HIGH COURT RULING (SERVICE TAX)...Section 65(105)(zzzza)(ii)(b) of the Finance Act, is fallacious and cannot be tenable. It is also stated by the petitioner that if at all the first

HIGH COURT RULING (SERVICE TAX)

2015-TIOL-2002-HC-DEL-ST

Hindustan Petroleum Corporation Ltd Vs CCE (Dated: August 25, 2015) ST - Business Auxiliary Services - Agreement between HPCL & IGL for distribution of CNG through HPCL owned/leased retail outlets - department took a view that HPCL was providing Business Auxiliary Services to IGL with regard to the sale of CNG through the retail outlet of HPCL - Inasmuch as the activity of HPCL in marketing or sale of CNG belonging to IGL would fall within the ambit of Section 65 (105) (zzb) r/w Section 65 (19) of the FA, 1994 and, therefore, exigible to service tax - demand confirmed by CCE, De lhi-III and Tribunal ordering pre -deposit of 50% of tax demand and proportionate interest - appeal to High Court. Held: Since a Coordinate Bench of the CESTAT while interpreting identical clauses of a similar agreement involving HPCL itself came to the conclusion that HPCL was not providing BAS to MGL in carrying on the activity of providing CNG to consumers through its retail outlets, the final judgment [ 2014-TIOL-1114-CESTAT-MUM ] itself constituted a prima facie case in favour of HPCL - if the Bench felt that the agreement called for a different interpretation, and that, therefore, the decision of the Coordinate Bench of the same strength in BPCL v. CST, Mumbai required reconsideration, then the appropriate course for the Principal Bench, CESTAT to adopt should have been to refer the matter to a larger Bench of the CESTAT - CESTAT was not justified in declining to grant an unconditional stay in favour of the Appellant, without requiring the making of any pre-deposit - Order set aside and unconditional stay granted: High Court [para 8, 10, 11]

Also see analysis of the order


CST Vs Japan Airlines International Co Ltd (Dated: August 25, 2015)

ST - s.86 of FA, 1994 - Review order - Full Bench of the High Court has held by its order dated 20.07.2015 that Decision rendered by the Committee of Chief Commissioners/Commissioners is an administrative function and would, therefore, not require the members of the Committee to meet, consult and give independent reasons; that Tribunal has no jurisdiction whatsoever to strike down a decision taken by the Committee on the administrative side - In view of the above judgment, the impugned order of the CESTAT dismissing the appeal preferred by the Appellant herein i.e. the Commissioner of Service Tax on the ground that the filing of the appeal was not preceded by an application of mind by the Committee of Chief Commissioners is set aside and the appeal of the CST is restored to the file of CESTAT for being disposed of on merits - It is also clarified that the delay of six days in filing the said appeal will be taken to have been condoned - Appeal allowed : High Court

2015-TIOL-1987-HC-JHARKHAND-ST

M/s Ramchandra Singh Vs UoI (Dated: July 8, 2015)

ST - Chance taking petitioner - There is tendency of those persons who are liable to

make payment of tax+interest+penalty to take a chance before the Court - petitioner is lethargic, but certainly not an ignorant person and is knowing all fine niceties of law - Vigilant petitioner should have filed their appeal within the limitation period or at least within condonable delay period: HC [para 4 (v)]


2015-TIOL-1974-HC-ALL-ST

CCE Vs M/s Vodafone Essar South Ltd (Dated: August 24, 2015)

ST/CE - S.35C(2A) of CEA, 1944 - If the main provision cannot be treated as mandatory, the first, second and third proviso also cannot be treated as mandatory but directory - The three provisos have to advance the cause of justice and not to defeat it - Tribunal is vested with the power to extend the stay order beyond the specified maximum time limit prescribed - Revenue appeals dismissed: High Court [para 18, 19, 22, 29]


2015-TIOL-1973-HC-AP-ST

CC, CE & ST Vs M/s Tpsc India Pvt Ltd (Dated : July 9, 2015)

Service Tax - Employees of parent company at Japan deputed to work in India - Demand under reverse charge under Supply of manpower service - Revenue in appeal against the order of Tribunal granting unconditional stay - Held: The Tribunal had taken into consideration of the fact that the issue with regard to similar circumstances was already the subject matter of two decisions of the Tribunal at Delhi. In that view of the matter, when the issue is squarely covered, there would be no justification for directing a pre -deposit - No illegality or infirmity in the impugned order - The appeal is dismissed.


M/s Phoenix Logistics Pvt Ltd Vs CC (Dated: July 9, 2015)

Service Tax - Appeal against the order of Tribunal declining to condone the delay in filing the appeal and dismissing the same on the ground of delay - Held: The fact that order dated 26.03.2012 came to be served on the employee of a sister concern and the same came to the notice of the appellant belatedly, cannot be ignored. No motive as such can be attributed to the appellant for not filing appeal in time, especially in view of the fact that the appellant is diligently agitating the issue involved as against the assessment for the previous years and also for subsequent years - The Tribunal could have taken a lenient view and, by putting the appellant on terms, could have condoned the delay - Inasmuch as the Tribunal failed to exercise the discretion, considering the facts of the case, appeal is allowed on condition of the appellant depositing a sum of Rs.3,50,000/- within a period of six weeks. ( Paras 7 & 8)

2015-TIOL-1961-HC-MAD-ST

Tamil Nadu Chit Fund Companies Association Vs UoI (Dated: July 24, 2015)

Service Tax - Chit Fund service - Writ Petition challenging the validity of Notification No 27/2008 ST dated 27.05.2008 on the ground that the said Notification is widening the scope of Section 65(12) of the Act to levy Service Tax on Chit Funds - Identical

issue stands decided by the Kerala High Court upholding the levy of Service Tax on Chit Funds - Following the same ratio, petition is dismissed.


CCE Vs M/s Thriveni Earth Movers Pvt Ltd (Dated: June 18, 2015)

Service Tax - Appeal by revenue against order of the Tribunal - Maintainability under Section 35 G of the Central Excise Act,1944 - Held: The issue raised relates to whether the handling of limestone from the quarry would be an activity in relation to mining or cargo handling services. The Department contends that the said activity is cargo handling services and, therefore, liable to service tax in terms of sub-clause 22 (zr) of the Finance Act, 1994, which is disputed by the assessee claiming that the activity would fall under mining of mineral, oil and gas. Since the issue relates to classification of goods as well as rate of duty, the decision of Supreme Court in Navin Chemicals case is squarely applicable to the case on hand - Appeal dismissed as not maintainable with liberty to pursue the matter before the Supreme Court . (Para 8)

2015-TIOL-1955-HC-JHARKHAND-ST

M/s B R Singh And Co Vs CCE & ST (Dated: July 2, 2015)

ST - Litigants should not suffer due to the fault of their Advocate - Appeal should have been decided on merits and not on mere technicalities - Delay of 536 days in filing appeal condoned: High Court [para 6]


2015-TIOL-1951-HC-KAR-ST

M/s We Help Vs CCE (Dated: January 21, 2015)

Service Tax - Valuation - appellant was supplying manpower to MESCOM and they were claiming 5% as the service charges - The dispute was, whether the amount paid by the MESCOM is to be treated as service charges or only that 5% claimed by the appellant is to be treated as service charges; demands confirmed and agitated before the Tribunal, who viewed that the appellant has not made out a prima facie case in his favour and there fore the entire amount of tax should be deposited within eight weeks - The stay order issued by Tribunal is challenged in this writ petition.

Held: Though the substituted Section 35F of the Central Excise Act 1944 appears to be prospective in nature certa inly the intention behind it cannot be ignored - The original proprietor in the instant case is dead; his son is levied with these taxes; and he is not carrying on any business - Under these circumstances justice of the case would be met by depositing 50% instead of the entire amount as directed by the Tribunal - Appellant is directed to deposit 50% of the demand within eight weeks upon which, Tribunal shall take up the matter and decide the case on merits [Para 8]


M/s G Ramamoorthi Constructions (I) Pvt Ltd Vs Commissioner (Adjudication) (Dated: July 28, 2015)

Service Tax - Works Contract Service - Demand of Service Tax on construction of Educational Institutions and Hospitals by denying the benefit of Circular

No.80/10/2004 ST, dated 17.9.2004 - Order in Original challenged in the Writ Petition.

Held: The analysis given by the first respondent that the educational institutions to whom the petitioner provided services are profit earning concerns and cannot be construed as non-commercial and thereby, they would fall within the ambit of "construction of new building primarily for the purpose of commerce or industry under Section 65(105)(zzzza)(ii)(b) of the Finance Act, is fallacious and cannot be tenable. It is also stated by the petitioner that if at all the first respondent suspected the usage of the buildings or civil structures provided by the petitioner were meant to use or to be used for the purpose of commerce or industry, he could have very well called for records from the Income tax Department for verification and that the petitioner had already given the complete details of the educational institutions for whom they provided constructions - The impugned proceedings are liable to be set aside and since the issue has not been dealt with the properly in terms of the exemption Circular No.80, dated 17.9.2004, the matter is remitted back for fresh consideration. (paras 9,10 &11)

2015-TIOL-1888-HC-MUM-ST

M/s S2 Infotech Pvt Ltd Vs UoI (Dated: August 3, 2015)

ST - Personal Hearing held in August 2012 & o-in-o issued in June 2014 - Delay in passing adjudication order is contrary to public interest - Sitting on files is not conducive to the interest of nation's economy - Remedial measures must be taken including calling for an explanation from the officers concerned - if no action is taken and the officers are allowed to go scot-free, others would be encouraged - CC, Service Tax to file comprehensive affidavit indicating the number of files pending and the time required to dispose of those cases: High Court [para 4]



Sathyamangalam Agricultural Producers Cooperative Marketing Society Ltd Vs CESTAT (Dated: August 7, 2015)

Service Tax - Condonation of delay - Appeal against order of the Tribunal declining to condone delay of 215 - 310 days in filing the appeals.

Held: A careful perusal of the affidavits filed by the appellants (cooperative societies) in support of the applications for condonation of delay would show that the delay had in fact been properly explained with genuine reasons. The Tribunal ought to have taken a pragmatic view. The appellants also appear to have a good case on merits - Appeals allowed and the matter is remitted to the Tribunal (Para 6 & 7)

2015-TIOL-1828-HC-MUM-ST Tahnee Heights Coop Housing Society Ltd Vs UoI (Dated : August 3, 2015)

ST - Having complied with the Tribunal's order and granted refund of tax, withholding the interest claim on a possible realisation that if this is also awarded and paid, the proceedings before the SC would be rendered infructuous cannot be the legal position nor can the understanding of the parties be based on the same: High Court [para 9]



Anurag Kashyap Vs UoI (Dated : August 4, 2015) ST - Petitioner filing application under ST VCES, 2013 scheme and making payments but designated authority not issuing acknowledgement of discharge in form VCES-3 - SCN issued for period covered under VCES & further - merely because the SCN is going to be adjudicated by a distinct authority does not mean that the petitioner is prevented from canvassing appropriate pleas - no reason to keep the petition pending and entertained any further: HC



Xavier Thomas Vs UoI (Dated: July 30, 2015)

Condonation of delay – Tribunal noted that the Commissioner (Appeals) was helpless and he could not have exercised the power to condone the delay beyond the specified limit and, therefore, the appeal was correctly held to be time barred by the Commissioner (A) – Petition against this order of the Tribunal.

Held: Petitioners attempt in seeking a direction to the Tribunal to entertain a statutory appeal although it is held to be barred by limitation is to ask the Court to do something indirectly which it cannot do directly - Tribunal's conclusion cannot be said to be perverse or vitiated by any error of law apparent on the face of the record – High Court cannot put a premium on the negligent act of the petitioner-appellant of not approaching the Appellate Authority in time by exercising its plenary powers - Powers of High Court under Article 226 of the Constitution of India do not enable it to override any statutory provision nor pass an order contrary to law – Writ Petition dismissed: High Court [para 6, 7]

2015-TIOL-1743-HC-AHM-ST

Eagle Corporation Pvt Ltd Vs UoI (Dated: April 21, 2015)

Service Tax - Order of Settlement Commission challenged on the ground that the main contractor (Mahindra Logistics Ltd - MLL) paid Service Tax and the Petitioner only executed the contract on back to back basis as sub-contractor of MLL.

Held: From perusal of the contract, by no stretch of imagination, it can be said that the petitioner is subcontractor for providing transportation services to Ms. Asia Motor Works Ltd. On considering the entire contract / agreement between the petitioner and M/s.MLL, it is an independent contract between the petitioner and M/s.MML to provide buses to M/s.MLL. As per the said agreement / contract the petitioner is appointed as a transporter to transport the employees of customer from pick up point to plant and back and managing interpla nt vehicles movement. That pursuant to the contract / agreement between the petitioner and M/s.MLL, the petitioner has supplied buses for transportation to the clients of M/s.MM / M/s.MLL ( para 4.02)

No error in the view taken by the learned Settlement Commission while confirming the service tax liability of Rs.31,01,599/- with respect to the services provided by the petitioner to M/s.MLL. It is rightly held that with respect to the service / transportation service / buses provided by the petitioner to M/s.MLL, the petitioner is liable to pay service tax on the same. (para 6)

Settlement Commission - Powers - By the nomenclature of the Commission namely "Settlement Commission" itself is suggestive of the fact that the Settlement Commission is established for settlement of the disputes between the parties and to have settlement without following the normal procedure of adjudication of leading evidence etc. and assessee approaches the Settlement Commission with a view to get immunity and to save their skin from prosecution provided in the Act for non-payment of the Tax which is due and payable by the assessee as per the Department. No merit in the submission of the petitioner that the Settlement Commission has jurisdiction to decide the dispute with respect to either applicability of the service tax and/or entering into the questions like the questions raised in the present petition. ( para 8)


2015-TIOL-1715-HC-DEL-IT

CIT Vs Jindal Photo Films Ltd (Dated: July 20, 2015)

Whether interest on fixed deposit receipts in Banks can be said to be derived from an industrial undertaking and will be included in the computation for deduction under Sections 80HH and 80I - NO: HC


CST Vs Amadeus India Pvt Ltd (Dated: July 14, 2015)

ST - Whether the export of services provided by respondents constituted 'service' and was exigible to service tax under Section 73(1) read with Section 66 and 68 of the Finance Act, 1994 read with Rules 6 of the Service Tax Rules 1994?.

Held - Section 83 of the FA, 1994 makes the provisions of Sections 35 G and 35 L of the CE Act ipso facto applicable in relation to service tax - In Ernst & Young 2014-TIOL-263-HC-DEL-ST Court held that any question having relation to a rate of duty would include a determination as levy of tax on a particular service; that - the words 'rate of tax' in relation to rate of tax would include the question whether or not the activity is exigible to tax under a particular or specific provision & that an appeal under Section 35-G of the CE Act against the order of the CESTAT on the question of exigibility of a service to tax was not maintainable before this Court. Following this decision, sub-section (2) was inserted in Section 35 (L) of the CE Act by the Finance (No. 2) Act, 2014 to clarify that, the determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment- that a Letter 334/15/2014-TRU dated 10.07.2014 has also been issued by TRU clarifying this position. Appeals dismissed as not maintainable: High Court [para 8, 9]


M/s Lallooji And Sons Vs Officer Incharge Magh Mela (Dated: July 20, 2015)

Service Tax - Pandal or Shamiana Service for pure religious ceremonies or congregation - Allahabad Magh Mela - Service Tax department contends that that the petitioner is a "Mandap keeper" and, accordingly, Service Tax is liable to be paid by him.

As per definitions,

"Pandal or Shamiyana contractor means - a person engaged in providing any service, either directly or indirectly in connection with the preparation, arrangement, erection or decoration of a Pandal or Shamiyana and includes the supply of furniture, fixtures, lights and light fitting, floor covering and other articles for the use there in."

Mandap Keeper is a person who allows temporary occupation of a Mandap for organizing any official, financial, social or business function. The Mandap is in relationship to any immovable property as defined under Section 3 of the Transfer of Property Act, 1882 and includes any furniture and fixtures etc.

The petitioner is a Pandal or Shamiyana contractor providing services in connection with the preparation, a rrangement, erection or decoration of a Pandal or Shamiyana. Further, Mandap keeper is for organization of any social, official or business function. However, the Department has issued a clarification dated 17.9.2004 which provides that Pandal or Shamiyana keepers will not be liable for Service Tax, if they provide services for purely religious ceremony and congregation.

Held: it is clear that services provided by a Shamiyana and Pandal contractor for a religious fair or congregation in the Mela area at Allahabad would be covered under the Circular dated 17.9.2004. In the instant case the tender invited by the Mela Officer was for the purpose of erection of temporary tents etc. in the Mela area during the Magh Mela season for the year 2004-05. Since the supply of the tents by the petitioner was for a religious congregation, which was held in the Mela area at Allahabad, the respondent No.1 was not liable to pay the Service Tax to the petitioner.

Accordingly the relief claimed by the petitioner cannot be granted.

The writ petition is dismissed with the observation that it is not open to the Central Excise Department to demand Service Tax on the services provided by the petitioner in the Mela area for the year 2004-05.


CST Vs M/s Shah Coal Pvt Ltd (Dated: July 20, 2015)

ST - Respondent entered into a contract with M/s. Ambuja Cement Limited for movement of coal from various collieries to the latter's plants - The main activity undertaken included supervision of coal loading and transportation of coal by road - Department was of the view that the appellant was rendering services classifiable under "clearing and forwarding agent" - Revenue in appeal against CESTAT order. Held: Relying upon two paragraphs 11 & 12 of decision in M/s. Coal Handlers Private Limited 2015-TIOL-101-SC-ST and some of the aspects which emerge from the terms and conditions of the contracts between M/s. Coal Handlers Pvt. Ltd. and the assessee it cannot be concluded that the services rendered fall within the definition as relied upon by Revenue - Supreme Court judgment concludes the issue in favour of the assessee as also against the Revenue - High Court cannot ignore a binding precedent

and entertain any question of law when it is not substantial but stands answered by the Supreme Court - Revenue appeal has no merits, hence dismissed: High Court [para 10, 11]


CCE Vs Dharwad Co-Operative Milk Producers Societies Union Ltd (Dated: June 8, 2015)

Service Tax - Goods Transport Operator service - Respondent seeking refund of Service Tax consequent to the order of Commissioner (Appeals) holding them not liable to pay tax - Revenue in appeal against order of Tribunal allowing the refund.

Held: If the revenue was aggrieved by the order of Commissioner (Appeals), it ought to have taken such further action in accordance with law. It is trite law that once the appeal is allowed in favour of the assesse, the assessee must be entitled to all the benefit flowing there from. The Assistant Commissioner while dealing with the application for refund was not justified in sitting in judgment over the findings of Commissioner (Appeals), firstly because the Commissioner (Appeals) had passed the appellate order in a different jurisdiction and secondly because the Commissioner (Appeals) is a superior to the Assistant Commissioner - No exception can be taken to the order passed by the CESTAT by allowing the appeal - No substantial questions of law arises for consideration. ( para 7)

2015-TIOL-1645-HC-DEL-ST-LB

CST Vs Japan Airlines International Co Ltd (Dated : July 20, 2015)

ST/CX/CUS - s.86 of FA, 1994 - s.35E, 35B of CEA, 1944 - s.129A, 129D of Customs Act, 1962 - Review Order - Decision rendered by the Committee of Chief Commissioners/Commissioners is an administrative function and would, therefore, not require the members of the Committee to meet, consult and give independent reasons – Tribunal has no jurisdiction whatsoever to strike down a decision taken by the Committee on the administrative side: Larger Bench High Court



Sai Wardha Power Company Ltd Vs UoI (Dated: July 14, 2015)

ST -Notfn. 12/2013-ST - Once the SEZ unit secures the approval of the 'Approval Committee' and furnishes a declaration in Form A-1 verified by the Specified Officer of the SEZ, the jurisdictional DC/AC is enjoined with a duty to issue the authorization in Form A-2 -WP allowed: High Court [para 7, 8]


2015-TIOL-1602-HC-KERALA-ST

M/s Geojit Bnp Paribas Financial Services Ltd Vs CCE, C & ST (Dated: July 6, 2015)

Service Tax - Refund of Service Tax erroneously paid - Writ Petition against order rejecting the refund claim on the ground of limitation by invoking the provisions of Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax.



Mrs Prashanthi Vs UoI (Dated: April 29, 2015)

Service Tax - Writ Petition against action of recovery initiated by the department under Section 87 of the Finance Act, 1994 even before the Show Cause Notices are adjudicated.

Held: The words "amount payable by a person" used in Section 87 will have to be considered in the background of Section 73 of the Act inasmuch as, show cause notice issued under Section 73(1) of the Act is required to be adjudicated after considering representation of the person if filed and thereafter determine the amount payable. Any deviation in this regard would be in violation of principles of natural justice - doctrine of Audi Alteram Partem would be attracted - Thus, jurisdictional Central Excise Officer would be entitled to recover the amount from the person payable and payable would by such person after adjudication has been done as otherwise, it would amount to putting the cart before horse. ( para 16)

Regard being had to the scheme of the Finance Act, 1994 it does not leave any doubt that until and unless there is determination and adjudication either under Section 72 or under Section 73 of the Act, respondents cannot resort to invoke Section 87 of the Finance Act. (para 18)

Impugned notices under Section 87 are illegal and quashed - Respondents directed to remit the amounts recovered back in respective accounts. (Para 21 & 22).



Fifth Avenue Sourcing (P) Ltd Vs CST (Dated: June 12, 2015)

Service Tax - Mandatory pre -deposit of 7.5% under amended Section 35F of the Central Excise Act, 1944 - Petition seeking to allow filing appeal without mandatory deposit as the dispute pertains to the period prior to amendment of Section 35F.

Held: In the light of decisions by the High Court of Kerala and Andhra Pradesh, it is held - as the amended provisions of the Act are not given retrospective effect as of from an anterior date, it has been construed that the amended provisions are prospective'. (para 14)

Petitioner directed to file an Appeal before the CESTAT along with stay application, without making pre -deposit of 7.5% of the tax amount confirmed against the petitioner, within a period of two weeks from the date of receipt of a copy of the order. (para 15)



M/s Ventrapathi Financial Services Vs Supdt.CCE (Dated: June 25, 2015)

Service Tax - Service of Show Cause Notice - Section 37C as made applicable to Service Tax under Section 83 of the Finance Act, 1994 - Order in Original challenged on the ground that Show Cause Notice was sent to wrong postal address when the department has correct address on record.

Held: It cannot be said that the Department was not aware of the correct address of the petitioner and it is an admitted fact that both the show cause notice and final order were dispatched to the wrong address resulting in violation of the statutory requirement of service notice for the purpose of fastening liability of service tax on the petitioner - Impugned order set aside and matter remanded for fresh adjudication.


CST Vs United Spirits Ltd (Dated: June 18, 2015)

Service Tax - Sponsorship of IPL cricket teams - Revenue's appeal against order of the Tribunal setting aside the demand on the ground that the services relate to sporting event.

Held: Dispute relates to service tax payable on any service/taxable service - High Court has no jurisdiction under Section 35G - Appeal dismissed as not maintainable (para 5)


Fun Multiplex Pvt Ltd Vs UoI (Dated: July 6, 2015)

ST - Tax on distributors/sub-distributors of films & exhibitors of movie under BSS - Petitioner claiming that Board Circular and O-in-O founded on the same is ultra vires FA, 1994/Constitution of India - Commissioner's findings may refer to the Circular issued by the Board, but prima facie , it is not entirely based on the same - Merely making a reference to some Circular would not mean that the Appellate Tribunal cannot be approached or that the Appellate Tribunal will not view the matter in its entirety and in proper perspective - Tribunal to entertain the Appeal and not dismiss it on the ground that it is barred by limitation if appeal is filed within four weeks - Petition disposed of: High Court [para 6, 7, 8]



M/s Bootleggers Island Vs CESTAT (Dated : June 4, 2015) Service Tax - Appeal against order of the Tribunal confirming penalties - Contention that there was reasonable cause for non-payment of Service Tax and the appellant is eligible for waiver of penalty under Section 80.

Held: From the record of proceedings, it is seen that the Tribunal has clearly come to hold that it is not a case of the appellant that the benefit of Section 80 of the Finance Act, 1994 should be extended. In the absence of such a substantial plea and there being no bona fide justification for exemption, penalty was imposed - No reason why the Authorities should depart from imposing such penalty as mandated by the provisions of the Act. Question of law answered against the appellant and in favour of the respondent/Revenue - With regard to contention that no penalty is imposed as Service Tax was paid before the issue of notice, liberty granted to the appellant/assessee to agitate before the Commissioner in the light of the High Court order in 2015-TIOL-142-HC-MAD-ST (para 12,14)


P K Shefi Vs CESTAT (Dated : June 12, 2015)

Service Tax - Supply of supply of food and refreshments to the passengers on board the trains run by the Indian Railways - Demand of Service Tax under the category of Outdoor catering service - Appeal against the order of Tribunal directing pre -deposit.

Held: In view of the different views taken by two High Courts and going by the nature of the services provided by the appellant as alleged by the Department in the adjudication order, the issue still remains debatable on facts and on law - Court is not inclined to go into the merits of the case - Taking note of the financial hardship pleaded and in view of the uncertainty on the levy of service tax, since still this is a debatable issue, order of Tribunal is modified and the amount of pre-deposit reduced marginally. (para 19)


Narasimha Mills Pvt Ltd Vs CCE (Dated: June 11, 2015)

Service Tax - Voluntary Compliance Encouragement Scheme 2013 - Whether an order of rejection of declaration filed under VCES Scheme, passed by the Designated

Authority is appealable under Section 85 of the Finance Act, 1994.

Held: Clause (1) of Section 85 denotes that any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise. In terms of Section 65B (55) of the Act, 1994, the definition "adjudicating authority" available under Section 2(a) of the Central Excise Act, 1944 would equally apply to the Finance Act, 1994. (para 14 & 16)

When the second respondent has given a categorical finding on going through the facts and circumstances of the case by applying his mind, his decision, wo uld fall within the meaning of "adjudication" which is meant by settled law that "giving or pronouncing a decision or order judicially" and thereby, the second respondent has acted as an adjudicating authority and not as a designated authority. (para 17)

The Service Tax Voluntary Compliance Encouragement Scheme, 2013 is not a self-contained code, but is to be construed as a part and parcel of the Chapter V of the Act, 1994 in view of the contents of section 105 of the Finance Act, 2013. Therefore, when the said scheme itself is construed as part and parcel of the Finance Act, all other provisions of the Act except to the extent specifically excluded would automatically apply to proceedings under the scheme. (para 18)

Commissioner (Appeals) is directed to take up the appeal preferred by the petitioner and dispose of the same in accordance with law. (para 19)



M/s Ganesh Yadav Vs UoI (Dated: May 29, 2015)

Service Tax - Writ Petition challenging the amendment to Section 35F of the Central Excise Act, 1944 requiring mandatory pre -deposit to file appeal - Petition seeking to declare the amendment as ultra vires and unconstitutional.

Held: A fiscal legislation canstipulate a requirement of pre-deposit as a condition precedent to an appeal to be entertained. The restraint on the power of the legislature to do so, is that the condition which is prescribed should not be so onerous so as to restrict or abrogate the right of appeal altogether - Stay applications and the issue of whether a case of undue hardship was made out, gave rise to endless litigation. There would be orders of remand in the litigative proceedings. All this was liable to result in a situation where the disposal of stay applications would consume the adjudicatory time and resources of the Tribunal or, as the case may be, of the Commissioner (Appeals). Parliament has stepped in by providing a requirement of a deposit of 7.5% in the case of a First Appellate remedy before the Commissioner (Appeals) or to the Tribunal. The requirement of a deposit of 10% is in the case of an appeal to the Tribunal against an order of the Commissioner (Appeals). This requirement cannot be regarded or held as being arbitrary or as violative of Article 14.(para 8)

Whether the amended provisions are applicable to the Show Cause Notices issued prior to the amendment - Words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35F of the Act. (para 18& 19)



M/s Visranthi Builders Vs CESTAT (Dated: June 4, 2015)

Service Tax - Penalty - Appeal against the order of Tribunal confirming penalty on the appellant - Held: The Adjudicating Authority has given a clear finding that this is a case of deliberate suppression of facts with a willful intention to evade payment of Service Tax and the evasion would not have come to light but for the investigation conducted by the Officers - On a revision, the Commissioner (Appeals) initiated penalty proceedings and imposed penalty - The said order was confirmed by the Tribunal following the decision of the Supreme Court in the case of Union of India Vs . Dharmendra Textile Processors - 2008-TIOL-192-SC-CX-LB , which cannot be faulted with. When there is a deliberate suppression, the provision mandates imposition of penalty. No reason why the Authorities should depart from imposing such penalty as mandated by the provisions of the Act. ( para 7)

Simultaneous penalty under Section 76 and 78 - liberty granted to the appellant to agitate the matter before the Commissioner in the light of judgement of this court in case of Dhandayuthapani Canteen - Vs - Customs, Excise and Service Tax Appellate Tribunal . ( para 9)


Zoetis Pharmaceutical Research Pvt Ltd Vs UoI (Dated: June 15, 2015)

ST - Refund - Petition filed seeking quashing of the order-in-original and the SCN in the matter of rebate/refund claims filed by petitioner - Respondent Revenue agreeing to the plea made for quashing and setting aside the order and readjudication of the show cause notices on their own merits and in accordance with law - in the light of the reassurances given by counsel of the Revenue, Writ petition allowed - Petitioners to appear before the respondent with all records and documents for a hearing in the matter and respondent to pass a fresh order in accordance with law uninfluenced by any earlier conclusions: High Court [para 5]


Gopala Builders Vs Directorate General of Central Excise Intelligence (Dated: June 9, 2015)

ST - Without adjudicating actual amount of ST to be paid by petitioner, on assumed basis, ST has been demanded by revenue - It cannot be disputed that even before adjudication, revenue could recover the amount, but on assumed basis, recovery which is being made that smacks with arbitrariness - When SCN was issued by department to which the petitioners have raised their objections, recoveries without adjudication of such disputed taxes was simply not permissible in law - Petitioner is entitled for interim order: HC


M/s Bhagwati Security Service Vs UoI (Dated: May 20, 2015)

Service Tax - Petition seeking reimbursement of interest and penalty from BSNL, who is the recipient of the service - Petition filed consequent to the earlier order of the High Court directing BSNL to reimburse Service Tax to the Petitioner, which was

complied with by BSNL.

Held: It has been recorded under the order impugned of the Asst General Manager that the petitioner himself had committed default in payment of the service tax. It has been noticed that the total amount of the service tax was in respect of a period of 10 years earlier. Therefore,default in payment of the service tax resulting inconsequential penalty and interest was by the petitioner himself. Impugned order needs no interference.


Centre For Development Of Imaging Technology (C-DIT) Vs CCE & C (Dated: June 1, 2015)

Service Tax – Appeal against order of pre -deposit of Rs one crore by the Tribunal even after the High Court remanded in the first round to examine the aspect of limitation.

Held: The order passed by the Tribunal is not one in compliance with the binding directions of this Court - The same cannot be sustained - The order of the Tribunal itself show that the official of the appellant himself had admitted that 35 lakhs of the service tax demanded was for the normal period. Appellant is directed to deposit Rs.35 lakhs within four weeks and report compliance before the Tribunal. (para 4,5&7)


M/s Thirumurugan Enterprises Vs CESTAT (Dated: April 30, 2015)

Service Tax - Defective show cause notices - Commissioner (Appeals) allowed the appeals on the ground that the Show Cause Notices did not contain the category of services under which the liability would fall, nature of activities carried out by them and the valuation of the services and on limitation - On revenue's appeals, Tribunal remanded the matters to original authority - Assessees are in appeal against the order of Tribunal.

Held: The Commissioner (Appeals) has decided the issues on two aspects, viz., one on the vagueness of the show cause notices stating that it is bereft of details and being without clarity and the other on the plea of limitation. However, the findings of the Tribunal runs counter to the plea raised by the appellants/assessees before the Commissioner (Appeals) as the show cause notices were challenged on the very foundation that they are vague and without particulars as to classification of works that attracts service tax.( para 13)

The various contentions raised by the present appellants before the Commissioner (Appeals) shows that that issue as raised is not pure and simple break-up of amounts, which should have been shown in the show cause notice, but the show cause notices itself being vague and bereft of details as to the nature of taxable services rendered by the appellants/assessees to NLC. (para 14)

The issue of limitation has been answered by the Commissioner (Appeals) in favour of the present appellants, but which finding has not been considered by the Tribunal while discussing the issue. No finding has been rendered by the Tribunal on the aspect of limitation. (para 15)

The arguments of the standing counsel for the Department that all the issues can be trashed out before the adjudicating authority does not find favour with this Court as the Department cannot be allowed to fill up the lacunae in the show cause notices on

the basis of an open remand as alleged by appellants.(para 17)

Appeals allowed by way of remand to the Tribunal to consider all the issues on which findings were recorded by the Commissioner (Appeals). (para 19)

Also see analysis of the Order


M/s Chandra Associates Vs CC & CE (Dated: May 07, 2015)

Service Tax - Condonation of delay by the Commissioner (Appeals) - Section 85(3A) of the Finance Act, 1994 - Validity of the order passed by the Commissioner (Appeals), declining to condone the delay of 26 days beyond the statutory period of 60 days challenged.

Held: The right of filing appeal under Section 85 (3A) of the Finance Act is a statutory right conferred on the person concerned by appropriate legislation enacted by the Parliament. Right of appeal, it is well established, is a very valuable right which cannot be taken away by adopting such an approach which is reflected from the impugned order passed by the Commissioner (Appeals). The legal and judicial approach requires the statutory authority to adopt the course which farthers the cause of justice and which enables the person intending to file an appeal not only to exercise that right but to actually avail the same. The endeavour, in such matters, should be to give opportunity to avail the right of appeal, which is a statutory right; rather than to shut it - Impugned order is quashed and the Commissioner (Appeals) is directed to reconsider the application moved by the Petitioner for condonation of delay.

2015-TIOL-1406-HC-P&H-ST

M/s Tops Security Ltd Vs CCE & ST (Dated: May 26, 2015) Service Tax - CESTAT has the power to restore an appeal which has been dismissed for any reason including for non-compliance of a deposit order. "to secure the ends of justice" are wide enough to cover cases such as these viz. to grant an extension of time to deposit an amount or to restore appeals dismissed on account of the failure to comply with the orders of pre -deposit. Appeal dismissed for non-compliance of deposit (later complied with) restored.


Rajender Singh Vs UoI (Dated: May 29, 2015) Service Tax - To arrest first and then proceed with the rest is despicable - No show cause notice issued before arrest; no complaint filed after arrest; department has no idea when the investigation process will be completed. Further detention of the petitioner, in such facts and circumstances, amounts to taking away his liberty in the absence of any complaint having been filed against him. Bail ordered.


2015-TIOL-1373-HC-KAR-IT

DIT Vs Envisions (Dated: March 13, 2015) Whether when the objects of the trust are charitable in character and the purposes mentioned by the assessee are for achieving the objects of the trust, merely because of non-furnishing of the details, as to how the said amount is proposed to be spent in future, the assessee can be denied the benefit u/s 11 - NO: HC Also see analysis of the Order


Mundra Ports And Special Economic Zone Ltd Vs CCE & C (Dated: April 29, 2015)

Service Tax – CENVAT Credit on Steel and Cement used for construction of Jetty used for providing Port Service / Cargo Handling service – Whether the Tribunal was right in denying the benefit of CENVAT Credit.

Held: It is not disputed that jetty was constructed and input credit was claimed on cement and steel - The definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit - The appellant was entitled for input credit and the decision of the Division Bench of the Andhra Pradesh High Court in Sai Sahmita Storages (P) Limited - 2011-TIOL-863-HC-AP-CX which is squarely applies to the facts of the case. (para 7)

It cannot be held that the amendment made to Rule 2(k) of Cenvat Credit Rules 2004 which come into force on 7.7.2009 was clarificatory amendment as there is nothing to suggest in the Amending Act that amendment made in Explanation 2 was clarificatory in nature. Wherever the legislature wants to clarify the provision, it clearly mentions intention in the notification itself and seeks to clarify existing provision. Even, if the new provision is added then it will be new amendment and cannot be treated to be clarification of particular thing or goods and/or input and as such, the amendment could operate only prospectively. The view taken by the Tribunal is based on conjectures and surmises as the Larger Bench of the Tribunal used the expression that intention behind amendment was to clarify. The coverage under the input from where this intention has been gathered by the Tribunal has not been mentioned in the judgment. There is no material to support that there was any legislative intent to clarify any existing provision. (para 8)

Plea by revenue that construction of jetty was exempted and hence credit is not admissible - The argument though attractive cannot be accepted. The jetty is constructed by the appellant by purchasing iron, cement, grid etc. which are used in construction of jetty. The contractor has constructed jetty. There are two methods, one is that the appellant would have given entire contract to the contractor for making jetty by giving material on his end and then make the payment, the other method was that the appellant would have provided material to the contractor and labour contract would have been given. The appellant claims that he has provided cement, steel etc. for which he was entitled for input credit and, therefore, the appellant was entitled for input credit and it cannot be treated that since construction of jetty was exempted, the appellant would not be entitled for input credit. The view taken contrary by the Tribunal deserves to be set aside.



Ajay Kumar Gupta Vs CESTAT (Dated : April 29, 2015)

Service Tax – Amount collected as service tax, but not deposited - Whether penalty under Section 76 and 78 is attracted on the amount deposited under Section 73A(2).

Held: Once the appellant was not liable to pay Service Tax under the provisions of Section 68 since he was not providing taxable service at that point of time, the penalty imposable under Section 76 was rightly deleted by the Commissioner (Appeals) - Penalty under Section 78 also pertains to the penalty for suppressing of value of taxable services. The intention, thus, of the person, has to be for evading the service tax which would impose the liability of the penalty and the section further provides that there has to be fraud, collusion or wilful mis -statement or suppression of facts and contravention of the provisions of the Chapter or of the Rules with intent to evade payment of service tax. (para 10)

Once the service tax was not leviable under Section 68 at that point of time and the liability was only to deposit the tax under Section 73A(2), which has been done on after delay, but due to the service being not taxable at the relevant time when the invoices were raised, the case would not fall under the provisions of Section 78 for invoking of the penalty, as has been held by the Tribunal - The Tribunal was not justified, in the present facts and circumstances, to hold that there was a wilful suppression of facts, to bring it within the ambit of Section 78.(para 11)

Question of law answered in favour of assessee.



CST Vs M/s Tandus Flooring India Pvt Ltd (Dated : April 8, 2015)

Service Tax – Indian subsidiary providing marketing support services for the products manufactured outside India – Writ Petition filed by the Commissioner assailing the order of Authority for Advance Rulings holding that the place of provision is outside India and the service is not liable to tax.

Held: An order which has been passed on a concession given by the Commissioner cannot be challenged by the Commissioner himself. After considering the entire case on merits and deciding in favour of the respondent-Company, the questions raised were answered in favour of the assessee on merits and also on the basis of the concession given by the Commissioner that the case of the respondent- Company was covered by the Circular of the Department dated 24.02.2009. The Commissioner cannot be permitted to now turn around and challenge the said order which was passed by the Authority on the basis of his own statement. ( para 8)

Even on merits, what is being canvassed before this Court in the writ petition is something wh ich was not raised before the Authority. The Authority has considered the provisions of Rule 6A of the Rules of 1994, relating to Export of services and after holding that the respondent satisfies all the conditions laid down in clauses (a) to (f) of the subrule (1) of Rule 6A of the Rules of 1994, it proceeded to answer the questions in favour of the assessee. ( para 9)

The issue that the service is an intermediary service and therefore, place of provision of service is not outside India was not raised before the Authority. For deciding the said question, facts have to be examined as to whether the service being provided by the respondent-Company was intermediary service or not? Such factual aspect of the matter having not been raised before the Authority cannot, for the first time, be raised in the writ petition. A new ground cannot be taken in the writ petition, especially, when the same is a ground relatable to facts and not solely on a question

of law. In such view of the matter, on this ground also, the order needs no interference. ( para 11&12)



M/s Sundaram Industries Ltd Vs Department Of Central Excise ( Dated : April 21, 2015)

Service Tax – Accounting code – Service Tax wrongly deposited in another assessee's account due to entering incorrect assessee code while making e payment – Petitioner deposited the amount again with correct code - Admittedly, the petitioner has made the payment twice - Respondent department is directed to refund the said amount to the petitioner company within a period of two weeks.


M/s Thirumurugan Enterprises Vs ADDL CCE (Dated: April 17, 2015)

Service Tax – Demand of service tax confirmed in adjudication in spite of the assessee contemplating to approach Settlement Commission to settle the dispute.

Held : It is not in dispute that the petitioner admitting their tax liability, has also paid a sum of Rs.14,57,464/= towards service tax and Rs.9,70,000/= towards interest. Therefore the request made by them in their application dated 03.11.2014 to permit them to approach the Settlement Commissioner could have been considered by the respondent - The impugned order is set aside and the petitioner is given two weeks time to approach the Settlement Commission. (para 5 & 6)


Rohan And Rajdeep Infrastructure Pvt Ltd Vs CCE & ST ( Dated: April 29, 2015)

Service Tax - Appeal against order of Tribunal dismissing modification application for waiver of pre -deposit - Contention that in similar cases of another assessee, full waiver was granted by the Tribunal.

Held: The appellant is not similarly placed as in the other cases relied - In the present case, the appellant is collecting the amount on the basis of an agreement, inter se, in lieu of the costs incurred in the construction of the bus terminus and is also levying charges on various accounts on the buses which are entering the said terminus. The amounts which are being collected are prima facie on the basis of a contractual obligation whereas in the case which is being relied upon, there is a difference and the stay was granted on the ground that it was a statutory fees which was being collected - The Tribunal has rightly distinguished the case and secondly, the appellant is not alleged to be suffering from any undue hardship, as such - Plea that in similar circumstances, the interim benefit had been granted to another party, would not itself be a ground for review, as such - Question of law answered against the appellant. (para 10)


A V Joy@Joy Alukkas Vs CESTAT (Dated: February 27, 2015)

Service Tax - Writ Petition against the order of the Tribunal directing the Petitioner to deposit Rs 20 lakhs as pre-deposit.

Held: Pre-deposit ordered by Tribunal challenged in Writ Petition - Tribunal did not deal with the specific contention of the petitioner with regard to non-establishment of wilful representation/suppression - However, since the amount ordered as pre -deposit is only 33% of the demand, the direction of the Tribunal to pre-deposit Rs 20 needs no interference. (para 4,5)



CCE Vs M/s Joe Transport (Dated: April 23, 2015)

Service Tax - Penalty under Section 78 and Section 76 - Penalty under Section 78 is mandatory - There is no element of discretion as held by the Supreme Court in case of Dharamendra Textile Processors & Ors case and Rajasthan Spinning & Weaving Mills - Simultaneous penalty under Section 76 is also attracted as held by this High Court in case of Dhandayuthapani Canteen case - The Tribunal has come to an erroneous conclusion that once penalty is imposed under Section 76 of the Finance Act, 1994, there is no necessity for imposition of penalty under Section 78 of the Finance Act, 1994. The above view of the Tribunal runs contrary to the law laid down on the subject - The substantial questions of law are answered in favour of the appellant/Revenue and against the respondent/assessee (para 9&10)


ICICI Bank Ltd Vs UoI (Dated: April 20, 2015)

ST - Law enforcers cannot be permitted to do something which is not permissible within the four corners of law – Amount which is payable by a person can be said to be payable only after there is determination as provided u/s 72 or u/s 73 of the FA, 1994 - Without there being any adjudication, coercive steps cannot be taken for recovery of ST or penalty or interest: High Court [para 35, 39, 43, 46, 47, 49]



M/s Greatship (India) Ltd Vs CST (Dated: April 28, 2015)

ST – SOTG service - Supply of drilling rig along with its personnel to operate the same on charter hire basis – Notfn. 14/2010-ST cannot be said to be clarificatory in nature but it brings about substantive change in law – it widens the tax scope and amongst various other services also brings into the service tax net the services rendered to or by the installations, structures and vessels - present transaction is in the nature of providing services by the vessels of the appellant for the purpose of prospecting mineral oil and as such is a service consumed by the seabed of Continental Shelf of India and would come in the tax net only after 2010 Notification came into effect – Tribunal has erred in upholding tax demand – appeal allowed: High Court [para 8 to

45]



CCE Vs M/s PNB Metlife India Insurance Co Ltd (Dated: April 9, 2015)

Service Tax - Insurance service - CENVAT Credit of service tax paid on re -insurance service received - Revenue in appeal against the order of CESTAT allowing the credit.

Held: The order of the Tribunal does not require any interference. Rule 2(l) of the CENVAT Credit Rules 2004 provides that 'Input Service' means service used by a provider of taxable service for providing an 'Output Service'. The submission of the appellant that once the Insurance Policy is issued by the Insurer, the transaction comes to an end and as such the service provided would not come within the ambit of input service, is not worthy of acceptance. The re-insurance is taken by the Insurer immediately after the insurance policy is issued, as is required under Section 101A of the Insurance Act, 1938. Since re-insurance is a statutory obligation, and the same is co-terminus with the Insurance policy issued by the respondent, the stand taken by the Tribunal is correct. (para 6)

Service Tax is levied for certain service rendered and the provision of giving the CENVAT credit is so that there may not be double taxation. If a person has collected service tax, no doubt the same has to be deposited, but if in the process of the same transaction he has paid some service tax, which is necessary for its business, then he is entitled to the CENVAT credit to the extent of service tax which has been paid by it. In the present case, if the entire Service Tax which is collected by the Insurer, while selling its insurance policies, has to be deposited without being given the credit of the tax which is paid by it while procuring a policy of reinsurance as (mandatorily required in law), the same would be against the ethos of CENVAT credit policy, as the same would amount to double taxation, which is not permissible in law. (para 7)



Rajesh Mishra Vs CESTAT (Dated: April 10, 2015)

ST - Jt. Commissioner confirming service tax demand of Rs.38 ,02,498 /- along with penalties and interest - Commissioner(A) rejecting appeal - appeal before CESTAT - Tribunal directing petitioner to deposit amount of Rs . 25 lacs which the petitioner had collected from the service recipients and report compliance on 18.11.2014 - Petition before High Court.

Held: No financial hardships pleaded - Petitioner submitting that they had deposited some amount towards service tax, however the petitioner is not having receipts for the same - Even otherwise, it is for the petitioner to produce the evidence with respect to any payment towards the service tax - It was for him to keep records / receipts of payment of service tax paid, if any - when the petitioner is directed to deposit the balance amount of service tax to the extent of 25 lacs , which the petitioner had collected from the service recipients but did not deposit with the government treasury, it cannot be said that the impugned order passed by the Tribunal is in any way erroneous, which calls for the interference of the Court in exercise of powers under Article 226 - petitioner is also not in a position to make any statement what happened after 18.11.2014 and , therefore, it can be concluded that

appeal must have been dismissed for non compliance of the order of the pre-deposit - no substance in petition hence dismissed: High Court [ para 3.2, 3.3, 4, 5]


CCE Vs Nagammai Cotton Mills (P) Ltd (Dated: April 9, 2015)

Service Tax – Availment of CENVAT Credit for payment of service tax on Goods Transport Agency service – Revenue in appeal against the order of Tribunal – Held: Similar question has been considered by this Court in the case of Commissioner of Central Excise, Salem - Vs - M/ s.Cheran Spinners Ltd. 2013-TIOL-665-HC-MAD-ST and the issue has been answered against the Revenue and in favour of the Assessee - The cases on hand is squarely covered by the decision in Cheran Spinnner's case – No merit in revenue appeals. ( para 5)


M/s Dhariwal Industries Ltd Vs CCE, C & ST (Dated: February 26, 2015)

Central Excise/Customs/Service Tax - Appeal against order of Tribunal directing the appellant to deposit Rs 40 lakhs as pre-condition while remanding the matter to the Adjudicating Authority - Contention that the Tribunal has no such power under Section 35C and the order of Tribunal is arbitrary.

Held: Though in terms of the language of Section 35C, the power of the Tribunal of imposing certain conditions with regard to deposit may be there, while setting-aside and remanding the matter to the Adjudicating Authority, yet the same can be done only with valid reasons and in a judicious manner. There may be cases where the Tribunal may hold that on certain issues, the liability of the assessee to pay excise duty may be there, but not on all issues and thus, after giving reasons, the Tribunal may impose the condition of depositing certain amount, but, not as a routine course and without assigning reasons. There could be other circumstances, such as the assessee adopting dilatory tactics or not coming forward in adducing evidence, for which reason also the Tribunal may impose any such condition of deposit while remanding the matter, so that justice is done, but not in a case like the one in hand, where the Adjudicating Authority has not followed the procedure or given sufficient opportunity to the assessee, because of which the order is set-aside and then a condition of deposit is imposed. (para 20)

It is clear that though for setting-aside the order passed by the Adjudicating Authority and remanding the case for fresh decision, sufficient reasons have been given, but no reason, whatsoever, has been given for imposing a precondition of deposit of Rs.40.00 lakhs by the appellant. There is even no justification for quantifying the amount Rs.40 lakhs to be deposited by the appellant. ( para 21)

Order of pre-deposit of Rs 40 lakhs is set aside and the remaining findings of the Tribunal not interfered with.



M/s A M Motors Vs UoI (Dated: March 27, 2015)

Service Tax – Compliance with mandatory pre-deposit of 7.5% of the demand - Inasmuch as the lis commenced prior to the introduction of the amendment of 2014, the petitioner would not be required to deposit an amount of 7.5% as required, pursuant to the 2014 amendment to the Act. He would, therefore, have an efficacious alternate remedy before the Appellate Tribunal, where he can file the appeal, together with an application for waiver of pre-deposit and stay of recovery of the amounts confirmed against him. ( para 4)

2015-TIOL-1068-HC-PATNA-ST

M/s Multi Engineering And Scientific Corporation Vs Bihar State Electricity Board

Whether liability to pay service tax arising in the course of provision of service and to provide for its collection in the contract which is entered with the person who is recipient of the service, always lies upon the service provider - YES: HC

Whether provisions of Section 64A of Sale of Goods Act which is specifically confined to the payment of tax in respect to any taxable events in relation to goods only, can be applied to provision of any service and the liability for tax thereupon - NO: HC

Whether it is open for an assessee being a service provider, to claim any refund from the service recipient in absence of any agreement to the contrary or any provision in the Finance Act, 1994 with respect to the same - NO: HC


M/s Sree Annapoorna Hospitality Services Pvt Ltd Vs CC, CE & ST (Dated: April 1, 2015)

Service Tax - Outdoor catering service - Denial of benefit of exemption under Notification No 12/2003 ST - Whether the petitioner is eligible for the benefit of Notification No.12/2003-ST and whether the extended period of time under proviso to Section 73(1) of the Finance Act, 1994 is invokable to the petitioner's case are disputed questions of fact and the same could be raised before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), as the petitioner has remedy of filing appeal against the order-in-original. There is no violation of principles of natural justice in passing the order impugned and the procedures stipulated in Finance Act, 1994 has been thoroughly followed. Thus, the petitioner is bound to pay 7.5% of the total service tax demand of Rs.63 ,79,561 /- at the time of filing of appeal before the CESTAT . - In terms of the provisions of the Act, payment of 7.5% of the total tax demand is mandatory and that cannot be reduced by this Court and further, the petitioner could raise all the points raised before this Court before the CESTAT to substantiate its case. ( para 5)


M/s Dream Castle Vs CCE (Dated: March 25, 2015)

Service Tax - Valuation - Appellant is a proprietary concern engaged in the business of real estate consultancy and agency, whose proprietor is a partner in RJK Investments, a firm which entered into an agreement with M/s.DLF Home Development for arranging the purchase of a large tract of land in Tamilnadu - Appellant was authorized to collect the monies from DLF to disburse the same to the land owners, the agents or RJK Investments - Revenue viewed that the entire amount received by the petitioner, even though it was disbursed to third parties and the petitioner has acted as a mere conduit for payment of funds to the identified parties, is liable to

service tax - demands confirmed and agitated herein in Wirt petition.

Held : The adjudicating authority, after taking note of the submissions of the petitioner, considering the commission received, and after verifying the invoices, concluded that DLF is the customer and the invoices raised by the noticee also confirm that the noticee received commission from the nominees of DLF - Since a finding of fact has been rendered, merely because the petitioner will have to shell out more than 7.5 lakhs, it cannot be a ground for interference under Article 226 of the Constitution - decision taken by the respondent in the instant cannot be said to be against the provision of law or an arbitrary action without sanction of law - Apex Court ruling to applied in rarest of rare cases - no merit in the contention of the petitioner - It is open to the petitioner to agitate the appeal remedy within time frame under the provisions of the Act excluding the period during which the writ petition was pending. [Para 7, 8, 9]


M/s Inditrade Derivatives And Commodities Ltd Vs UoI (Dated: February 25, 2015)

Service Tax - Audit - petitioners challenge Rule 5A of the Service Tax Rules, 1994 as ultra wires to the Finance Act, 1994, as amended, on the ground that the audit that is contemplated under the said Rules is contrary to the provisions of Section 72A ibidem; and in terms of the Delhi and Calcutta HC rulings on the matter.

Held : Apex court, in Association of Unified Teleservices clarified that the CAG has a duty to examine and satisfy itself that all the Rules and procedures, in respect of Telecom Service Providers in revenue sharing contracts with the State, are being met - clear from the ruling that, although in the context of cases involving natural resources, a right was re cognized in the CAG to audit the accounts of private persons who were obliged to make payments to the Central Government pursuant to contracts entered into with the Central Government - No ground to stay the operation of Rule 5A of the Service Tax Rules, for the time being - writ petitions admitted for the limited purpose of examining the issue of validity of Rule 5A of the Service Tax Rules and the interim order dated 19.1.2015, as extended on 29.1.2015, stands vacated [Para 1]


M/s Keltron IT Business Group Vs UoI (Dated: March 20, 2015)

Service Tax - CENVAT credit - petitioner engaged in the business of manufacturing and trading of electronic goods, and availed ineligible credit on input services amounting to Rs.2.8 lakhs; reversed on being pointed out - subsequently, demand was raised proposing recovery of credit under Rule 6 of CCR 2004 for not maintaining separate accounts; confirmed in adjudication and agitated herein in Writ Petition.

Held : Appellate remedy available for order passed by second respondent - only point that arises for consideration is whether the petitioner would have to deposit the amount of 7.5% of the tax confirmed against him, as a condition for pursuing the appellate remedy before the Tribunal - Division Bench of the High Court of Telengana & Andhra Pradesh in a recent interim order dated 19.02.2015 in WP No.3393/2015 = 2015-TIOL-511-HC-AP-CX has taken a prima facie view that, in as much as the lis in question had commenced prior to the introduction of the amendment to the Finance Act, 1994, with effect from August 2014, the petitioner's right of appeal as per the erstwhile provisions of law would not be affected by the amendment - view consistent with the settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit and, further, that the right of appeal that is vested is to be governed by the law prevailing at the date of institution of the suit or proceeding, and not by

the law that prevails at the date of its decision or at the date of filing of the appeal.

In the instant case, the lis commenced in 2013, hence appellant would not be required to make deposit and he would have an efficacious alternate remedy before the Tribunal where he can file an appeal, together with an application for waiver of pre -deposit and stay of recovery of the amounts confirmed - At the time of filing the appeal, he will not be required to make any payment as a pre -condition for the hearing of the waiver application by the Tribunal - petitioner relegated to the alternate remedy available under the Finance Act, 1994, as amended, of approaching the Appellate Tribunal by way of an appeal against the impugned order and the appeal to be f iled by the petitioner would be governed by the statutory provisions, as they stood prior to the amendment introduced with effect from 16.08.2014 - if the petitioner prefers a duly constituted appeal under the provisions of the Finance Act, 1994, as they stood prior to 16.08.2014, then the Appellate Tribunal shall number the Appeal, and consider the application filed by the petitioner for waiver of pre-deposit and stay of recovery of the amounts confirmed on merits, and thereafter, proceed to hear the appeal itself in due course. [Para 4]


Greater Noida Industrial Development Authority Vs CC & CE (Dated: April 10, 2015)

ST- Renting of Immovable property - If a sovereign/public authority provides a service which is not in the nature of a statutory activity and the same is undertaken for a consideration (not a statutory fee), then in such cases, service tax would be leviable as long as the activity undertaken falls within the scope of a taxable service as defined: High Court [para 34]


2015-TIOL-985-HC-RAJ-ST

Bansal Classes Vs CCE & ST (Dated: March 30, 2015)

ST - Assessee is essentially providing commercial training and coaching services to students - It is not permitted to confer educational degrees - In celebrations organized by assessee during academic sessions to encourage existing students, catering, photography and tents are used by appellant and these celebrations are held only when students pass commercial training or coaching classes - ST was paid under output service of commercial training or coaching - Once students pass their coaching classes, activities of catering, photography and tent services cannot be said to have been used to provide output service - Assessee maintain and repair its motor vehicle during course of business and there is no material to show that maintenance and repairs have any nexus to commercial training or coaching - Travelling expenses incurred by assessee for business tours cannot be related to provision for commercial training or coaching - Appeal has no merit and is, accordingly, dismissed: HC


Gayatri Land Lossers Majoor Sahakari Mandli Ltd Vs UoI (Dated: April 1, 2015)

ST - Petitioner challenged impugned order passed by Tribunal - Tribunal rejected

delay condonation application by observing that petitioner - original appellant has not given any justifiable reason for filing appeal belatedly - Considering the fact that petitioner is a Society of Members and as such, there do not appear to be any mala fide intention in not filing the appeal within period of limitation and/or filing the appeal belatedly - Impugned order passed by Tribunal is quashed and set aside by imposing cost of Rs.20,000/-, which the petitioner has already deposited with the Regis try of this Court - Tribunal to decide and dispose of appeal in accordance with law without raising the issue with respect to limitation - Registry is directed to pay/return the amount of Rs.20,000/- - Application is allowed: HC [Para 5, 6, 7, 8]


Delhi Transport Corporation Vs CST (Dated: April 17, 2015)

ST - Service tax burden can be transferred by contractual arrangement to the other party but, on account of such contractual arrangement, the assessee cannot ask the Revenue to recover the tax dues from a third party or wait for discharge of the liability by the assessee till it has recovered the amount from its contractors - Appeal rejected but penalty u/s 78 of FA, 1994 set aside as it is not the case of the Revenue that service tax liability was avoided by the appellant with intent to defraud: High Court [para 20, 22, 23, 28, 31, 32]


Chaque Jour Outsourcing Solutions Pvt Ltd Vs CST (Dated: April 7, 2015)

ST - appellant provides business auxiliary services to its clients on principal to principal basis - SCN issued proposing the inclusion of the reimbursement expenses as the value of the taxable services - demand confirmed for Rs.14,04,69,188 /- with penalty, interest - Tribunal directing appellant to make deposit of 50% of adjudged service tax - appeal to High Court.

Held: In the case of Intercontinental Consultants - 2012-TIOL-966-HC-DEL-ST High Court has held that rule 5 (1) of Service Tax (Determination of Value) Rules, 2006 which sought to include expenditure or costs incurred by the service provider in the course of providing taxable services in the value for the purpose of charging service tax is contrary to Section 67 of the Finance Act, 1994 - This judgment was delivered on 30.11.2012 and the Order in Original was made on 10.10.2012 - Prima facie indicates that the adjudicating authority premised the demand on the operation and validity of Rule 5 (1) - Given these circumstances, the order of the CESTAT imposing a substantial burden as a condition for hearing of the appeal before it, cannot be sustained - order to the extent it directs deposit of 50% of the impugned demand is consequentially set aside & CESTAT is directed to hear the appeal on merits - Appeal allowed in above terms: High Court [ para 6]


M/s Delhi Airport Metro Pvt Ltd Vs CST (Dated: March 13, 2015)

ST - Works Contract Service - Petitioner has challenged a SCN dated 20.7.2012 and the order dated 12.12.2014 passed by the Commissioner, Central Excise in the matter - petitioner has already rightly availed the alternate remedy under the Act by replying to the SCN - There is no reason for entertaining the writ petition especially when the petitioner has already chosen to reply to the SCN in the first instance and had accepted the jurisdiction of the authorities at that point of time - Petitioner has an alternate remedy of filing an appeal against the order of the Commissioner under Section 35B of the CEA, 1994 before the Tribunal - case before us is not a pure question of law - Questions of fa ct would also arise after an analysis of the material furnished with the returns - no views expressed on the merits of the matter including

as to whether the provisions of Section 73 of the Finance Act can be availed of by the respondent or not – Petition dismissed: High Court [para 2, 17, 18, 19]


CST Vs Citicorp Finance (India) Ltd (Dated: February 27, 2015)

ST - Appeal relating to the rebate claim (Service Tax) is maintainable before the CESTAT and the CESTAT has jurisdiction to entertain and try it – High Court decision in Ambe International - 2015- TIOL -577-HC-MUM-ST on identical issue followed – Appeal allowed: High Court [ para 6, 7]


CST Vs Vodafone Essar South Ltd (Dated: October 30, 2014)

Service Tax - Jurisdiction of High Court - Since the issue involved is whether the assessee is entitled to the benefit of Notification issued under Section 11C read with Section 83 of the Finance Act, 1994, appeal lies to Supreme Court under Section 35L - Revenue appeal dismissed.


Secretary To Government Vs UoI (Dated: March 31, 2015)

Service Tax - Renting of Immovable Property service - Writ Petition against the order confirming service tax against the Petitioner, who is a State Government department - Demand challenged on various grounds like only States have the power to levy tax under Entry 35 read with Entry 18 of List II of the Constitution of India and State Government is not a Person.

Held: The entries in List II do not deal specifically with levy of a tax on renting of immovable property services. It is not in dispute that the legislative sanction for the levy of a service tax on renting of immovable property services is traceable to Entry 97 of List I of the Constitution of India. That being so, and there being no specific entry dealing with the subject of service tax in any of the other lists in the 7th Schedule to the Constitution of India, the competence of the Parliament to legislate in respect of service tax on renting of immovable property services cannot be called in question. (para 4)

As regards the contention of the petitioners that the State, as a body, will not come under the coverage of the Finance Act, 1994, as amended, as per the specific provisions of Section 65(B)(37) of the Finance Act,1994, as amended, the word "person" is defined as including, inter alia, "Government". Thus, as far as the applicability of the Finance Act, 1994, as amended is concerned, it would apply even in respect of services rendered by a State Government, unless the services fall under the negative list of services under the Statute. No ground to infer that, the respondents were acting under any jurisdictional error in confirming a demand of service tax on the petitioner in respect of the services rendered by the petitioner. It is open for the Petitioner to claim before the CESTAT if they are covered under the negative list - Petitioner to file appeal before the CESTAT within one month. (para 5 & 6)



CST Vs Vijay Television (P) Ltd (Dated: March 19, 2015)

Service Tax - Broadcasting service - Revenue in appeal against the order of Tribunal setting aside the demand beyond normal period and holding that there was no suppression of facts.



M/s Life Cell International (P) Ltd Vs UoI (Dated: March 27, 2015)

Service Tax – Preservation of Stem Cells in Banks – Whether amending Notification 4/2014 ST dated 17.02.2014 extending the exemption by insertion of Sl No 2A in Notification No 25/2012 ST is clarificatory and has retrospective effect.

Held: Amendatory statutes, like original statutes, will not be given retroactive construction, unless the language clearly makes such construction necessary. The amendment will usually take effect only from the date of its enactment and will have no application to prior transactions, in the absence of an expressed intent or an intent clearly implied to the contrary' and that where a statutory provision is in its nature clarificatory, it will be presumed to be retrospective unless the contrary intention is clearly indicated by the Legislature, the reason being that its underlying purpose of explaining or clarifying the existing law will be effectively served only by giving it such a retrospective construction. (para 22)

The intention of the legislature is clear that bringing the services provided by cord blood banks by way of preservation of stem cells under the exemption Notification in order to give exemption of service tax, however, it has not been specifically mentioned that the said amendment should be with effect from the date of exemption Notification. i.e. 20.6.2012, wherein, originally, Entry No.2 has been inserted, giving exemption towards healthcare services by clinical establishment, an authorised medical practitio ner or para-medics. Therefore, by virtue of such amendment, it should be construed that the establishments which provides the above said services will get exemption of service tax with effect from the date of amendment, i.e. 17.2.2014 only and they cannot claim it with retrospective effect.(para 24)

The amendment cannot be viewed as a clarificatory one and therefore, the Court is unable to countenance the argument advanced by the Petitioner that the so-called amendment is only a clarificatory nature.(para 27)



M/s Premier Garment Processing Vs UoI (Dated: March 18, 2015)

Service Tax - Appeal filed before the Commissioner (Appeals) beyond the condonable period dismissed - Writ Petition seeking to quash the Order-in-Original.

Held: Under Section 85(3) of the Finance Act, the appeal to Commissioner (Appeals) was to be filed within three months from the date of communication of the order and as per the proviso to Section 85(3), a further period of three months could be granted where sufficient cause was shown. The Commissioner (Appeals) has no power to condone abnormal delay - Petition dismissed.


CST Vs M/s Aircel Cellular Ltd (Dated: March 26, 2015)

Service Tax - CENVAT Credit - Admissibility of CENVAT Credit on Access Deficit Charges paid to BSNL by the respondent, who is a telecom service provider - Revenue in appeal against the order of Tribunal allowing the credit.

Held : The finding of fact by the Tribunal that the facility provided by BSNL to the assessee, who, in turn, provide such services to their subscribers, is nothing but a telecom service is justified. The Department has not produced any material to contradict this finding of fact. (para 8)

A plain reading of Rule 2(l) of the Cenvat Credit Rules, 2004 makes it clear that the assessee in this case is the user of the service provided by BSNL and that service is used for providing output service to the customers of the assessee. Therefore, the definition squarely applies to the facts of the present case. Since the assessee has satisfied the requirement of Rule 2(l) of the Cenvat Credit Rules, 2004, the Department was not justified in taking a different view contrary to the said provision. (para 9)


Vodafone Cellular Ltd Vs UoI (Dated: March 19, 2015)

Service Tax - Adjudication - Principles of natural justice - Personal hearing - Assessee was given three dates for personal hearing in a communication and ex parte order passed in spite of request for adjournment of hearing from the assessee - Principles of natural justice violated - Impugned order is set aside and the matter is remanded on condition of deposit of 2.5% of the tax demanded ( para 6)


M/s Kumar Builders Vs CESTAT (Dated: March 4, 2015)

Background: ST - Total service tax demand of Rs.74.88 lakhs confirmed against appellant along with penalty and interest on the ground that the appellant was providing services under four different heads viz. Cleaning service, Management, maintenance or repair service, Construction of complex service and Commercial or Industrial construction service - Tribunal did not accept the reasoning of the CCE regarding the demand on account of the construction of the complex in respect of the dwelling unit executed at the instance of the Northern Railways for its employees (demand of Rs.21.49 lakhs) - however, regarding the cleaning service, management and maintenance, the contention for stay was declined and accordingly Tribunal directed the appellant to deposit an amount of Rs.50 lakhs - pursuant thereto appellant filed application submitting that in similar circumstances, the Eastern Bench of the Tribunal had allowed the stay on similar grounds that the process of removing the fly ash by mechanical means would not amount to cleaning service in the case of Purba Medinipur Zilla Parishad and, therefore, the ST demand of Rs.29,60,791/- was not leviable and a prayer was made for reducing the amount of pre -deposit - Tribunal dismissed the application on the ground that the application, in substance, is seeking review of the order dated 06.05.2013 and there is no power of review or rectification of an interlocutory order - since appellant failed to comply with order of pre-deposit, appeal dismissed - Appeal filed before High Court submitting that if the above amount is deleted along with penalty the demand would reduce by Rs.60 lakhs and, therefore,

the pre -deposit ordered of Rs.50 lakhs would be on the higher side.

Held: Keeping in view the fact that a Co-ordinate Bench of the Tribunal has prima facie held, in similar circumstances, that the mechanical process of removing fly ash does not fall within the ambit of service tax, the appellant is not liable to deposit Rs.29,60,791/- on the said head along with the penalty which has been levied - Court is, therefore, of the opinion that the appeal was not liable to be dismissed on account of non-compliance of the pre -deposit order - against the heading of 'management, maintenance or repair' and the penalty element, appellant has informed that they have already paid the amount - Tribunal shall, therefore, hear the appeal without asking the appellant to pre -deposit the amount against the heading of cleaning service and the equivalent penalty levied on it - Stay order is set aside - Appeal allowed: High Court [para 9, 10, 11]


CCE & ST Vs M/s Jacobs Engineering U K Ltd (Dated: March 12, 2015)

Service Tax – Consultancy services provided by the respondent company situated in United Kingdom and having no branch in India – Appeal by revenue against the order of Tribunal setting aside the demand of service tax on the respondent company by relying on the decision of Tribunal in Philcorp PTE Ltd Vs Commissioner of Central Excise, Goa - 2007-TIOL-439-CESTAT -MUM – No reason to differ with the order passed by the Tribunal as the service provider i.e., the respondent company was located outside India and did not have any business operations or office within the territory of India - No error in the order of Tribunal – Revenue appeal dismissed. (para 4)


M/s Madura Coats Pvt Ltd Vs UoI (Dated: March 11, 2015)

Service Tax – Refund of Service Tax – Commissioner (Appeals) allowed refund of Service Tax and the stay application filed by revenue against the order of Commissioner (Appeals) was dismissed by the Tribunal - The respondent was fully aware that it was liable to refund the service tax deposited by the appellant in terms of the order passed by the Commissioner (Appeals) and for that reason it had filed the stay application and once the stay application had been rejected, the order ought to have been implemented, as it is a fact that the order rejecting the stay application had become final – Respondents directed to implement the order of Commissioner (Appeals) and refund the amount.


CC, CE & ST Vs Hyundai Motor India Engineering (P) Ltd (Dated: March 4, 2015)

Service Tax – Export of services - Refund of CENVAT credit under Rule 5 of the CENVAT Credit Rules, 2004 – Relevant date for filing the refund claim – Appeal by revenue against the order of Tribunal holding that the relevant date is the date of receipt of payment.

Held: No error in the order of Tribunal - The Tribunal has held that the relevant date would be the date of receipt of consideration as held in 2011-TIOL-166-CESTAT-MUM and, when such decision has not been appealed against nor it has been reversed or

overruled by any superior forum, the said judgment is binding. ( para 3)

Admissibility of CENVAT Credit on construction service - The CESTAT relied on the decision in the case of Infosys Ltd. v. C.S.T., Bangalore 2014-TIOL-409-CESTAT-BANG. wherein the definition of 'input services' has been considered and admissibility of CENVAT credit in respect of various services and the rationale to take such a view has been discussed - Following the decision of the Tribunal in the case of Infosys Ltd. the CESTAT remanded the matter to the original adjudicating authority, and it is not argued that the aforesaid decision is appealed against or reversed – No infirmity or illegality in the judgment of the Tribunal.



M/s Star Enterprises Vs Joint Commissioner (Dated: February 20, 2015)

Service Tax - Appeal dismissed by the Commissioner (Appeals) as the same was filed beyond condonable period - Writ petition filed seeking to set aside the original order.

Held: Contention that attempt to prefer appeal unsuccessfully before the appellate authority, does not preclude the petitioner from maintaining the writ as at present his client is remediless is not legally permissible - After availing the remedy unsuccessfully before another Court the High Court cannot accept the challenge to the self same order, which has reached its finality under writ jurisdiction or not.

2015-TIOL-718-HC-PATNA-ST

Advantage Media Consultants Pvt Ltd Vs UoI (Dated: February 5, 2015)

ST - Advertising Service - Petitioner submits that issue has already been settled by different Benches of Tribunal and the same has not been challenged before the higher forum - however, repeated show cause notices issued to petitioner.

Held: Any such decision of Tribunal would be binding upon the authorities insofar as point of law is settled therein subject to the right to challenge such decision before higher forum - it is appropriate that the issue of fact and law be raised more appropriately by petitioners before authorities by filing their reply to the SCN - Petition disposed of: High Court [ para 4, 5]


M/s Muthoot Finance Ltd Vs UoI (Dated: March 4, 2015)

Service Tax – Demand of service tax on the Petitioner, who is an agent of M/s Paul Merchant Ltd confirmed by the Commissioner despite the Petitioner pleading that the issue is covered by the majority decision of the Tribunal in Paul Merchant Ltd case - The respondent Commissioner has not pointed to any distinguishing feature in the case of the petitioner, as would distinguish it from the case decided by the Larger Bench of the Tribunal, the Adjudicating Authority is directed to reconsider the matter in the light of the observations made in this judgment – Impugned order is set aside and matter is remanded.


M/s Kunj Power Project Pvt Ltd Vs CC & CE (Dated: March 10, 2015)

ST – S.14 of CEA , 1944 - Mere order of summoning for giving evidence or to participate in enquiry issued by CE authorities u/s 14 of CEA , 1944 is not to be interfered only on the ground that petitioner has submitted reply to earlier letters and therefore need not appear in person before the authorities concerned - Section 14 nowhere contemplates that a person, when required to furnish certain documents or information, if has done so, he cannot be summoned in person for giving his own evidence - When there is a specific power contained in the Act and there is nothing on record to show that it has been exercised with male fide etc., no interference at this stage is called for – Writ Petition lacks merit, hence dismissed: High Court [ para 10, 13]


M/s Indokem Ltd Vs UoI (Dated: March 4, 2015)

VCES , 2013 - Designated authority undertook the task of bifurcating or computing the liability by showing some disparity or difference in the figures of the ST-3 returns and the declaration made – there is no provision which enables sustainment of this exercise – Order quashed and set aside – Designated authority to deal with declaration afresh: High Court [ para 9, 10]



M/s Muthoot Finance Ltd Vs UoI (Dated: March 2, 2015)

Service Tax – Amendment made in 2014 prescribing statutory pre -deposit for filing appeals in Indirect Tax cases - Settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit and, further, that the right of appeal that is vested is to be governed by the law prevailing at the date of institution of the suit or proceeding, and not by the law that prevails at the date of its decision or at the date of filing of the appeal. ( para 4)

The petitioner, in whose case also the lis commenced in 2012, would not be required to deposit the amount of 7.5%, as required pursuant to the 2014 amendment, and in that respect, he would have an efficacious alternate remedy before the Tribunal where he can file an appeal, together with an application for waiver of pre-deposit and stay of recovery of the amounts confirmed against him by the impugned order. At the time of filing the appeal, he will not be required to make any payment as a pre-condition for the hearing of the waiver application by the Tribunal. ( para 4)



M/s V Sathyamoorthy And Co Vs CESTAT (Dated: February 26, 2015)

Service Tax – Appeal against the ex parte order passed by the Tribunal directing pre-deposit - Impugned order was passed on the ground that in spite of adjournment, there is no representation for the appellant and that the appellant is adopting dilatory tactics in not appearing, which is an abuse of process of law and, therefore, no leniency should be given - However, it appears from the records that initially the

appellant himself had submitted a request letter and for next hearing, the counsel engaged by the appellant had submitted a letter seeking adjournment on the ground that he is out on a pilgrimage - The finding that there was abuse of process of law on account of the counsel seeking adjournment, that too for the first time after being engaged, appears to be too harsh. It is evident from proviso to Section 35-C of the Central Excise Act, that even in respect of appeals, the Tribunal is entitled to grant adjournment not exceeding three times, to a particular party – Finding of the Tribunal relating to abuse of process of law, warrants leniency and the matter deserves to be relooked into - Impugned order is set aside and the matter is remanded to the Tribunal for reconsideration of the application filed for waiver of pre-deposit (para 9 & 10).


Abhijeet Trading Co Vs CCE (Dated: March 9, 2015)

ST - Manpower supply service - Tribunal imposing condition of 50% deposit of demand confirmed as pre-deposit - as appellant has failed to comply, appeal dismissed - appeal to High Court. Held: If services have been classified under particular category, then either some prima facie distinguishing features and factors should have been pointed out by the Tribunal or it should have rendered an independent conclusion on the basis of the facts as placed before the Tribunal - This exercise has not been undertaken at all - Even at the prima facie stage, if some distinction has to be made from the earlier decisions and orders then that distinction should have been briefly indicated - In the circumstances, imposing of condition of 50% deposit of the demand confirmed in the O-in-O would amount to deviating from the earlier orders and without any distinguishing features noted in the Tribunal's order - Discretion should have been exercised reasonably and not arbitrarily - Tribunal's order therefore, requires interference - given the facts and circumstances, Tribunal should have imposed a condition of deposit of Rs.15 lakhs (25% of duty demand) and which would have sufficiently balanced the rights and equities - order of Tribunal set aside with condition as substituted above: High Court [ para 6, 7]


CST Vs Ambe International (Dated: February 12, 2015)

ST - Rebate claim-appeal against Order passed by Commissioner (A) lies before the CESTAT - Tribunal has clearly missed and omitted from consideration subsection (2A) of section 86 of FA,1994-Revenue appeal allowed: High Court



Siddharth Suryanarayan Vs UoI (Dated: February 26, 2015)

Service Tax - Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Declaration, declaring that Notification No.25/2012 dated 20.06.2012 (Entry 16) in so far as it provides for an exemption in respect of services provided by a performing artist in folk or classical art forms of music, dance or theatre from service tax leviable under Section 66-B of the Finance Act 1994 as discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution of India in the absence of the same benefit being extended to other performing artist namely film actor.

Held: Taxation statutes have to be dealt with on a different plank with due deference to the legislative intent. Much latitude is allowed to the State for classification upon a reasonable basis, and what is reasonable is a question of practical details and variety of factors which the Court would be reluctant and ill-equipped to investigate. (para 9)

The two categories are clearly different and distinguishable and cannot be treated at parity - The mere fact that there is an element of drama or acting both in case of theatre and in case of films does not mean that the two activities are identical, taking into consideration the circumstances in which films are made and theatre is performed – Petition is misconceived and is dismissed. (para 10)



CCE & ST Vs M/s Credit Suisse Services (I) Pvt Ltd (Dated: February 23, 2015)

ST - Refund - Notification 9/2009-ST as amended by 15/2009-ST - So long as there is an issue as to whether the services consumed within the SEZ are exempt or taxable, then, the same would be having a relation to the rate of duty - Explanation (c) to section 35E is an aid or guide with the assistance of which we can decide as to whether any question has a relation to the rate of duty of excise as appearing in section 35- G( 1) of the Central Excise Act, 1944 - Revenue shall have to take recourse to the relevant provisions of law so as to enable them to impugn and challenge the orders of the Tribunal - Appeals not maintainable: High Court [para 16, 18, 20, 21, 22]



CST Vs M/s Maersk India Pvt Ltd (Dated: February 24, 2015)

ST - Respondent rendering taxable service as Steamer Agent on Indian shores to their overseas clients - Clients who were serviced were residents abroad, and as such the services rendered to them are export services - such service to foreign clients paying consideration in convertible foreign exchange would not visit respondent with liability to pay service tax - Revenue appeal dismissed: High Court [ para 8 to 15]



TCS E-Serve Ltd Vs UoI (Dated : February 23, 2015)

ST - Tribunal holding that services received by petitioner assessee cannot be held chargeable to ST - Refund claimed on the strength of this order was rejected by Revenue on the ground that the Department has not accepted the Tribunal's order and has filed an appeal against the said order in the High Court.

Held: Although the CE appeal has been admitted, High Court has not stayed the order passed by the Tribunal - In the circumstances, Revenue was not justified in not processing the application in accordance with law - There is no legal provision which is brought to notice enabling the Revenue to keep refund applications pending merely

because an order passed by the Tribunal has been challenged by the Revenue in further appeals - In the teeth of the clear language of law and there being no interim stay in favour of the Revenue, no justification found for keeping the refund application either pending or rejecting it with the aforesaid endorsement - Respondent directed to consider the refund application and dispose of the same in accordance with law as expeditiously as possible - Three months' time granted to the Revenue for the said purpose - Petition disposed of: High Court [para 5, 6, 7]


M/s Rotana Inns Pvt (Hotel Raj Residency) Vs UoI (Dated : February 13, 2015)

Service Tax / Sales Tax - Tax on bar hotels - Petitioner paid turnover tax on 70% of the turnover and paid service tax on 30% of the turnover - Filed refund claim with service tax department consequent to the decision of Kerala High Court in case of Kerala Bar Hotel Association and Others holding levy of service tax as illegal - Sales Tax assessed by the department by including 30% turnover also - On appeal, Dy Commissioner, Commercial Tax (Appeals) ordered pre-deposit of 40% of tax demanded as a pre-condition - Petitioner challenges the same.

Held : The Assistant Commissioner of Service Tax, before whom refund application of the petitioner is pending consideration, shall consider the same and pass orders thereon on or before 20.03.2015, after hearing the petitioner - The petitioner is permitted to comply with the condition of deposit of 40% of the balance tax and interest demanded for the assessment year 2011-2012, as directed in the assessment order, by paying the said amount in two equal and successive monthly instalments commencing from 30.03.2015. ( para 3)


Riya Travel And Tours (I) Pvt Ltd Vs CST (Dated: February 16, 2015)

ST - CESTAT observing that it is a settled position in law that it is not the wordings of the agreement that is relevant but the substance of the agreement - that agreement entered into by appellant indicates that it is for the promotion of the software of the CRS ( Computerized Reservation System) companies and not for any other purpose and, therefore, prima facie services merit classification under BAS - CESTAT ordering Pre deposit of Rs.5.8 crores being the tax payable for the normal period - appellant before High Court.


CCE Vs CESTAT (Dated: February 6, 2015)

Service Tax - Condonation of delay - Revenue in appeal against order of Tribunal declining to condone delay of 29 days

Held: From a perusal of the documents available on record, it is clear that the delay of 29 days which has occurred is purely administrative in nature, as has been stated by the Department before the Tribunal - The finding of the Tribunal that the appellant has not shown sufficient cause, which prevented them in filing the appeal, does not merit acceptance in view of the decision of the Supreme Court in Collector, Land Acquisition - Vs- Mst . Katiji & Ors. 2002-TIOL-444-SC-LMT – Appeal allowed ( para 6).


Maharashtra State Electricity Distribution Company Ltd Vs CCE (Dated: February 12, 2015)

ST - Condonation of delay - Govt. departments are working with depleted staff strength - Finance and Accounts Manager is a crucial post and its vacancy a vital element and factor - It is not as if the reason was found to be false or the Appellant was totally negligent and callous or has ignored legal proceedings - In such circumstances, by imposition of costs, the discretion could have been exercised by the Tribunal in favour of a statutory entity - Delay of 579 days in filing appeals before CESTAT condoned upon imposition of costs of Rs.25,000 /- - upon production of proof of payment of cost, CESTAT to restore appeals and stay applications to the file: High Court [ para 4, 5, 6]



Khivraj Motors Pvt Ltd Vs UoI (Dated: January 28, 2015)

Service Tax – Challenge to CBEC Circular No 98/1/2008-ST dated 04.01.2008 – Revenue submits the portion of Show Cause Notice relating to the impugned Circular may be treated as withdrawn.

Held: The circular has been conceded to have no application to the case of the petitioners – In view of the same, there is no point in going into the merits of the circular, i.e., whether it is valid or invalid, violative of the provisions of the Act or the Constitution, since that would be an academic exercise – As there is no threat to the petitioners, except a perceived apprehension, the question of validity of the Circular is left open.


E I D Parry India Ltd Vs CESTAT (Dated: January 27, 2015)

Service Tax – Refund of Service Tax paid on Goods Transport Operator service between 1997 to 1999 – Appeal against order of Tribunal rejecting the refund

Held: From the decision of Supreme Court in Gujarat Ambuja Cements, it is clear that the users of the service rendered by the Goods Transport Operators are liable to pay service tax - In the present case, the appellant is using the services of the Goods Transport Operators during different periods between 1997 to 1999. Hence, the appellant is liable to pay service tax. Since the appellant has already paid the service tax, as per the law laid down by the Supreme Court in the case of Gujarat Ambuja Cements Ltd. 2005-TIOL-53-SC-ST , the question of refund will not arise and the appellant is not entitled for refund. Hence, the Tribunal is justified in confirming the order of the Original Authority declining to grant refund. (para 11)


CC, CE & ST Vs Godavari Khore Cane Transport Company Pvt Ltd (Dated: January 27, 2015)

ST - Nature of work undertaken by the respondent must be understood in the context in which it was understood by the respondent and its principal-sugar factory - Respondent engaging labour for harvesting of sugarcane & loading it in vehicle and unloading at factory site - services are not 'Manpower Recruitment or Supply Agency Services' - agreement itself is eloquent enough to draw the above conclusion - Revenue appeal dismissed: High Court [ para 6, 7]



Ramadasu Narasinga Rao Vs CCE, C & ST (Dated: December 16, 2014)

Service Tax - Appeal dismissed by the Tribunal though appellant sought adjournment - It appears from the findings of the Tribunal that no one appeared for the appellant on the day when the impugned order was passed - It is noted that a letter was communicated to the registry of the Tribunal by the appellant himself stating that he was unwell and therefore an adjournment should be granted - The Tribunal should have considered the said request - The Tribunal thought that it wa s not an application for adjournment made lawfully and that could be done only by a lawyer engaged - Counsel is nothing but a recognized agent and the application for adjournment is always made by the litigant not the lawyer. - Whether ground for adjournment is tenable or not is another aspect of the matter - The Tribunal should have considered this request though not made through the lawyer - Appellant to make suitable application to Tribunal within seven days.


M/s R Muthulakshmi and Co Vs CCE (Dated: January 9, 2015)

Service Tax - Appeal against order of Tribunal directing pre -deposit of Rs 10 lakhs - Contention that the consignee, who is the recipient of the service is liable to pay service tax under Rule 2(1)(d)(v) of the Service Tax Rules, 1994.

2015-TIOL-164-HC-ORISSA-ST

M/s Jay Balaji Jyoti Steels Ltd Vs CESTAT (Dated: December 24, 2014)

ST/CUS/CE- Speed Post is also Registered Post- only difference is charges payable and speed of delivery - Service of notice, orders etc. by Speed post is to be considered as equivalent to service by registered post- Amendment in section 37C of CEA, 1944 by the FA, 2013 is clarificatory and, therefore, retrospective in operation: High Court [para 6, 9, 11, 12, 15]



M/s K Madhav Kamath Brothers And Co Vs ACCE (Dated: December 17, 2014)

ST -Penalty - s. 76, 77 & 78 of FA, 1994 - Merely because the service tax in question is paid prior to the issuance of SCN, the assessee cannot be exonerated from payment of penalty -Tribunal has concluded that there is no explanation as to the so-called bona fide mistake -undoubtedly, the appellant has paid the taxes for the period January 2006 to October 2006 belatedly -no interference called for in Tribunal's order -appeal dismissed: High Court [ para 5, 6]


Dhandayuthapani Canteen Vs CESTAT (Dated: December 12, 2014)

Service Tax - Service tax paid before the issue of Show Cause Notice - Penalty of Rs 10,000/- imposed by the Adjudicating Authority enhanced to amount equal to the Service Tax by revising the order by the department under Section 84 of the Finance Act, 1994 - Assessee in appeal against the order passed under Section 84.


K V Raghunathan Pillai Vs CCE, C & ST (Dated: December 3, 2014)

Service Tax – Appeal against the order of Tribunal directing the Petitioner to deposit Rs 8 lakhs as pre-deposit – Contention that as per the amended provisions of Section 35F, the Petitioner is required to pay only 10% of the tax demanded.

Held: The stay application is dated 15/4/14 and the order passed by the Tribunal is dated 26/8/2014. As on 6/8/14, when the Finance Act came into force, the stay application dated 15/4/14 was pending before the CESTAT and therefore, the provisions relied on by the appellant does not come to his assistance in any manner – However, taking note of the totality of the case, the direction requiring the appellant to remit an amount of Rs. 8,00,000/- is too onerous – Pre-deposit reduced to Rs 5,00,000/-( par a 4 & 7).


The Kalladikkode Service Co-Operative Bank Ltd Vs UoI (Dated: December 15, 2014)

Service Tax – Demand of Service Tax on Co-operative Society - Writ Petition seeking to declare the proceedings initiated by the department as illegal.

Held: In view of the submission made by the petitioners that, service tax in respect of the period October 2007 to June 2012 has already been satisfied under protest, but adjudication is still to be finalised, the Petitioner is relegated to the departmental adjudicating authority - It is made clear that, in the course of such adjudication exercise, if the authority arrives at a finding that the petitioners are not liable to satisfy service tax, the amount already satisfied by the petitioners shall be refunded at the earliest, at any rate, within one month thereafter. (para 5)


CCE & C Vs Panchmahal Steel Ltd (Dated: December 18, 2014)

CENVAT credit utilized for payment of ST on GTA under reverse charge - no infirmity - Tax appeal dismissed: High Court [ para 8]


Documents

HIGH COURT RULING (SERVICE TAX)...Section 65(105)(zzzza)(ii)(b) of the Finance Act, is fallacious and cannot be tenable. It is also stated by the petitioner that if at all the first