1.1 Vijay
Sharma & Company vs. CCE, Chandigarh, 2007(7) STR 518 (Tri – Del.)
The Tribunal in
this case observed that, the levy of tax in respect of Stock
brokers service is in connections with ‘sale and purchase of
securities’ and the stock brokers service is rendered by the main
broker only and sub-brokers are commission agent in the
transaction and invite interested parties to the main broker. It
is held that service tax is not leviable on the services of
sub-brokers under the head ‘Stock broker service’ since they are
not involved in the sale and purchase of securities in stock
exchange.
1.2 Harsh
Marketing vs. CCE, Goa, 2007 (7) STR 538 (Tri – Mum.)
In the present
case, the Tribunal inter alia held that value of certain
peripheral services in the nature of sorting, stuffing and sealing
of bills/invoices is includible in the value of courier agency
services.
1.3 Homa
Engineering Works vs. CCE, Mumbai, 2007 (7) STR 546 (Tri – Mum.)
The appellant in
this case engaged in repairing, chipping, cleaning and painting of
vessels. They took registration under ‘maintenance and repair
service’ and paid tax thereunder w.e.f. 1-7-2003, which was
accepted by the department. The demand of service tax raised for
the period 16-7-2001 to 30-9-2003 under Port services. The
Tribunal on the basis of facts of this case held as follows:
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The expression ‘any other service
in respect of vessels’ in statutory definition of port services
is applicable to movement of vessels only. Repairing of vessel
in dry docks is not connected with vessel repair. Repair charges
in contract arrived at after negotiations. Therefore, services
of repair of vessels are not covered under Port service during
the impugned period.
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The extended period of limitation
of 5 years cannot be invoked, as positive allegation of
suppression or misstatement with intent to evade tax was absent
and the issue in hand involved bona fide interpretation of
provisions.
-
CBEC circular dated 10-11-2003
clarifying ship repair at dry docks taxable under port services
is binding on departmental officers and not on assessees. Since
such activities are not covered under Port services as per the
relevant provisions, the said circular is not in accordance with
law.
1.4 Uni Power
Systems Ltd. vs. CCE, Kochi, 2007 (7) STR 590 (Tri – Bang.)
The appellant in
this case was providing maintenance and repair service to
transformer of various capacities supplied by them to the
customers. The Tribunal held that since the appellant is not
having any maintenance contract but only a work order, they are
not liable to pay service tax under Maintenance and Repair
service.
1.5 Reliance
Telecom Ltd. vs. CST, Ahmedabad, 2007(7) STR 595 (Tri – Ahmd.)
In this case
Tribunal held that Interconnect Usage Charges (IUC) charged by the
appellant for providing services of interconnectivity to
cellular/mobile operators and basic telephone service providers
for interconnecting their customers with customer of other
cellular/mobile operators is not liable to service tax under lease
circuit service.
1.6 All India
Federation of Tax Practitioners vs. UOI 2007(7) STR 625 (SC)
The Supreme Court
held inter alia as follows:
-
Entry 60 of List II of State List
mentioning taxes on professions, trades, callings and employment
is taxing entry and not general entry and cannot be extended to
include services. Service and profession are not synonymous
under Entry 60. Parliament is having absolute jurisdiction and
legislative competence to levy tax on services under Entry 97 of
List I of Union List.
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Service tax is a Value Added Tax
(VAT) and is destination based consumption tax. Service tax is
on commercial activities and is a charge not on business but on
consumer. Service tax is leviable only on services provided
within the country and is on value addition by rendition of
service.
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In case of Chartered Accountants
and Cost Accountants service, the taxable event is each exercise
undertaken by service provider in giving advice on tax planning,
auditing and costing etc.
1.7 CCE,
Hyderabad vs. Sathguru Management Consultants Pvt. Ltd. 2007(7)
STR 654 (Tri – Bang.)
In this case,
Tribunal held that services of share transfer agent and registrar
to an issue provided by the assessee came into service tax net
only w.e.f. 1-5-2006 and demand to levy service tax
retrospectively under other categories such as ‘Business Auxiliary
Service’ is not justified.
1.8 Telephone
Cables Ltd. vs. CCE, Chandigarh 2007(7) STR 657 (Tri – Del.)
In the present
case, the assessee provided export assistance and under
collaboration agreement, helped the customers to carry out exports
by obtaining orders, procuring materials and finding foreign
buyers. The Tribunal held that the said activities are not related
to advice, consultancy or technical assistance as envisaged under
Management Consultant’s service and therefore service tax demand
under the said category is not sustainable.
1.9 Vijaya Consultants vs. CCE, Guntur 2007(7) STR 671 (Tri –
Bang.)
The assessee, a
partnership firm consisting of one of the partners holding Diploma
in Engineering. The department sought to tax them under Consulting
Engineer’s category; however no Show Cause Notice (SCN) was
issued. The Tribunal held that without SCN demand is not
maintainable.
1.10 Tuticorin
Alkali Chem. & Fertilizers Ltd. vs. CCE Tirunelveli 2007(7) STR
672 (Tri – Chennai)
In this case, the
Tribunal after relying on MF (DR) Section 37B Order No.
5/1/2007-ST dated 12-3-2007 held that 75% abatement provided in
respect of Goods Transport Agency Services under Notification No.
32/2004-ST and 1/2006-ST is available to recipient of service
also.
1.11 First
Securities Pvt. Ltd. vs. CST Bangalore 2007(7) STR 690 (Tri –
Bang.)
In this case
Tribunal held as follows:
-
Handling charges and transaction
charges collected from investors cannot be equated to brokerage
or commission for purchase of securities. Handling charges
incurred in connection with delivery of scrip, is not in the
nature of commission or brokerage for purchase of securities.
-
Revision of original order under
section 84 cannot be invoked in case of original order which
already got merged in appeal order before issue of notice for
revision.
1.12 Sunwin
Technosolutions Pvt. Ltd. vs. CCE Ranchi 2007(7) STR 700 (Tri –
Kol.)
The Tribunal in
this case held that, in absence of any contrary intention of
legislature, a training which imparts skills and trains a trainee
to seek employment or self employment in whatever mode should be
through a vocational training institute. Vocational training
institute includes Computer training institute in term of
Notification No. 24/2004-ST till the time computer training
institute was specifically excluded from exemption notification
w.e.f. 16-6-2005. It is further held that, right to exemption
conferred cannot be abrogated retrospectively or curtailed by
implication, which was not the intention of legislature.
1.13 CCCE,
Hyderabad vs. CMC Ltd. 2007(7) STR 702 (Tri – Bang.)
In the present
case, Tribunal held that issue of Electors photo identity cards
cannot be considered as ‘Photo Identity’ falling within the
definition of Photography service. The activity carried out by the
assessee is sovereign activity performed by State functionaries
which cannot be brought under tax limit.
2.1 CCE,
Kolkata–I vs. Peekay & Company 2007(7) STR 540 (Tri – Kol.)
The Tribunal in
this case set aside the penalty on following grounds:
-
Delay in
discharge of tax liability was neither deliberate nor wilful or
for knowable breach of law.
-
Levy was at
initial stage and subject to judicial review by various High
Courts.
-
Public relation
announcements to the effect that, if service tax with interest
was paid on or before 30-11-2004, no penalty would be leviable
and such promise by department act as promissory estoppel and
levy of penalty would be deterrent.
2.2 Mukesh H.
Mehta vs. CCE, Mumbai 2007(7) STR 564 (Tri – Mum.)
In this case
appellant being an Architect under bona fide belief of ignorance
of law not registered himself and not paid tax also. However he
had discharged the entire tax liability with interest before
expiry of amnesty scheme. The Tribunal held that penalty is not
warranted and set aside the order imposing penalty.
2.3 CCE,
Bhopal vs. Maharashtra Samaj Bhawan Trust 2007(7) STR 651 (Tri –
Del.)
The Tribunal in
this case observed that when assessee who did not comply with
provisions of Service Tax Law, paid the tax along with interest
was not liable to penalty under Voluntary Disclosure Scheme dated
23-9-2004, no tangible and logical reason as to why law abiding
assessee, who had got himself registered and also started paying
service tax along with interest should be denied the benefit of
waiver of penalties. Thus dismissed the appeal filed by the
Revenue.
2.4 CCE,
Raipur vs. Lafarge India Ltd. 2007(7) STR 651 (Tri – Del.)
In this case, the
Tribunal awarded cost of Rs. 1,000/- to be paid by Department to
assessee for having spent amount for attending hearing of
application for condonation of delay.
