1.1 CCE, Ludhiana vs. Patient Service Centre
2008 (9) STR 229 (P &H)
The humble High Court following Commissioner
vs. Dr. Lal Path Lab Pvt. Ltd. 2007 (8) STR 337 (P&H) held that
Technical testing or analysis in relation to human beings or
animals is excluded from Technical Testing and Analysis Service
and mere incidental service of blood sample collection by putting
across or dropping name of principal cannot be taxed under
Business Auxiliary Service.
1.2 New Mangalore Port Trust vs. CST,
Mangalore 2008 (9) STR 235 (Tri – Bang.)
In this case, the appellant received charges
for Railway sidings constructed in Port Railway Yard from the
persons used such Railway sidings. The Tribunal held that Railway
siding charges are not covered under Port services and also not in
relation to vessels or goods. These charges are different from
Railway haulage charges which are liable to service tax. Further,
no proof of suppression of facts by the appellant was produced by
the department; hence extended period of limitation cannot be
invoked.
1.3 Jaded Siddappa & Co. vs. CCE, Mangalore
2008 (9) STR 239 (Tri – Bang.)
The appellant, a Chartered Accountant firm
provided services in relation to Meter reading, billing and ledger
keeping as part of outsourced work. The activities were carried
out by unskilled employees, who were neither Chartered Accountants
nor being trained as such but were covered under various labour
welfare legislations. The Tribunal held that such activity carried
out by the appellant were not coming within the ambit of
professional services of Chartered Accountants and therefore not
liable to service tax.
1.4 CCE, kochi vs. Cardamom Mkg. Corporation
2008 (9) STR 247 (Tri- Bang.)
In the present case, the appellant was engaged
in the business of cardamom auction. The Revenue sought to tax
them under C&F Agent’s Service. The Tribunal observed that
licensed auctioneer is statutorily restricted from charging any
amount over and above 1% commission and terms and conditions of
licence regulating business of licensee reveals that C&F Agent’s
service is not involved. It is held that mere receiving and
storing of goods for auction cannot be related to C&F operations.
Further, provisions defining service in relation to auction of
property was inserted with effect from 18-4-2006 indicating
activity of calling auction or providing facility, advertising
service, pre-auction estimates and short-term storage services.
1.5 S. R. Kalyanakrishnan vs. CCE, Kochi
2008 (9) STR 255 (Tri- Bang.)
The appellant in this case was appointed by the
Bank to verify correctness, fairness and authenticity of
information furnished by those seeking loans from Banks. The
Tribunal held that services provided by the appellant are not in
relation to promotion of service provided by Bank, therefore not
classifiable under Business Auxiliary Service but classifiable as
Business Support Service and taxable w.e.f. 1-5-2006.
1.6 Transformers & Electricals Kerala Ltd.
vs. CCE, Kochi 2008 (9) STR 285 (Tri – Bang.)
The appellant in this case contended that they
have undertaken manufacturing activity and services rendered by
them are in the nature of works contract hence not liable to
service tax. The Tribunal observed that charges for execution of
work relating to designing and engineering, supervision of
erection, installation, design and drawing, training and
commissioning were clearly demarcated in Invoices. On the basis of
the facts of the case it is held that contract is in the nature of
divisible contract and ratio Daelim Industrial Co. 2006 (3) STR
124 (T-Del) is not applicable to the present facts and the
appellant though manufacturer, employs professional engineers for
various activities undertaken and therefore liable to service tax
under Consulting Engineers category. It is further held that since
the issue was relating interpretation and appellant being
Government unit, penalty under section 76 is not sustainable.
1.7 In Re: Batra Brothers 2008 (9) STR 299 (Commr.
Appl.)
In the present case, the Appellate Commissioner
held that bottling of LPG from bulk pack to cylinder pack is
covered under Packaging Service w.e.f. 16-6-2005 and not under
Business Auxiliary Service as the process does not amount to
production of goods since LPG was already in existence before such
process.
1.8 Imagic Creative Pvt. Ltd. vs. CCT 2008
(9) STR 337 (SC)
In this case the Hon’ble Supreme Court held as
under:
-
Payment of Service Tax and Vat are mutually exclusive. The
applicability is to be determined having regard to respective
parameters of Service Tax and Sales Tax as envisaged in
composite contracts as contradistinguished from indivisible
contracts.
-
Composite contracts may consist of different elements providing
for attracting different nature of levy. Demand to pay sales tax
on value of entire contract irrespective of element of service
provided is not correct.
-
If
in a contract, an element to provide service is contained, the
purport and object for which the Constitution had to be amended
and clause 29A had to be inserted in Article 366 must be kept in
mind.
1.9 Western Rajasthan Colour Lab Association
vs. UOI 2008 (9) STR 351 (Raj.)
In this case, the Hon’ble Rajasthan High Court
after relying on Supreme Court judgment in C. K. Jidheesh vs. UOI
2006 (1) STR 3(SC) held that contract by photographer is service
con-tract and bifurcation of gross receipt between goods supplied
and services is not permitted.
(Note: The High Court has not considered BSNL’s
decision, which has overruled C. K. Jidheesh decision; hence the
above decision is per incuriam)
1.10 ASL Motors Pvt. Ltd. vs. CCE&ST 2008
(9) STR 356 (Tri-Kol)
The Tribunal in this case held as under:
-
Provision of free after sales service by Authorised Service
Station is merely incidental and intended to promote sales.
Amount for free service is not reimbursed by the manufacturer,
but forms part of dealer’s margin and such margin is already
subjected to sales tax.
-
According to the provisions of Constitution of India, there is
mutual exclusivity between taxability of sale of goods charged
to sales tax by the State and excise duty on manufactured goods
and tax on services both levied by the Centre.
1.11 Molex (India) Ltd. vs. CCE (Appeals)
Bangalore 2008 (9) STR 369 (Tri. Bang.)
In the present case, the appellant received
management consultants’ services from abroad during March, 2003 to
March, 2004. The department sought to levy tax on these services
under reverse charge mechanism. The Tribunal observed that in
Aditya Cement vs. CCE 2007 (7) STR 153 (Tri) it was held that
recipient is liable for import of services from 1-1-2005, whereas
in Calvin Wooding Consulting Ltd. vs. CCE 2007 (7) STR 411 (Tri)
it was held that recipient is liable for import of services from
16-8-2002. Since there are conflicting decisions, the matter
referred to Larger Bench.
1.12 Jyoti Ltd. vs. CCE Vadodara 2008 (9)
STR 373 (Tri. Ahmd.)
The appellant in this case has undertaken
composite contract for design, manufacture, supply, erection,
testing, installation and commissioning on turnkey basis. The
department demanded tax under consulting engineer. The Tribunal
held as under:
-
Contract was a composite contract and Tribunal’s decision in
case of BSBK Pvt. Ltd. 2007 (5) STR 124 (Tri) is not applicable
as separate considerations are not received for design and
engineering. Further, Works contract service is liable to
service tax from June, 2007.
-
Appellant is only manufacturer of goods and not engineering
firm. Consulting Engineer’s service covers professionally
qualified engineer or engineering firm. To render advice means
to give opinion or to make recommendation regarding decision or
course of conduct. Consulting means seek information or advice
from a person or take counsel. Technical assistance means
providing assistance based on special skill and knowledge.
Execution of work is not included in terms ‘advice’,
‘consultancy’ and ‘technical assistance’.
-
Supply of machinery being sale transaction not liable to service
tax. Consulting Engineer’s service covers services in the areas
of advice, consultancy and technical assistance and no other
additional services. Service rendered by an engineer relating to
actual construction work is not liable to service tax under
Consulting Engineers category.
1.13 Gujarat Chem. Port Terminal Co. Ltd.
vs. CCE Vadodara-II 2008 (9) STR 386 (Tri. Ahmd.)
The appellant registered as minor port provided
storage for imported and exported goods. The department sought to
tax them under Storage & Warehousing services. The Tribunal held
as under:
-
Storage facility offered by the appellant is incidental service
and integral part of port services. Storage facility in port
area is requirement of law. The appellant provided the services
as minor port and not as storage and warehouse keeper.
-
Storage facility provided by the port is composite service and
vivisection of composite activity for taxing is not permissible.
Storage of goods is a part of port service and cannot be
vivisected for taxing under storage and warehousing service.
-
When a particular service is made liable to service tax from
particular date, then such activity is not taxable under
pre-existing service category, when definition of pre-existing
category is not changed/modified.
1.14 Bax Global India Ltd. vs. CST
Bangalore-II 2008 (9) STR 412 (Tri. Bang.)
The appellant in this case a Custom House Agent
paid service tax on CHA activities and not paid tax on Air freight
and other activities. The Tribunal held that activity of CHA is
related to entry or departure of conveyances or import or export
of goods at any customs station. CHA’s activity is limited to
custom station and does not extend beyond that. Further,
Commissioner (Appeals) decided the similar issue in assessee
favour, attained finality as such order was not appealed against
by the Revenue. Furthermore, it is held that some profit earned
from such other activities is also not liable to service tax.
3.1 CCE, Chandigarh vs. Nahar Exports Ltd.
2008 (9) STR 252 (Tri-Del.)
The assessee in this case utilized accumulated
Cenvat credit for payment of service tax on GTA service as
recipient of service. The department insisted on cash payment and
alleged that credit cannot be utilized by the recipient of
service. The Tribunal held that benefit of erstwhile explanation
appended to Rule 2(p) of Cenvat Credit Rules, 2004 creating
deeming fiction was available to person even if he was not a
manufacturer or service provider. Manufacturer or Service provider
is eligible to take or utilize credit of service tax as per Cenvat
Credit Rules, 2004 without having recourse to erstwhile
explanation appended to Rule 2(p).
Also refer to CCE, Belgaum vs. Flowserve
Microfinish Pumps Pvt. Ltd. 2008 (9) STR 278 (Tri- Del)
3.2 In Re: Asia Pacific Hotels Limited 2008
(9) STR 294 (Commr. Appl.)
In the present case the Commissioner held as
follows:
-
Cenvat credit of 16 specified services under rule 6(5) is
entirely available for payment of output service and would not
hit by the restrictions under Rule 6(2) or Rule 6(3) as the Rule
6(5) starts with “Notwithstanding anything contained in sub
Rules (1), (2) and (3)”.
-
Rule 6(5) speaks about allowability of credit and not taking or
utilization of Cenvat credit. The expression used therein is
‘allowed’ which covers both taking and utilization
3.3 CCE, Mumbai – III vs. DIL Ltd. 2008 (9)
STR 411 (Tri-Mumbai)
In this case, the assessee claimed Cenvat
credit of service tax paid by Job Worker under Business Auxiliary
Service. Revenue contended that job worker being exempted under
Notification No. 8/2005-ST, Service Tax paid is not eligible for
availment. The Tribunal observed that service tax payment by job
worker and receipt of services in factory were not disputed, hence
the order holding assessee eligible to avail credit is legal and
sustainable.
