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CESTAT RULINGS 2014

AIT-2014-05-CESTAT
M/s Gujarat Guardian Ltd. Vs. CCE & ST, Surat

From the amendment carried out in the definition of “Input Service” under Rule 2(l) of Cenvat Credit Rules, 2004, it is apparent that the Service Tax Credit on GTA Services from the place of removal will not be admissible to the Appellant w.e.f 1.4.2008 - As the issue was disputed the Appellant was under the bonafide belief that Cenvat Credit is admissible on GTA Services.  As there is no indication of suppression with intention to evade any Service Tax, therefore, penalty is not attracted in this case under Rule 15 of the Cenvat Credit Rules, 2004

AIT-2014-12-CESTAT
M/s Pagariya Auto Centre Vs. CCE, Aurangabad

Larger Bench: Whether the table space provided by the Automobile dealers lo financial institutions fall under Business Auxiliary Service or not"? - Where mere space is provided along with furniture for facilitating accommodation of representatives of financial institutions in the premises of an automobile dealer and consideration is received for that singular activity, such consideration may perhaps constitute a rent for the provision of space and associated amenities. Such restricted relationship/transaction may not amount to BAS. If on the other hand, the transactional documents and other evidence on record indicates a substantial activity falling within the contours of any of the integers of the definition of BAS, spell out in Section 65(19), then it would be legitimate to conclude that BAS is provided.

AIT-2014-19-CESTAT
M/s Girnar Transformers Pvt. Ltd.
Vs. CCE, Kanpur

(a) While considering an application for waiver of pre-deposit, the appellate Commissioner is required to avoid a mechanical and ritualistic approach.   A waiver of pre-deposit application must be disposed of applying the principles set out in the judgments of the Allahabad High Court in ITC vs. Commissioner (Appeals) Meerut46 and the  A. P. High Court in CCE, Guntur vs. Sri Chaitanya Educational Committee47.    A summary of the principles governing the exercise of discretion in this area is set out in paragraph 14 of the judgment of the A.P. High Court; - (b) The Commissioner (Appeals) has the power, authority and jurisdiction to entertain an application for rectification or modification of an order of pre-deposit/ stay passed by that authority.  While no power is specifically conferred on the Commissioner (Appeals) either under Sections 35 or 35A of the 1944, Act to review his own decision; and though the provisions of Section 35C(2) of this Act confer the  power  (to rectify any mistake apparent on the record) only on this Tribunal, the Commissioner (Appeals) may entertain an application for rectification/ modification of a pre-deposit order, but only for rectification of an error on the face of the record;

AIT-2014-20-CESTAT
M/s GAP International Sourcing (India) Pvt. Ltd.
Vs. CST, Delhi

M/s GAP, U.S.A. do not have any branch or project or business establishment in India. The service in relation to procurement of goods being provided by the appellant are entirely meant for M/s GAP, U.S.A. and the service in question, - business auxiliary service, covered by Rule 3 (1) (iii) of the Export of Service Rules, 2005 have obviously been used by M/s GAP, U.S.A. in relation to their business located abroad. Therefore these services have to be treated as delivered outside India and used outside India and since payment for the service has been received in convertible foreign exchange, the same would have to be treated as exported out of India. The impugned order passed by the commissioner  is an absurd order contrary to the provisions of Export of Service Rules, 2005.

AIT-2014-21-CESTAT
M/s Ultratech Cement Ltd.
Vs. CCE, Raipur

for the period w.e.f. 01.04.08, while Cenvat Credit of service tax paid on the GTA Service availed for transportation of the finished goods up to the “place of removal” would be admissible, the definition of  “place of removal”, as given in section 4(3)(c) would be applicable only in the cases where the rate of duty on the finished goods is chargeable at ad-valorem rate on the value determined under section 4 and in other cases the “place of removal” would be the factory gate.

AIT-2014-22-CESTAT
M/s Anand Sales Corporation
Vs. CCE, Kanpur

the activity of purchase and sale of Recharge Coupons  & Sim Cards belonging to BSNL, where BSNL had discharged the full value of Sim cards, does not amount to providing Business Auxiliary Service

AIT-2014-75-CESTAT
M/s S V Jiwani Vs. CCE & ST, Vapi

appellant is discharging full Service Tax under the category of Works Contract Service using Inputs and Input Service are used for rendering of “output services”; on reading of provisions of Rule 2(l) of the cenvat credit rules 2004 it would indicate that assessee is eligible to avail cenvat credit of Inputs and input services which are used to provide “output service” which would include “setting up” of a factory premises. In the case in hand, it is undisputed that the appellant had provided output services which covered by works contract for setting up of plant, it has to be held that cenvat credit availed by the appellant is in consonance with the provisions of the Cenvat Credit Rules 2004. We also hold that the discharge of Service Tax liability at full rate by the appellant by applying provisions of section 67 of the Finance Act 1994 cannot be called in question by the Revenue.

AIT-2014-81-CESTAT
M/s. JSW Steel Ltd. Vs. CCE, Salem

Whether it is proper to allow Cenvat Credit of excise duty paid on excisable capital  goods paid for and used by JSWPL to be taken by SISCOL from  31-08-2006 when the two companies got merged -  it is proper to allow cenvat credit to M/s. SISCOL from October 2005 on capital goods used in setting up Power Plant for generation of electricity, which was captively consumed within the factory of M/s.SISCOL for manufacturing of their final product.

AIT-2014-82-CESTAT
M/s JBF Industries Vs. CCE & ST, Vapi

the provisions of Rule 6(1) of the CENVAT Credit Rules, 2004 cannot be invoked for denying CENVAT Credit of input services used by the appellant factory for manufacture of job-worked goods under Notf. No. 214/ 86 CE.

AIT-2014-83-CESTAT
M/s. Hyva (India) Pvt. Ltd. Vs. CCE & ST, Jamshedpurt

On building the body, motor vehicles were dispatched to Regional Sales Depots of TML after paying duty on the value i.e. cost of chassis plus fabrication charges.  The final goods namely, motor vehicles, were sold from the Depots by TML at much higher price.  Department objected to determination of value as above, which, according to the Department, should have been determined under Rule 10A of Central Excise Valuation Rules, 2000.

AIT-2014-84-CESTAT
M/s. Bhayana Builders Pvt. Ltd.  Vs. CCE, New Delhi

Construction of building and staff quarters for Tanzania High Commission would not be covered by the “commerce or industrial construction” as an Embassy or High Commission building cannot be said to be meant for commerce or industry

AIT-2014-86-CESTAT
M/s Federation of Indian Chambers of Commerce and Industry Vs. CST, Delhi

(a) That the appellants FICCI and ECSEPC are engaged in activities having objectives which amount to public service and are of a charitable nature; the appellant ECSEPC is also a body falling within the exclusionary clause (i) of Section 65(25a) of the Act; - (b) Services provided by appellants to their respective members and consideration received therefor is not exigible to tax in view of the principle of mutuality; - (c) The services provided by the appellants is not authorised for levy and collection of service tax under  “Club or Association” service, in view of declaration of unconstitutionality of the relevant and applicable provisions, by the judgment of the Gujarat High Court in Sports Club of Gujarat Limited vs. Union of India (supra);

AIT-2014-102-CESTAT
Chowgule & Company Pvt. Ltd.
Vs. CC & CE, Mumbai

Larger Bench: A trader-importer, who paid SAD on the imported goods and who discharged VAT/ST liability on subsequent sale, and who issued commercial invoices without indicating any details of the duty paid, would be entitled to the benefit of exemption under Notification 102/2007-Cus, notwithstanding the fact that he made no endorsement that "credit of duty is not admissible" on the commercial invoices

AIT-2014-113-CESTAT
M/s. Hero Motocorp Ltd. Vs. CCE, Delhi

The show cause notice was issued only on the ground that credit of service tax paid on outward transportation is not admissible in view of definition of the input service.  The credit is not being denied on the ground that the freight is not part of assessable value or any reason.  The only allegation in the show cause notice is that the appellant has wrongly availed credit which is not admissible and deliberately suppressed the fact with intent to evade payment of duty.

AIT-2014-114-CESTAT
M/s Thai Airways International Public Company limited Vs. Commissioner (Adjn), Central Excise Delhi

the appellant permitted by RBI to carry out air transport activity in India was a branch in India and was recipient of ‘online Database Access or retrieval Service’ from CRS Service provider abroad and was not liable to service tax in terms of section 65 (105) (zh) read with section 65 (75) of Finance Act, 1994 on reverse charge mechanism basis u/s 66A of the said Act w.e.f. 18.04.2006 and was exempt in terms of section 66A(2) thereof.

AIT-2014-115-CESTAT
M/s Parry Engineering & Electronics P. Ltd. Vs. CCE, Rajkot

Larger Bench: whether an assessee is eligible to avail CENVAT Credit of an amount paid as Service Tax by a service provider in respect of installation and erection, maintenance or any other services rendered at wind mills, which are located away from the factory premises and the electricity generated out of such wind mills is consumed at the factory premises after such power is to put through the common grid.

AIT-2014-125-CESTAT
M/s Haldiram India Pvt. Limited and Others Vs. CCE, Delhi

Larger Bench: appellants in whose favour an order of stay granted stood vacated on expiry of 365 days are required to present Application for Extension of Stay.

AIT-2014-129-CESTAT
M/s. Microsoft Corporation (I) (P) Ltd. Vs. CST, New Delhi

(i) That the business auxiliary services of promotion of market in India for foreign principal made in terms of agreement dated 1.7.2005 amount  to Export of   Services and the Hon’ble Supreme Court decision in the case of  State of Kerala and Others vs. The Cochin Coal Company Ltd. [1961 (12) STC 1 (SC) as also Burmah Shell Oil Storage  and Distributing Co. of India Ltd.  vs. Commercial Tax Officers [1960 (11) STC 764 ]  explaining the meaning of  export is not relevant inasmuch as the same deals with the export of goods and not export of services; - (ii) That the Business Auxiliary services provided by the assessee to their Singapore     parent company  was delivered outside India    as such was used there  and is covered by the provisions of Export  of Service Rules and are  not liable to Service Tax.

AIT-2014-142-CESTAT
Dr. Roshan Lal Agarwal & Sons Pvt. Ltd. Vs. C.C., ICD, New Delhi

whether homeopathic medicine imported by the Respondent is liable to Additional Customs Duty (ACD) @ 5% or 1% and 2% as the case may be of the value of import in terms of Notification No.1/2011/-CE dated 01.03.2011 - The levy of ACD shall be equal to the excise duty leviable on the imported goods as if that is manufactured in India. When the duty remission by way of CENVAT credit is admissible to the output, the goods imported into India shall be treated as manufactured in India and the respondent shall fail to succeed on the plea that the imported goods have not availed the duty remission for exports under WTO regime

AIT-2014-145-CESTAT
M/s. Bright Shaft Industries
Vs. CCE, Delhi

The appellants have been denied the Cenvat credit of Rs.2,48,80,202/- availed and utilized by them for payment of duty on their final product “bright bars” on the ground that activity of conversion of rods and  rounds does not amount to manufacture and as such, the appellant  should not have paid the duty on the final product and should not have availed the credit on the inputs.

  


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