subsequently i.e., 01/03/2006. It is also undisputed that the said credit was utilized by them for discharging the service tax liability on the services rendered by them prior to 01/03/2006. Thus there is strong force on the contentions raised by the applicant.(Para 10,12).

    Pre-deposit waived, stay allowed.
     

  • STO 2008 CESTAT 474
  • Service Tax: Freight charges have to be treated as input service: Prima facie, the appellant have a strong case in their favour, as gases cannot be transported without the use of cylinders. Therefore, prima facie, it has to be treated as input service.(Para 4).

    Stay application allowed.

  • STO 2009 CESTAT 21
  • Limitation: ST-3 returns and also the Cenvat credit returns have been filed regularly by the appellant: Extended period not available.

  • STO 2008 CESTAT 328
  • Service Tax: Applicant wrongly paid the liability towards service tax from the Cenvat account: This issue is already settled in favour of the assessee in case of India Cements Ltd. vs. CCE, Salem reported in STO 2007 CESTAT 579, the Tribunal held as under:- 3. After examining the provisions of the Cenvat Credit Rules, 2004, we come across an Explanation to the definition of "output service" under Rule 2 (p), which reads as under:- Explanation - For the removal of doubts it is hereby clarified that if a person liable for paying service tax does not provide any taxable service or does not manufacture final products, the service for which he is liable to pay service tax shall be deemed to be the output service." Admittedly, the appellants did not provide any taxable service, though they did manufacture an excisable product. Again it is not in dispute that they were liable to pay service tax on GTA Service received by them in connection with clearance of their product from factory. But for the above Explanation, the GTA Service so received by the appellants would have been covered under the definition of "input service" under Rule 2 (1) of the aforesaid Rules. By virtue of the Explanation, it shall be deemed to be "output service".(Para 1).

    Stay petition allowed.

  • STO 2009 CESTAT 448
  • Service Tax: GTA service received by them as “output service” in terms of the Explanation to the definition of “output service” given under Rule 2(p) of the CENVAT Credit Rules, 2004: Scope: They were entitled to treat the GTA service received by them as “output service” in terms of the Explanation to the definition of “output service” given under Rule 2(p) of the CENVAT Credit Rules, 2004. This Explanation was deleted only on 19.4.06. During the period of dispute, the above Explanation was in force and, therefore, they were entitled to utilize input service tax credit for payment of service tax on the GTA service received by them in view of decisions of this Tribunal on this issue in favour of the assessee, in the case of, 1) Commissioner Vs Nahar Industrial Enterprises Ltd. STO 2007 CESTAT 151 2) Indian Cements Ltd. Vs CCE STO 2007 CESTAT 579 3) Bhushan Pomer & Steel Ltd. Vs CCE STO 2007 CESTAT 1049 4) Nagammai Cotton Mills (P) Ltd. Vs CCE STO 2007 CESTAT 1202 (Para 1,2).

    Stay granted.

  • STO 2008 CESTAT 577
  • Central Excise: Irregular availment of CENVAT credit on inputs: The appellants had only taken CENVAT credit of the duty actually paid on the inputs by the input manufacturers. Though the input suppliers allowed discounts to the appellants on the price of the goods after paying higher amount of duty, they never claimed any refund of duty. The appellants were entitled to take CENVAT credit of the duty actually paid on the inputs. Prima facie, they are not liable to honour the impugned demand based on irregular availment of CENVAT credit. They are supported by case law viz : (i) Commissioner of Central Excise, Hyderabad Vs Tube Investments of India Ltd. [2004 (176) E.L.T. 363 (Tri.-Bang.)] (ii) Indian Oil Corporation Ltd. Vs Commissioner of Central Excise, Guntur [2006 (206) E.L.T. 533 (Tri.-Bang.)] (iii) Commissioner of Central Excise & Customs Vs Jyoti Ltd. [2008 (223) E.L.T. 171 (Guj.)](Para 2,4). 

  • STO 2009 CESTAT 203
  • Service Tax: Agency commission falling under the category of 'Insurance Auxiliary Services' and ‘Management consultancy Services': Denial of Cenvat credit: The demand has been confirmed by denying facility of availment of Cenvat Credit on input service towards payment of service tax on agency commission falling under the category of 'Insurance Auxiliary Services' and ‘Management consultancy Services' on the basis of CBEC circular dated 23.8.2007, which is covered in favour of the applicants by Tribunal's order No S/247/08/C- IICSTB dated 21.5.2008 in the case of M/s Birla Sunlife Insurance Co Ltd vs Commissioner of Service Tax, Mumbai, relying upon Tribunal's decisions in CCE, Chandigarh vs Nahar Industrial Enterprises Ltd STO 2007 CESTAT 151 Pune vs Thermax Ltd (STO 2007 CESTAT 998) and M/s Aditya Flexipack vs CCE (2008 -TIOL-124). Pre-deposit waived.(Para 1).

    Stay granted.

    Date: 31-10-2014