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CESTAT RULINGS 2008

AIT-2008-274-CESTAT
M/s Tiger Sports Marketing Pvt. Ltd Vs Commissioner Service Tax, Delhi

The sponsors have paid the agreed consideration to the Appellant for getting their names added to the name of the tournaments and acquiring rights to display their logos and advertise their products through the tournaments. Appellants can not be said to have provided event Management service to the Sponsors.  The Appellants, by organizing the golf tournaments, the commercial rights of which can be exploited by the Appellants, have provided the event management service to themselves and therefore, the same would not attract any service tax.

AIT-2008-275-CESTAT
Traumac Engg. Co. Pvt. Ltd. Vs CST, Ahmedabad

transfer of technical know-how and royalty payment will not be leviable to service tax under the category of consulting engineers

AIT-2008-276-CESTAT
M/s Panasonic Battery India Co. Ltd. Vs CCE, Indore

knowhow fee or royalty paid to a company for right to use the technology developed by that company, is merely a transaction in intellectual property, not a consultancy or advice and therefore service tax under “consulting engineer’s service” head would not be attracted

AIT-2008-278-CESTAT
Hindustan Zinc Ltd. Vs CCE, Jaipur
Larger Bench: the date of commencement of liability of the recipient of taxable service provided by a person who is a non-resident or is from outside India, and does not have any office in India to pay service tax
AIT-2008-279-CESTAT
R.S. Financial Services Vs CCE, Jaipur

there was no valid reason for the appellate Commissioner to hold that, a sole-proprietory concern was not a commercial concern, and therefore, service tax was not leviable when taxable service was provided by a proprietory concern

AIT-2008-280-CESTAT
Anuradha Jain Vs CCE, Bhopal

concern in its ordinary dictionary meaning would mean business of somebody hence concern in the context of business run by sole proprietor means business of such sole proprietary concern.  As the activity undertaken by the assessee was a commercial activity, therefore, are liable to pay Service Tax

AIT-2008-303-CESTAT
M/s RPG Enterprises Ltd Vs. CCE, Mumbai

Since the Service Tax law provides for payment of service tax on the gross amount charged, the appellant's plea that the gross amount recovered should be considered as inclusive of service tax is not tenable and is not accepted. The Explanation 2 added to Section 67 of the Finance Act, 1994 with effect from 10.9.2004 cannot be applied retrospectively

AIT-2008-311-CESTAT
M/s. Firepro Systems Private Limited Vs. CST, Bangalore

Activity of undertaking 'Turnkey Projects' involving designing, supply, installation and commissioning of fire safety and protection systems is taxable under the category of 'Erection, Commissioning or Installation Services' only w.e.f. 16.06.2005.

AIT-2008-316-CESTAT
RPG Cellular Services Ltd. Vs CCE, Chennai

service tax cannot be levied on the value of the SIM cards sold . Such tax was leviable only on the activation charges

AIT-2008-317-CESTAT
M/s Hutchison Max Telecom Pvt. Ltd Vs CCE, Mumbai

while assessing of the Service Tax as provider of telephone service the value of SIM card which was imported on payment of Custom duty, cant be added to the value of taxable service.

AIT-2008-334-CESTAT
M/s Beekay Enterprises Vs CC&CE, Kanpur

Even if a case of suppression of facts or contravention of any provision were made out, it is clear that suppression or contravention per se would not justify imposition of penalty unless it was made intentionally in order to evade payment of duty

AIT-2008-356-CESTAT
M/s Singhania Chemicals Agency  Vs. CCE, Ludhiana

C&F Operations’ cannot be dissected into ‘Clearing’ and ‘Forwarding’ as they fall in the common category and hence all or any of the services of that category will be services provided by a ‘C&F Agent’, connected with ‘C&F Operations’ and would attract levy of service tax under Section 65(23)

AIT-2008-371-CESTAT
M/s Unitech Limited Vs CST, Delhi

Appellants received Architect’s services from M/s Callison Architecture Inc., U.S.A., who do not have any office or business establishment in India and whether the Appellants, as recipient  of a taxable service from an offshore service provider are liable, in term of Rule 2 (1) (d) (iv) of the Serviced Tax Rules, 1994, to pay service tax

AIT-2008-372-CESTAT
M/s Dewsoft Overseas Pvt. Ltd. Vs CST, New Delhi

the activity of providing ‘online computer training;’ is classifiable as ‘commercial Training or Coaching’ under Section 65 (27) of the Finance Act, 1994 and on this basis exempt from service tax

AIT-2008-387-CESTAT
M/s Bosch Chasssis Systems India Ltd Vs CCE, Delhi

Larger Bench Whether the assessee is entitled to take cenvat credit on the basis of supplementary invoice of the manufacturer in case additional duty of excise is paid suo motu on receipt of the show cause notice alleging wilful mis-statement or suppression of facts or contravention of the provisions of the Central Excise Act or the Rules with intent to evade duty invoking proviso to Sub-Section (1) of Section 11A of the Act?

AIT-2008-388-CESTAT
M/s. HMT Vs CCE, Panchkula

Larger Bench: when the input-credit legally taken and utilised on the dutiable final products, need not be reversed on the final product becoming exempt subsequently

AIT-2008-389-CESTAT
Estern Setcrete Pvt. Ltd. Vs CCE, Haldia

sales tax collected from the buyers but not paid to the Sales Tax Department in view of the exemption granted under the West Bengal Sales Tax Act, 1994, is includible in the assessable value

AIT-2008-390-CESTAT
MAX India Ltd Vs CCE, Jallandhar

Rule 8 of Central Excise Valuation Rules would be applicable only when the excisable goods are not sold but are cleared for captive consumption but this rule would not be applicable where finished products are cleared partly for home consumption and partly for captive consumption and in such a situation, assessable value of the goods cleared for captive consumption shall be at par with the assessable value of goods cleared for home consumption

AIT-2008-394-CESTAT
Reliance Industries Limited Vs CCE, Rajkot

the expenses incurred on account of reimbursable  expenses shall not form part of the value of the taxable services

AIT-2008-395-CESTAT
M/s Bimetal Bearings Limited Vs CCE, Chennai

Larger Bench: even where duty is paid suo motu before finalization of assessment under rule 7 of the Central Excise Rules, the manufacturer will be liable to interest on the differential amount of duty

AIT-2008-405-CESTAT
M/s BSBK Pvt. Ltd Vs. CCE, Raipur

The conclusion in Daelim case on the point, prima facie, being not in accordance with law, we are of the view that it would be appropriate to refer this case to the Larger Bench

AIT-2008-406-CESTAT
M/s. Victor Gaskets Limited
Vs. CCE, Pune

Credit of the service tax paid on the outdoor catering (canteen) service is admissible as input service under Rule 2(l) of the Cenvat Credit Rules, 2004

AIT-2008-407-CESTAT
GTC Industries Ltd Vs. CCE, Mumbai

Larger Bench: Employment of outdoor caterer for providing catering services has to be considered as an input service relating to the business and cenvat credit in respect of the same will be admissible.

AIT-2008-411-CESTAT
Raaj Khosla & Co. Vs. CCE, New Delhi

The invoices were in the name of the appellant. However, the address is different than the registration certificate. Subsequently, the registration certificate was got amended by the appellant and office address on the invoices were also included in the Registration certificate.  In these circumstances, the denial of credit   of Rs.5,18,027/-, is not sustainable  and hence, set aside

AIT-2008-423-CESTAT
Nahar Spinning Mills Vs. CCE, Bhopal

The Appellants as recipient of taxable service from off shore service providers are liable to pay the service tax under Rule 2(1)(d)(iv) of the Service Tax Rules only w.e.f. 1.1.05.

AIT-2008-433-CESTAT
M/s. Louis Berger International Inc Vs CCE, Jaipur

The liability to pay income tax arising out of income from the services rendered is on the appellant. The TDS amount deducted was payable only on behalf of the appellant to the Income Tax Department. We do not find any justification to exclude the said amount from the gross amount for the purpose of determining the service tax

AIT-2008-445-CESTAT
Stag Software Private Limited Vs. CST, Bangalore

Software engineering itself is completely exempt from Service Tax at all times even at present. When software engineering itself is not liable to tax, software testing, which is an integral part for such development, cannot be brought under tax net in the guise of Technical Inspection & Certification service. Moreover, the learned Advocate has clearly distinguished the facts in the case of Tata Consultancy Services (supra), wherein the Hon’ble Apex Court was dealing with “canned” software, which was ready for sale off the shelf. However, in the present case, the testing goes hand in hand with the development and this is not a case of “canned” software, which can be treated as “goods”. Therefore, in view of the above, we hold that the demand of Service Tax on software testing in the category of “Technical Inspection & Certification Service” is not correct.

AIT-2008-449-CESTAT
Nicholas Piramel (I) Ltd. Vs CCE, Mumbai

Larger Bench: The provisions of Rules 6(3)(b) of the Cenvat Credit Rules, 2002 are not applicable when the amount equivalent of the Cenvat Credit attributable to the common inputs used in, or in relation to, the manufacture of exempted final products has been paid prior to the removal of exempted final products from the factory

AIT-2008-450-CESTAT
Modernova Plastyles Pvt. Ltd. Vs CCE, Mumbai

Larger Bench: reversal of credit availed on capital goods is required when capital goods are removed, whether used or not

AIT-2008-451-CESTAT
M/s Gupta Metal Sheets Vs CCE, Gurgaon

Larger Bench: “whether theft or dacoity would be unavoidable accident within the meaning of Rule 49 so as to merit remission of excise duty on the goods so lost.”
Unlike  the Customs Act where there are provisions for remission of duty when the goods are pilfered while in the custody of custodian and with a corresponding provision for demand of duty from the Custodian, Rules 49 and 147 do not cover the cases of pilferage, theft or dacoity.

AIT-2008-452-CESTAT
M/s. Unicon Connectors Pvt. Ltd. Vs CCE, Bombay

Larger Bench: “Connectors fitted with wire” are classifiable under sub-heading No.8536.00 of the Tariff as held by the Commissioner (Appeals) and accepted by the Respondent (in short “assessee”) and not under sub-heading No.8544.00 of the Tariff as claimed by the Revenue in their appeal.

AIT-2008-456-CESTAT
Cable Corporation of India Ltd. Vs CCE, Nasik

Since Rent-a-Cab service is used for bringing employees to work in the factory for manufacture of goods it has to be considered as being used indirectly in relation to the manufacture or as part of business activity for promoting the business as any facility given to the employees will result in greater efficiency and promotion of business.

AIT-2008-457-CESTAT
Manikgarh Cement Vs CCE&C, Nagpur
 

Cenvat credit of Rs. 1,07,943/- availed by the appellants who are manufacturers of cement, on account of repairs and maintenance of civil construction, etc., in their residential colony during the period from July, 2005 to March, 2006 is allowed

AIT-2008-466-CESTAT
Cadila Pharmaceuticals Ltd. Vs CCE, Ahmedabad
Larger Bench: Valuation of physician's sample of medicines, which are supplied free of cost and are not being sold by the manufacturer
AIT-2008-471-CESTAT
Lakshmi Automatic Loom Works Ltd. Vs CCE, Trichy, Chennai

Larger Bench: Whether, during the period March, 1996 to May, 1998, a manufacturer of final product, who procured inputs and availed MODVAT credit thereon, was entitled to remove the inputs as such, without reversal of the credit or payment of equivalent amount of duty, to a 100% EOU under CT-3 certificate in terms of Notification No. 1/95-C.E.

AIT-2008-472-CESTAT
Skycell Communications Ltd. Vs CC, Chennai

Larger Bench: Whether 'Explanation' added by Notification No. 3/98-Cus., dated 11-2-98 to the entry at S1. No. 173 of the Table annexed to Notification No. 11 197-Cus., dated 1-3-97 is clarificatory of the expression 'computer software' so as to have retrospective effect from 1-3-1997

AIT-2008-473-CESTAT
Cadbury India Ltd. Vs CC&CE, Pune

Larger Bench: In the case of provisional assessment under the Central Excise Rules, 2002 interest is required to be paid from the first day of the month succeeding the month for which such amount is determined.
Interest is required to be paid even if the differential amount is paid before the order, under the Rule 7(3) of the said Rules, is issued finalizing the assessment.

AIT-2008-492-CESTAT
Asstt. Engineer (Civil) Vs. CCE, Raipur

Larger Bench: Chhattisgarh State Electricity Board is not a Department of the State Government so as to be eligible for exemption in respect of goods i.e. PCC Poles manufactured in their factories

AIT-2008-495-CESTAT
Excel Crop Care Limited Vs CCE, Ahmedabad
CHA services availed in respect of export does not have any nexus with the manufacture and clearance of the product from the factory – Credit Not Allowed
AIT-2008-496-CESTAT
Kuntal Granites Ltd. Vs CCE, Bangalore
Section 4(3)(c) of C.E. Act clearly explains that the place of removal is the premises from where excisable goods are to be sold after their clearance from the factory. In the present case, the goods were exported and when export documents are presented to the Customs office, then that is the place of removal as per Section 5 of C.E. Act.
AIT-2008-497-CESTAT
Rolex Rings Pvt. Ltd. Vs CCE, Rajkot
the ownership of the goods remain with the seller till the port area, it can be safely held that all the services availed by the exporter till the port area are required to be considered as input service inasmuch as the same are clearly related to the business activities

CESTAT Rulings 2008   Page1


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