INDIRECT TAXES Service Tax Case Law Update

Transcription

1 Ca. Bharat Shemlani INDIRECT TAXES Service Tax Case Law Update 1. Services accommodation Service 1.1 Tirumala Tirupati Devsthanams vs. Supt. of CCEST, Tirupati 2013 (30) STR 27 (AP) The High Court in this case held that, Guest houses provided to pilgrims by the appellant constituted under AP Charitable and Hindu Religious Institution and Endowment Act, 1987 is liable to service tax under Accommodation Service. Construction Service 1.2 LCS City Makers Pvt. Ltd. vs. CST, Chennai 2013 (30) STR 33 (Tri.-Chennai) In this case the land owner transferred part of his right in land and in return got construction flats and thereafter, land owner share of Undivided Share of land (UDS) of flats registered in his name. The Tribunal in this case held as under; After registration of his UDS, land owner was like any other prospective buyer for whom construction of complex is carried out except that he has a guaranteed right to get his share of number of flats. Land owner parted with his rights in land partially for consideration in form of constructed flats to be received later. Service was provided to UDS holders including land owner. It was not the case that flats were constructed and sold, and in that view, it was not construction service for self. Residential complexes were not constructed for personal use of owners of land. It was predominantly for sale of individual buyers. In few cases, considering large percentage of total constructed area handed over to land owners, it was clear that, land owner had engaged developer for construction of flats which flats could be sold by him. Construction of flats was composite contract as specified in Article 366(29A) of Constitution of India. Value of material and service can be separated and subjected to service tax by providing abatement from total contract value. Land owner transferring part of his rights in land to developer, for consideration in form of constructed flats received later is a type of barter system, and therefore value indicated in agreement between developer and land owner was not correct. Flats handed over to land owner were not different :120 ML-560

2 from those sold to individual buyers, and could not be assessed at different values for services in respect of both. Works Contract Service introduced w.e.f , covers services which were liable to Service Tax under different categories, hence it cannot be interpreted as altogether new entry. It only provides a new method of determining liability on such service at option of service provider. Commercial Training or Coaching Service 1.3 Soni Classes vs. CCE, Jaipur-I 2013 (30) STR 92 (Tri.-Del.) The appellant a proprietary firm provided Commercial Training or Coaching Service and another proprietary firm sold study material etc., to students. The department sought to include value of study materials, test papers etc., sold to students by the other proprietary firm run from the same premises. The Tribunal held that, there is no material on record showing other proprietary firm is independent firm and there is failure to show purchase and resale of text books to students. Therefore, the value of study materials is to be included in value of taxable service and liable to service tax. Rent-a-Cab Service 1.4 CCE, Ludhiana vs. Singh Travels 2013 (30) STR 96 (Tri.-Del.) The assessee in this case engaged in providing a cab-on-call and demand. The Tribunal held that, such kind of service is not included in rent-a-cab service. Goods Transport agency Service 1.5 Birla Ready Mix vs. CCE, Noida 2013 (30) STR 99 (Tri.-Del.) The department in this case demanded service tax on vehicles used for transporting ready mix concrete from place of manufacturing to place of delivery of goods. The appellant contended that, they are responsible only for vehicle and no custodial rights or responsibilities in matter of goods carried. They have also not issued consignment note. The Tribunal held that, in terms of section 65(50b) of FA, 1994, when consignment note is not issued by operator, operator cannot be considered as GTA. Mere fact that, activity of transportation carried out by operator not to make appellant GTA and Log book maintained can be equivalent as consignment note. The issue is already examined in G. S. Lamba & Sons 2011 (430) VVST (AP), though in context of State Sales Tax, however there is no need to take different view. Clearing & Forwarding agent Service 1.6 Jaiprakash Strips Ltd. vs. UOI 2013 (30) STR 139 (Bom.) The appellant in this case engaged in procurement of orders and handling of goods as per terms of contract. The credit note issued disclosed that, the appellant directly dealt with goods in lifting, providing vehicles and delivering. The Tribunal held that, it is not a simple case of placing orders and earning commission and the service was liable to tax under Clearing and Forwarding Agent Service. Management or Business Consultants Service 1.7 Bharti Televentures Ltd. vs. CCE, Delhi-I 2013 (30) STR 148 (Tri.-Del.) The appellant in this case was engaged in liaison work and the department sought to tax them under Management or Business Consultants Service. The Tribunal held that, every name of service indicating entry in Section 65(105)(r) of FA, 1994 meant to cover only consultancy or advisory service and not all activities done by others for management. Liaison work not in the nature of any consultancy or advice but temporary function ML

3 required for company s functioning. Liaison work not to be considered as Management or Business Consultancy service. It is further held that, inclusive portion of definition cannot restrict meaning of Means part of definition, defining the general meaning. Business auxiliary Service 1.8 Sharwan Kumar vs. CCE, Chandigarh-I 2013 (30) STR 176 (Tri.-Del.) The appellant in this case, engaged in the process of denting and painting on the bus bodies claimed exemption under Notification No. 8/2005-ST on the ground that, the process amounts to manufacture. The department denied the said exemption. The Tribunal held that, processes carried out by the appellant is essential for completion of manufacture and therefore there is no reason to held processes not manufacturing activity within Section 2(f) of CEA, Further, as per Note 6 of Section XVII of CET, processes essential for transforming semi-finished bus body into complete and finished article, therefore processes of manufacture. Further, with regard to coverage of shifting of goods within the factory premises under activities amounting to Production or processing of goods for, or on behalf of the client specified in Business Auxiliary Service, it is held that, production not covering shifting of goods and expression processing used in company of production to cover activity of bringing about change in the goods and not expressions like shifting, transportation, storage etc. 2. Interest/Penalties/Others 2.1 Kalyani Hayes Lemmerz Ltd. vs. CCE, Pune-III 2013 (30) STR 71 (Tri- In this case, the appellant failed to file refund claim under Notification No. 41/2007-ST quarter-wise as stipulated in para 2(c) of the said Notification. The Tribunal held that, exemption under Notification operationalised through refund mechanism and unless conditions specified satisfied, claim cannot be entertained. Amendment made vide Notification No. 32/2008-ST prospective and inapplicable to past refund claims. 2.2 M. R. Coatings Pvt. Ltd. vs. CCE, Rajkot 2013 (30) STR 76 (Tri.-Ahmd.) In this case the appellant paid service tax and interest before issuance of SCN, however department imposed penalty under section 76. The Tribunal held that discharge of service tax liability and interest thereof and no adjudication for enhancement or addition to amount already discharged. In view thereof provisions of Section 73(3) of FA, 1994 are applicable and issuance of SCN was not required. The Tribunal followed Karnataka High Court decision in Adecco Flexione Work Force Solutions Ltd TIOL-635-HC-KAR- ST. 2.3 Anand Decorators & Hirers vs. CST, Ahmedabad 2013 ( 30) STR 86 ( Tri.- Ahmd.) The appellant in this case mis-declared value of service by collection of excess amount on reverse side of Invoice and short payment of tax. They have contended that, since SCN is issued after two years of SCN no demand is to be raised. The Tribunal held that, judicial decision require decision of Delhi High Court in Bajaj Travels Ltd (25) STR 417 (Del.) to be followed and hence, penalties under sections 76 and 78 are sustainable. Since the appellant is partnership firm facing stringent financial difficulties and almost 75% of tax demand paid before issue of SCN, penalty is restricted to 100% of Service tax demanded. 3. CENVAT Credit 3.1 CCE, Ahmedabad-II vs. Cadila Healthcare Ltd (30) STR 3 (Guj.) :122 ML-562

4 The High Court in this case allowed CENVAT credit on following input services; Technical Testing and Analysis service availed by appellant engaged in manufacture of medicaments, for testing of clinical samples by various agencies prior to commencement of commercial production. Technical Inspection and Certification services availed in respect of instruments used for measuring size, temperature, weight, humidity. Repair/maintenance of copier machine, air conditioner, water cooler, Management consultancy, Interior Decorator, Commercial or Industrial Construction service. Clearing and Forwarding Agents services used for storage of goods after clearance from factory. Courier collecting parcel of goods from factory for further transportation. The High Court has not allowed CENVAT credit of service tax paid on commission paid to foreign agents as agents were directly concerned with sales rather than sales promotion and services provided by them was neither Business Auxiliary Service nor they were covered under the definition of input service. The said services were not used directly or indirectly in or in relation to manufacture of final products or clearance of final products from place of removal. 3.2 CCE, Guntur vs. Varun Motors 2013 (30) STR 31 (Tri.-Bang.) The appellant, authorised distributor of Bajaj Auto Ltd. distributed CENVAT credit from Sales Office to other authorized service station. The Adjudicating Authority revoked ISD registration as sales office not to be treated as service provider. The Tribunal held that, Input Service Distributor definition in CCR, 2004 indicating ISD to be an office of manufacturer or provider of service provider. Sales office undisputedly is appellant's office and appellant is service provider, therefore there is no objection for treating premises as ISD premises. Hence, denial of credit taken based on credit distributed by ISD is not irregular. 3.3 Wadpack Pvt. Ltd. vs. CCE, Bangalore 2013 (30) STR 51 (Tri.-Bang.) The department in this case disallowed CENVAT credit of service tax paid on Business Auxiliary Service constituting commission paid to agents for sales promotion of dutiable goods. The Tribunal relying on Bombay High Court decision in Ultratech Cement Ltd (20) STR 577 (Bom.) held that, where a particular activity is expressed mentioned in the inclusion part of definition, one need not bother to examine whether it satisfied the ingredients of main definition. Sales promotion is expressly figures in inclusion part of definition of Input service in Rule 2(l) of CCR, Handa Refrigeration vs. CCE, Gurgaon 2013 (30) STR 111 (Tri.-Del.) The Tribunal in this case allowed CENVAT credit of service tax paid on purchase of PMP certificate and royalty paid for repair and maintenance service, both used for providing Repair & Maintenance Service. 3.5 YGI Industries (India) P. Ltd. vs. CCE, Mumbai-III 2013 (30) STR 146 (Tri.- The Tribunal in this case held that, once the service tax has been paid on job charges for grooving and the said service has been used in or in relation to the manufacture of the final products of the appellant, the appellant is rightly entitled to avail CENVAT credit. It is further held that, whether he was entitled for exemption and was not required to pay duty at all should not be and cannot be a ML

5 consideration for the Jurisdictional Officers at the appellant s end, who is only a service recipient. 3.6 Zydus Nycomed Healthcare Pvt. Ltd. vs. CCE, Belapur 2013 (30) STR 197 (Tri.- The Tribunal in this case allowed Cenvat credit of service tax paid on travel and car service, catering service and construction service used for repair and maintenance of factory premises. 3.7 Hindustan Zinc Ltd. vs. CC&CE, Jaipur- II 2013 (30) STR 199 (Tri.-Del.) The department denied CENVAT credit of input services distributed by Head Office, which distributed credit of Service Tax paid thereon without registration as service distributor. The Tribunal observed that, identity of head office, service recipient and provider as well as genuinety of transaction not in doubt. It is held that, denial of CENVAT credit only because invoices had name of head office, defeated object of avoiding cascading effect. Also this was at initial stage of implementation of law regarding distribution of credit, where difficulties were being experienced because of Registration and other technical procedures involved. 3.9 Castrol India Limited vs. CCE, Vapi 2013 (30) STR 214 (Tri.-Ahmd.) The Tribunal in this case inter alia held that, demand for disallowance of Cenvat credit distributed by HO is required to be raised at the end of ISD (HO) and not at the unit level CCE, Vadodara vs. Schott Glass India Pvt. Ltd (30) STR 219 (Tri.-Ahmd.) The Tribunal in this case allowed CENVAT credit of service tax paid on Rent-a-cab service for transportation of employees from city to factory in a village, about 40 kms away on the ground that, to get proper employees, it was necessary for the assessee to provide transportation facility from nearest city and it was welfare measure, necessary to ensure that manufacture took place properly Dagger Forst Tools Ltd. vs. CCE, Mumbai- I 2013 ( 30) STR 206 ( Tri.- The department in this case sought to deny distribution of credit by ISD on the ground that, the ISD is permitted to distribute taxes paid on or after registration. The Tribunal held that, there is no such kind of restriction provided in the Rules and therefore denying distribution of credit on such basis is unwarranted. :124 ML-564