|
Indirect Taxes
Service Tax - Case Laws update
-
Services
1.1
CCE, Cochin vs. BPL Telecom Pvt. Ltd. 2007 (5) STR 349 (Tri-Bang.)
In the present case, after relying on judgments in CCC vs. Air Stream Systems
Pvt. Ltd. 2006 (1) STR 133 (Tri) and other cases and CEBC Circular No.
79/9/2004-ST, dated 13-5-2004, it is held that activity of erection,
installation and commissioning cannot be brought into the ambit of Consulting
Engineer.
1.2 Blue Star Ltd. vs. CCE, Hyderabad-II 2007 (5) STR 353 (Tri-Bang.)
The Revenue demanded service tax on labour component involved in erection,
installation and commissioning of air conditioners system. The Tribunal relying
on Larsen and Toubro Ltd. (2006 (4) STR (63) Tribunal) held that works contract
cannot be vivisected and part of it cannot be subjected to service tax.
1.3 Protec Laboratories P. Ltd. vs. CCE, Mumbai-I 2007 (5) STR 372
(Tri-Mumbai)
The Tribunal relying on judgment in Larsen & Toubro Ltd. & Others vs. CCE 2006
(3) STR 321 (Tri-LB) and CBEC Circular No. 59/8/2003-ST, dated 20-6-2003 held
that the activities carried out by appellant of canvassing for and marketing of
principals product on commission basis during the period of dispute (period 1997
to 2003) is not covered under category of Clearing and Forwarding Agents
service.
1.4 MTV Network India Pvt. Ltd. vs. CCE, Mumbai-I 2007 (5) STR 374
(Tri-Mumbai)
The appellant in this case under agreement with foreign TV channels provided
services such as collecting advertising materials, information regarding
displays, collecting payments from advertisers and remitting to foreign
companies. The Revenue sought to tax such activities under Advertising Agency
services. The Tribunal relying on decisions in Zee Telefilms Ltd. 2006 (4) STR
349 (T) & Siticable Network P. Ltd. 2006 (4) STR 555 (T) held that the issue
raised in present appeal is covered matter and appellant is not liable to tax as
advertising agency.
1.5 Shilpa Colour Lab vs. CCE, Calicut 2007 (5) STR 423 (Tri-Bang.)
In the present case the Tribunal held as under:
-
Printing of photograph is liable to service tax. The contention that it is a
sale transaction as the material cost is more than labour cost is not tenable.
-
Cost of unexposed photography films, unrecorded magnetic tape or other storage
device is to be excluded if sold during the course of providing taxable service.
However such exclusion is subject to production of invoice/records regarding
sale of such goods. Further, it is held that, each and every invoice for output
service is not required to mention the value of such goods for claiming
exclusion.
-
Interest/Penalties/Others
2.1 Vijay Baburao Petkar vs. CCE, Ahmedabad 2007 (5) STR 376 (Tri-Mumbai)
The appellant in this case filed appeal before Commissioner (A) after 18 months
of date of receipt of adjudication order. The Commissioner (A) rejected the said
appeal on the ground of limitation. Following the ratio of decision in Maithan
Ceramic Ltd. 2002 (145) ELT 394 (Tri-LB) it is held that, Tribunal cannot
condone delay, which was occurred in filing appeal before lower appellate
authorities.
2.2 Saralee Household & Bodycare (I) P. Ltd. vs. CCE, Chennai 2007 (5)
STR 381 (Tri-Chennai)
In this case, the appellant kept the excise duty
paid as “receivable from Government or current assents” in their books of
account and filed refund claim. C.A. certificate was also filed to that extent.
The Tribunal held that the department has not rebutted the authenticity of
documentary evidence produced by the appellant and the presumption of unjust
enrichment under section 12B of CEA is successfully rebutted by the appellant
and therefore entitled to refund.
2.3 Neeldhara Weav. Factory vs. DGFT, New Delhi 2007 (5) STR 404 (P&H)
In this case, department imposed penalty after 14
years of the default. The Hon’ble Punjab & Haryana High Court held that power to
impose penalty to be exercised within reasonable period of time, where no time
limit is prescribed under the statute for exercise thereof.
2.4 TNT India Private Limited vs. CST, Bangalore 2007 (5) STR 410
(Tri-Bang.)
In the present case, the appellant asked for
clarification from the department regarding taxability of transshipment of
commercial cargo by air under courier agency services. The Additional
Commissioner clarified that such activity was not liable to service tax. Later,
the said clarification was withdrawn by the Commissioner through a letter. In
appeal filed against that letter, the Tribunal held as follows;
-
Clarification issued by Additional Commissioner
is an order determining rights of appellant. Such order was passed on due
consideration of representation of appellant.
-
Letter issued by Commissioner, withdrawing such
clarification and asking appellant to discharge service tax is appealable order,
as rights and liabilities of appellant were affected and principle of natural
justice violated as no notice was issued and no hearing was granted before
passing order.
-
CENVAT Credit
3.1 Nahar Industrial Enterprises Ltd. vs. CCE, Chandigarh 2007 (5) STR
385 (Tri-Del)
In this case, supplier of inputs was liable to
pay duty @ 8%, however paid the duty @ 9.2%. The Tribunal held that, when
revenue is not objecting to payment of duty @ 9.2% at the time of clearance of
goods, CENVAT Credit to the appellant, who are recipient of inputs, cannot be
restricted to 8%.
|
