1.1 Saj Flight Services P. Ltd. vs. Superintendent of CE
2006 (4) STR 429 (Ker)
The Kerala High Court in this case held as follows:
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Regular supply of goods and beverages to aircrafts for
service to passengers on board is an activity covered under ‘Outdoor Caterer
Service’. There is nothing in the definition clause which indicate that
‘purpose’ or ‘occasion’ should be rare of occasion and should not be
frequent or even regular.
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Payment of sales tax treating the transaction partly as
sale of goods does not exonerate the appellant from liability of service tax
under Service tax law. Since service of food and beverages by caterers to
aircraft amounts to sale of goods as well as rendering of service, therefore
both service tax and sales tax can be levied on the very same transaction.
(It is to be noted that in case of BSNL vs. State of UP (JT
2006 (6) SC 114) it was held that sale price of goods should not include value
of service for levying sales tax and vice versa.)
1.2 Larsen & Toubro Ltd. CCE, Mumbai – I 2006 (4) STR
466 (Tri-Del)
The appellant was providing marketing and product support
in respect of earth moving equipments. Sales and dispatch of equipments were
directly made from manufacturer’s factory to buyer. The appellant carried out
pre-delivery inspection of equipments as a part of their service. The Tribunal
held that even if pre-delivery inspection has an aspect of clearing &
forwarding, it does not satisfy essential requirements of that service. It is
further held that risk cover in relation to the risk during clearing,
forwarding and transportation, is clearly separate activity from clearing &
forwarding and therefore not liable to tax under Clearing & Forwarding
services.
1.3 Waters India Pvt. Ltd vs. CST, Bangalore 2006 (4)
STR 524 (Tri- Bang.)
The Tribunal in this case held that activity of training of
persons to utilize complicated and sophisticated machine system cannot be
considered as ‘Consulting Engineers Service’ as no advice, consultancy or
technical assistance is provided in any field of engineering and set aside the
demand raised.
1.4 Dr. Lal Path Lab Pvt. Ltd. vs. CCE, Ludhiana 2006
(4) STR 527 (Tri – Del.)
The Tribunal in this case held as follows:
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Drawing, processing and forwarding of blood samples is
integral and connected to testing and covered under “Technical Testing &
Analysis Service’, however testing or analysis in relation to human beings
or animals is explicitly excluded in the definition. Exclusion of testing or
analysis in relation to human being or animal by legislature is clear
indication of legislative intention of not to impose any tax on impugned
activity.
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The activities carried out by the appellant are not in
the same genre of illustrative services under serial No. (iv) of ‘Business
Auxiliary Services’.
-
Items covered by specific entry in tax code cannot be
taken out and taxed under other entry. Bringing services under general entry
owing to exemption under specific entry is not sustainable.
1.5 S. B. Constructions Company vs. UOI 2006 (4) STR 545
(Raj.)
The Rajasthan High Court in writ petition filed by the
petitioner held that service provided by the petitioner in relation to
handling or movement of coal from railway wagons to the site of thermal power
station with the aid of wagon tippling system to be fed in boiler through
conveyer systems does not fall under Cargo Handling service as no motor
vehicles or any means of transportation is involved in such handling. It is
further held that High Court has power to entertain writ petition where the
impugned action of executive is without jurisdiction or is likely to subject a
person to lengthy proceedings and unnecessary harassment.
1.6 Siticable Networks P. Ltd. vs. CCE, Mumbai 2006 (4)
STR 555 (Tri-Mum)
The Tribunal in this case held that service of positive
information about future programmes to be telecast on the channel cannot be
subjected to tax under Advertising Agency. Preparation of an advertisement for
electronic/print media broadcast is a very sophisticated and specialized job
involving expertise, huge costs and also lots of efforts. Dissemination of
said advertisement in target audience is a broadcasting service and not
advertising service. It is further held that activity of selling space or time
could never be considered as service by an advertising agency but covered
under broadcasting service.
1.7 Techaids vs. CCE, Delhi – 2006 (4) STR 566 (Tri-Del)
The appellant in this case were receiving old and used
cylinders and filled up them with paper/cotton felt/rubber for bringing them
in original workable condition so that cylinders can be put to use in machine.
The Tribunal held that the activity undertaken by the appellant comes under
the scope of Maintenance or Repair service and therefore liable to service
tax.
1.8 Shakumbari Sugar & Allied Industries Ltd. vs. CCE,
Meerut-I 2006 (4) STR 567 (Tri-Del)
The Tribunal in this case observed that mere employment of
an engineer cannot make an organization an engineering organization.
Engineering firms are a separate category altogether from general industrial
organization. It is held that the consultancy receipt by the appellant is a
stray receipt and the appellant’s identity is as a sugar manufacturer and not
as an engineering firm. The revenue flows mostly from sugar manufacturing &
selling and not from engineering services. Therefore service tax is not
attracted under Consulting Engineers’ service.
1.9 Amrit Varsha Ispat (P) Ltd. CCE, Meerut-I 2006 (4)
STR 572 (Tri-Del)
In this case the Tribunal held that mere procuring and
booking orders for principal by an agent on payment of commission does not
amount to providing service as a clearing & forwarding agent.
1.10 Ajanta Fabrication vs. CCE, Meerut 2006 (4) STR 605
(Tri-Del)
The Tribunal in this case held that the appellant carrying
out activity of making hoardings, sign boards and signage is not liable to
service tax under Advertising Agency as the design of signage, their colour
scheme etc. was provided by the client and the appellant was not equipped for
functioning as an advertising agency. The extended definition of Advertising
Agency cannot bring entirely alien and unconnected services or a manufacturing
activity within the scheme of levy on services.
2.1 CCE Delhi-IV, Faridabad vs. Illpea Paramount Pvt.
Ltd. 2006 (4) STR 416 (P&H)
The High Court in this case held that once levy of penalty
is found to be warranted having regard to the requirement of statute, quantum
of penalty is not at the discretion of authority and same has to be equal to
the amount of duty. The matter has been remanded for fresh decision on the
quantum of levy of penalty.
(This decision is in reference to section 11AC of Central
Excise Act which is similar to section 78 providing penalty for evasion of
service tax due to fraud, collusion etc.)
2.2 Pushpak Publicity vs. CCEC, Nashik 2006 (4) STR 449
(Tri-Mum)
In this case, Commissioner revised the order and levied
penalty for delay in payment of service tax at Rs. 100/- per day. The Tribunal
after relying on decision in the case of ETA Engineering Ltd. vs. CCE 2006 (3)
STR 429 (Tri-LB) held that minimum penalty prescribed under section 76 was not
just Rs. 100/- but Rs. 100/- per day and the subsequent amendment to section
76 was only clarificatory in nature. The revision order enhancing penalty is
therefore upheld.
2.3 Ar. Sandeep C. Sikchi vs. CCEC, Nashik 2006 (4) STR
587 (Tri-Mum)
In this case Tribunal has set aside the enhancement in
penalty in view of Extra Ordinary Tax Payer Friendly Scheme and on the basis
of facts that the appellant has paid amount of service tax along with interest
and obtained registration before 31-10-2004.
3.1 In Re: NHK Spring India Ltd. 2006 (4) STR 618 (Commr.
Appl.)
The Commissioner (A) held that definition of input service
in CENVAT Credit Rules, 2004 is inclusive and covers both transportation of
goods from factory to depot and of inputs to factory. CENVAT credit of service
tax paid on outward transportation of finished goods from factory to
customer’s premises is admissible as CENVAT Credit.
3.2 In Re: D.C.M. Shriram Consolidated Ltd. 2006 (4) STR
610 (Commr. Appl.)
The Commissioner (A) held that definition of input service
not only includes services used in the manufacture of final products but also
services used in post manufacturing activities or activities which are
necessary to run day-to-day business. CENVAT credit is admissible on service
tax paid on security services used for security of assets like building, plant
etc and service tax paid on photography services for photographs taken at
different occasions/activities as the cost of the photographs is also included
in the cost of product.
