CASE LAWS
-This section contains the Judgment on cases argued by the team swamy associates and reported.

Reported Cases 2017

S.No.

Name of the part

TIOL

Issue in brief

1 Hindustan Coca Cola 2017-TIOL-670 Tri Held: When erection and commissioning of water treatment plant was essential, there should not be denial of CENVAT credit of service tax paid in respect of such service availed for recycling of the water for use in manufacture - When the authority did not rule out use of the area for parking of the vehicles which are used in the manufacturing activities of the appellant, there cannot be disintegration between the input service as well as the purpose of the business and manufacture - Therefore, denial of CENVAT credit on this count is inconceivable - Accordingly, appellant gets relief on this count also 
2 Sri Ram Engineers 2017-TIOL--508TRI Due to practical difficulties, manufacturing unit was shifted from its previous place of manufacture to a new place - None of excisable goods manufactured in new location has gone without payment of duty - But without looking into such aspect, authority not only has demanded duty from new location unit but also denied CENVAT credit in respect of earlier location - Law does not require that the same assessee should suffer in both ways
3 Jayalakshmi Printing Mills 2017-TIOL-827 The order of the Adjudicating Commissioner shows that he has not applied his mind and that he had prejudged mind to reach to his decision without testing the evidence on record - The SCN indicates that there were two distinct units carrying out their activities and it also alleged that M/s.Jayalakshmi Printing Mills was the manufacturer and it was liable to duty - Perusal of the order throws light that the order has been passed superficially - it was the duty of the Adjudicating Authority to ascertain whether there were two distinct and independent units existed and what was their liability on the basis of investigation result and evidence on record - assessee should not be unjustly dealt under law and there should be cogent and credible evidence - The manner in which the impugned order has been passed, that calls for direction to the Adjudicating Authority to redo the adjudication examining the controversy in the SCN and considering the material facts, evidence, law and previous directions of Tribunal as well as the defence plea, granting fair opportunity of hearing to the appellant - Hence, both the appeals are remanded to the adjudicating authority
4 Dredging Corporation 2017-TIOL-1014 ST - Interest on delayed payment of ST - Penalty is also imposed for non-payment of interest - Considering that assessee is a Government of India under taking, the penalty imposed under Section 76 of FA, 1994 is unwarranted - Assessee have already discharged ST liability and are not contesting liability to pay interest on delayed ST - No reason found to interfere with penalty imposed under Section 77: CESTAT
5 Anand Rishiji Hosp 2017-TIOL-1006 ST - Renting of immovable property - Appellant seeks waiver of penalties imposed u/s 70, 76, 77, 78 of FA, 1994 - section 80(2) was inserted in the FA, 1994 according to which penalty stands waived if the service tax is paid within six months from the date of the enactment of the Finance Bill, 2010 - appellant submits that they tried to comply with the condition mentioned by presenting cheque on 23.11.2012, however, due to some discrepancy the cheque was not presented by the bank on the said date but later and the cheque was cleared on 29.11.2012 i.e. a day later than the mandated date - appellant submitting that even though immunity is not available u/s 80(2) of FA, 1994, considering the bonafides of the appellant, penalties can be waived by invoking section 80(1) of FA, 1994. Held: Section 80(1) of FA, 1994 is a general provision for waiver of penalty if the appellant is able to show reasonable cause for non-payment of service tax in time - in the present case, taxability of renting of immovable property was indeed under various litigation and finally settled by the Supreme Court in case of Home Solutions Retail - 2011-TIOL-103-SC-ST , therefore, issue was not free from doubt and as it involves grave interpretation of law, appellant is entitled for waiver of penalties in terms of s.80(1) of FA, 1994 - penalties imposed u/ss 76, 77, 78 waived and consequently penalty u/s 70 is also not sustainable - impugned order set aside and appeals are allowed:
6 Karnataka Metal Co 2017-TIOL-982 CX - Assessee allegedly issued cenvatable invoices without actual delivery of goods which led to fraudulent availing of credit - Department's allegations based on records seized from premises of an employee of the assessee - No raw material found to be supplied by assessee and no discrepancy in records proves that no finished goods could have been manufactured upon which credit could have been fraudulently claimed - Assessee's employee not made party to the proceedings - Records of buyers and other evidence not submitted by department - Department's evidence incomplete and lacking: CESTAT
7 Scionspire 2017-TIOL-798 Mad HC ST - Refund of unutilized CENVAT credit - Rule 5 of CCR 2004 does not stipulate registration of premises as a necessary prerequisite for claiming a refund - A perusal of the Sub Rules (2) and (3) of Rule 4 of the STR 1994, on which, reliance is placed by Revenue does not bring to fore any limitation, with regard to grant of refund, for unutilized cenvat credit, qua, export services, merely on the ground that the premises are not registered - Revenue appeal dismissed:
8 Cassel 2017-TIOL-6762 Mad HC CX - Assessee received capital goods & availed cenvat credit on them, partly in that year & partly in the subsequent year - It is alleged that assessee inadvertently capitalised duty paid & availed depreciation on it under the Income Tax Act, which was reflected in the assessee's income tax returns - For this reason revenue sought to deny cenvat credit - Assessee claimed that it had reversed the depreciation amount in subsequent returns filed - Tribunal dismissed assessee's appeal for lack of evidence that assessee had indeed reversed depreciation amount - Held - It is admitted that since the assessment was done under the Income tax Act, the only evidence that can be adduced would be a copy of the return - Thereby, Tribunal directed to hear matter on merits: 
9 APSRTC 2017-TIOL-1247- Hyd ST - Assessee providing services categorized under "sale of space or time for advertisement" & deposited service tax to the govt. for these services - Subsequently assessee sought a refund of tax paid as the services were non-taxable under the Negative list - Refund was rejected on ground of unjust enrichment - Held - Issue decided in several judgments - Any amount deposited under mistake of fact or mistake of law is not treated as tax paid because there is no tax liability - Thereby, such amount paid cannot be retained by government:
10 BHEL 2017-TIOL-1223 Held: The issue in question is no longer res integra and has been settled by a number of High Court decisions including that of Billforge Pvt. Ltd., subsequently followed in several rulings - following the maxim of stare decisis and the ratio set down in the Billforge decision, no interest liability will arise in the present case also and, consequently, there cannot be any imposition of penalty - no interference in the denial / reversal of credit
11 Powerlink 2017-TIOL-1148 / 2017 (50) STR 150 Tri Chennai Tribunal finds that the appellant was not in receipt of the communication of the order-in-original sent by speed post and that, it was based on certification issued by postal authorities, that the order was sent to appellant on 10 th August 2013 - The appeal was filed immediately thereafter - Appellant was not heard by the adjudicating authority and was informed of non-availability of adjudicating authority when appeared for hearing - Non- availability of notice on date stipulated for personal hearing is a possibility that cannot be ruled out - Adjournments are normally granted to enable hearing which is a mandated ingredient of the principles of natural justice - The completion of proceedings by the original authority without affording sufficient opportunity to notice is unseemly - failure to serve the adjudication order in accordance with the legally sanctified process - Hence, the order is set aside and the matter remanded back to the original authority
12 KCF Chitfunds 2017 (50) STR 161 Tri
13 Ramky Infrastructure 2017-TIOL-1782- Tri-Kol ST - Laying of pipelines for water supply, sewerage lines etc. for the Govt. of West Bengal and its various agencies - Payment of tax mistakenly - Limitation u/s 11B of CEA, 1944 is not applicable - Principle of unjust enrichment would not apply in the case of composite contract price - Refund admissible - appeal allowed with consequential relief: CESTA
14 Analogic Technomatics 2017 (350) ELT 270 Tri Hyd Wismo Modules Classification
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Reported Cases 2016

S.No.

Name of the part

TIOL

Issue in brief

1 Deeksha Travels 2016-TIOL-8 CESTAT Service Tax - Penalty - Appellant provides Tour Operators Services - On audit, it was found that appellant has not paid their service tax liability for demand period - Appellant admitted liability and paid a part of the duty demand along with interest before issuance of SCN and the balance after issuing SCN - Penalties were imposed under Section 76 and 77 - Appellant submits that the payments from their client were not regular and the amounts received were used for their business purposes due to financial difficulties but they had no malafide intention to evade tax as they were filing Returns duly reflecting the service tax required to be deposited -Appellant provided services leviable to service tax during the relevant period and also received the service tax amounts from service receiver but the same was not deposited with Revenue - Facts came into light on conducting audit of the records -Appellant's contention that interest should be treated as penal in nature cannot be accepted, as the same would render provisions of Section 76 as futile and otiose - In view of the clear contravention of law, no infirmity in imposition of penalty and appeal is rejected - Finance Act, 1994.
2 Piramal Enterprises 2016-TIOL-215 Payment of Special Additional Duty by 100% EOU - Inter-unit stock transfers of final product - Held, demand of SAD is unsustainable even though no VAT or Sales Tax was paid on such transactions - Impugned demand set aside - Appeal allowed with consequential relief
3 Top Victory Investments Pvt Ltd 2016-TIOL-215 Cus - Whether assessment of imported monitors LCD/LED is under Section 3(2) (b) r/w Section 4A of CEA, 1944 under MRP basis or under normal transaction value for purpose of CVD - Assessee imports LCD/LED Monitors and Television sets of various sizes falling under CTH 85285100 of CTA, 1975 and claimed full exemption from BCD under Notfn 24/2004-Cus and indicated MRP/RSP on packages - Bill of Entries were assessed for CVD @ 12% on MRP based assessment claiming 35% abatement in terms of Section 3(2) of CTA r/w Section 4A, and notfn issued there under - They have been regularly importing said items prior to 2003 and clearing goods on payment of CVD as per transaction value - From 24.12.2008 to 10.05.2012, department continued assessment and same was accepted under MRP and CVD was paid and the goods were cleared without any dispute on MRP assessment - Customs raised the objection on MRP assessment only from 10.05.2012, when abatement percentage was increased from 20% to 35% on said goods - Held: Once the goods are covered under LMA, as a packaged commodity, they are required to be cleared on retail sale price on packages as per provisions of Section 4A, assessment shall be on MRP basis - Monitors with brand name meant for sale to brand owners are eligible for assessment under Section 3 (2) (b) of Customs Act r/w Section 4A and notfn issued there under MRP/RSP based assessment and eligible for abatement as per notfn - Accordingly, impugned orders demanding differential duty is liable to be set aside: CESTAT
4 Magnum Clothing Pvt. Ltd 2016-TIOL-345 Service Tax - Export - Refund Claim - Appellant paid service tax for services availed from commission agents engaged abroad for marketing of their goods abroad - Subsequently, after knowing that they had not availed exemption granted by Notification No.18/2009, dt. 7.7.2009, considered the tax as paid erroneously and filed for refund under Section 11B - Revenue rejected the claim as barred by law on the ground that appellant did not follow the route of the notification - Basic principle of taxation is that taxes are not exported but goods are exported - If taxes involved in export due to reverse charge mechanism are not refunded, that shall form part of the cost of exported goods, which is prohibited since taxes are not expected to be exported - Hence, appellant being an exporter, it's claim of erroneous payment of tax made, needs to be considered under section 11B since provisions of Central Excise law are adopted by section 83 of the Finance Act, 1944 to give full effect and play to the scheme of taxation under Finance Act - Appellate authority should have examined appellant's claim on the basis of their pleadings and law relating to refund under Section 11B - Moreover, revenue's reliance on the precedent which held that when the notification does not allow the benefit thereof to a claimant, no refund is permissible is not relevant since in that case the claim relates to the period prior to the notification whereas in the case, it is post the notification - Once the period of claim relates to post the notification period, appellant deserves consideration - As appellant's claim goes to the root of section 11B which deserves consideration, matter needs re-examination - Matter remanded to adjudicating authority to re-examine the entire case in the light of the precedent and appellant's pleadings for refund - Appeal disposed of - Central Excise Act, 1944. (Para 4, 5, 6)  - Appeal disposed of : CHENNAI CESTAT
5 Vishnu Paper Product 2016-TIOL-273 Tribunal had decided the matter, exparte - although the order of the Tribunal had been passed, on merits, Court is of the considered view that a reasonable opportunity ought to have been given to the appellant assessee to put forth its contentions before the Tribunal - Order set aside and matter remitted to the Tribunal for passing appropriate order, on merits and in accordance with law, as expeditiously as possible, after permitting the appellant assessee as well as the respondent department to raise all the grounds available to them - Appeal disposed of: High Court
6 Supreme Petrochem 2016-TIOL-514 Central Excise - Amalgamation/Merger of companies into one unit - Transfer of unutilized CENVAT credit post amalgamation - Admissible - Amalgamation is not mere transfer of capital goods from one unit to another - Post amalgamation, new entity held is entitled to Cenvat credit which was lying unutilized in the accounts of the amalgamating company - No infirmity in the order of Appellate Commissioner allowing transfer of unutilized credit at the time of amalgamation - Revenue appeal hence is without merit hence is rejected
7 Classic Builders 2016-TUOL-465 HC Under Rule 41, the CESTAT has wide powers to prevent abuse of its process and to secure the ends of justice - Since right to appeal is a statutory right and pre-deposit requirement under Section 129E of the said Act are only in nature of procedural requirements, but for delay in meeting the pre-deposit requirement, the primary right of appeal cannot be extinguished - Orders of Tribunal are set aside and the appeal is restored on the file of Tribunal.
8 Tab India Granites 2016-TIOL-765 The period involved is January to March, 2010 and the appellants have filed the refund claim on 07.01.2011, which was returned in order to comply with the statutory requirement and the same was resubmitted on 02.05.2011 - finally on pointing out the defects, the same was rectified and the original documents were submitted on 04.11.2011 - The Tribunal in the case of Rubberwood India (P) Ltd. Vs. CC, Cochin has held that the date of limitation should be taken from the original date of filing of refund claim - Also, there has been an amendment under Section 11 B w.e.f. 26.05.1995, which stipulates that the date of filing the refund claim is the date on which claim was filed initially - since the claim has to be treated as having been filed on 07.01.2011 and, therefore, within time, the impugned order is set aside, and the matter is remanded to the original authority to decide the case on merits by giving opportunity of hearing to the appellants, within three months from the date of receipt of this order
9 Yazaki 2016-TIOL-858 Following the judgment of the Madras High Court in the case of Commissioner of Central Excise Chennai-III Vs Visteon Powertrain Control Systems (P) Ltd., an obligation meant to be discharged under a central statute should not be defeated by another statute when services is to be provided in accordance with the provisions of labour welfare legislation - Therefore, the appellant should not be denied Cenvat credit of catering services provided to workers - However, the recovery if any from the workers should be considered for proportionate allowance of the credit.
10 Zibal Exim 2016-TIOL-904 COD
11 Pawan Construction 2016-TIOL-928 ST - Whether cost of free supply of materials is includible in gross value while rendering 'Commercial or Industrial Construction Services'. Held: Larger Bench of Tribunal in Bhayana Builders (P) Ltd. - 2013-TIOL-1331-CESTAT-DEL-LB in paragraph no. 8 considered the scope of pre and post amended provisions of Section 67 of the Finance Act, 1994; and more specifically the substitution of section w.e.f. 18-04-2006 and came to a conclusion that value of free supply need not be included for discharge of service tax - in paragraph No. 10, the Larger Bench in sub-para no. (vi) considered the scope of Notification No. 1/2006-ST also - above said ratio was followed by the Principal Bench in the case of Hindustan Steel Works Construction Ltd. - 2014-TIOL-946-CESTAT-DEL and held value of supply of free material should not be included for arriving at gross value for charging service tax liability - in view of authoritative judicial pronouncements, impugned order is unsustainable and, therefore, set aside - Appeal allowed: CESTAT
12 LCS (Bala Basker) 2016-TIOL-824-Mad HC Maintainability - The writ petition is not maintainable, in as much as the law makes the service provider liable to pay service tax. It is always open to the service providers either to pass on the burden to the recipient of the services or not to pass it on. Under Clause 23 of the agreement for development, the petitioner and his siblings, who are the service recipients, agreed to take the burden to the extent they are liable. Therefore, the circulars, cannot be challenged by the petitioner. (para 7)

Locus standi - The contention that the person, to whom the burden of tax is ultimately passed on, is entitled to challenge a levy, if accepted, would lead to disastrous consequences. Any increase in the incidence of sales tax affects all consumers of all products. Millions of consumers are entitled to come and challenge such levies, if such a contention is accepted. Therefore, the petitioner has no locus standi to challenge the above circulars. (para 14)

Exchange of land with constructed area amounts to service by builder - It is not an easy proposition that it was a transfer of immovable property by way of sale or exchange - The agreement gave rise to a bouquet of rights for the builder. One was to put up a construction of an area, a part of which could be sold by them to third parties. They could be sold not only as such, but also along with the undivided share of land. Those parties had certainly availed the services of the builder as a service provider. The petitioner did not stand on a different footing than those persons. Therefore, the challenge of the petitioner to the circular, apart from the question of locus standi, does not merit acceptance. (para 23 & 26)
13 Lifecare Medical Systems 2015-TIOL_1156 ST - Appellant is engaged in the business of promoting, marketing, canvassing, Maharashtra, Madhya Pradesh and Goa for the medical equipment manufactured by M/s Viasys International Corporation; and also carries out after sales services like installation and commissioning, customer care services, warranty services during the warranty period, to the customers located in India in relation the products of Viasys - Commission received held liable to Service Tax under BAS on reverse charge basis by adjudicating authority - appeal to CESTAT. Held: Issue is no more res integra - law is settled by the Bombay High Court in the case of SGS India Ltd. - 2014-TIOL-580-HC-MUM-ST and identical view is taken in the majority decision in case of Microsoft Corporation (I) (P) Ltd. - 2014-TIOL-1964-CESTAT-DELwhere it is held that such an activity is not taxable under "Business Auxiliary Services" - there is also no dispute that the appellant has received commission in convertible foreign exchange for the period of tax liability from 01.07.2003 to 31.03.2008 - services rendered by the appellant is to an overseas manufacturer on whom Service Tax liability does not arise - impugned order is set aside and appeal is allowed: CESTAT
14 Binjusaria Ispat 2016-TIOL-1058 Central Excise - CENVAT Credit - MS Items - Credit availed on MS items such as plates, beams, channels, etc., as capital goods was denied, for the period June 2003 to December 2006 - Appellant has produced Chartered Engineer's certificate, photographs and other documents to show the use of MS items for installation and erection of plant and machinery/spares and components of capital goods - Issue is settled by the p recedents which held that the credit is admissible on MS items used for supporting structure of capital goods/components/spares - High Court in the case of'Mundra Sports & SEZ Ltd.' observed that the 'Tribunal while deciding 'Vandana Global Ltd.' case, has not mentioned in the judgment as to what is the aid resorted to by the Tribunal to hold that the amendment to Rule 2(k) to apply retrospectively' and observed that the amendment introduced w.e.f 7.7.2009 is to apply prospectively only - In view of the precedents, denial of credit is not sustainable and is set aside - Appeal allowed.
15 Devasri Ispat 2016-TIOL-1066 Central Excise - Refund Claim - CENVAT Credit - MS Items - Appellant was issued letter from Range officer directing them to reverse the credit as it was wrongly availed on MS items used in structural items as capital goods - Appellant reversed the credit under protest and filed for refund of it which was rejected on the ground that the credit was inadmissible - From the records, it is seen that the Department has not issued any SCN proposing to deny the credit taken on MS items or alleging wrong availment of credit, except the letter issued by Range Officer stating that the credit is not admissible - Appellant reversed the credit pursuant to the letter, under protest and thereafter filed refund claim - A SCN was then issued proposing to reject the refund - It is seen that appellant did not file any reply to the SCN, explaining the use of the MS items - Adjudicating authority is seen to have passed the impugned order that the credit is not admissible, basing on the available records - In such a situation, it is a fit case for remand to give a chance to appellant to file reply and substantiate their claim that the credit was rightly availed on MS items - Hence, matter remanded to adjudication authority for de novo adjudication in the light of the precedents and to decide the issue of admissibility of credit on impugned MS items while considering the issue of refund - Appeal disposed of.
16 Sujana 2016-TIOL-881 Central Excise - Penalty under Rule 209A of the Central Excise Rules, 1944 - Sustainability - Appellant was found to be an importer and not engaged in manufacturing activity and goods in question were not found to be excisable goods - Further, appellant was not alleged to have defaulted in payment of customs duty or evaded payment of excise duty or alleged to have cleared the goods out of the port clandestinely - Question of entertaining belief that goods in hand are liable for confiscation does not arise - Mandatory requirements to invoke penalty under Rule 209A not satisfied - Order imposing penalty being unsustainable is hence set aside
17 Icomm 2016-TIOL-1103 Central Excise - Benefit of Exemption - Limitation - Appellant-manufacturer of FHTDMA equipments cleared them to Bharat Electronics Ltd., without payment of duty under the notification which grants exemption to all the goods supplied to 'SAMYUKTA' programme under Defence Ministry - Exemption granted on 16.3.1995 continued upto 1.6.2006 by periodical extensions and it was further extended on 21.8.2006 upto 1.12.2007 - During the time gap between 2.6.2006 to 20.8.2006, there was no effective continuation of the exemption - Hence, Revenue demanded duty on the clearances made during such period - Appellant contends that the exemption to the ongoing programme should be available all along and also the demand raised on 1.5.2009 for the period 2.6.2006 to 20.8.2006 is time barred - Admittedly, there is a gap period during which there is no specific exemption for the impugned goods - However, facts show that it is not a simple case of non-availability of any exemption for the past clearance prior to the date of notification - Hence, from the facts though it is seen that appellant has a strong case on merits as regards availability of exemption without any interruption, case can be disposed of on the question of limitation alone - Appellant entered all the clearances in their records and filed regular returns also - Impugned order did not analyze the reason for sustaining the demand for extended period - If at all there is a mistake on claiming exemption during gap period, it is on both the sides, i.e., Revenue and appellant - There is no unearthing of suppressed facts by Revenue or positive act with intent to evade tax by appellant - Given the factual matrix of the case, there is no reason to justify invocation of extended period on the ground of suppression or fraud - Hence, impugned order of duty demand is not sustainable and set aside - Appeal allowed - Notification No. 64/95-CE dt. 16.3.1995 extended vide Notification No. 40/2006-CE dt. 21.8.2006. [paras 1, 2, 3, 5, 6, 7]
18 VLC SKC JV 2016-TIOL-1134 Service Tax - Ex-parte order - Appellant submits that the impugned order was passed as they did not make any representation and failed to put up their case with supporting documents at the time of original proceedings due to certain internal administrative difficulties - It is seen that the impugned order was passed ex parte after providing sufficient and adequate opportunities to appellant which they failed to avail - However, considering documentary evidences and submissions on the issues of tax liability, denial of credit and interest on delayed payments, due justice can be done only on proper perusal of the issues after giving a fair chance for submission of the same - However, since appellant have failed without adequate reasons to defend their case and as they have filed appeal with all documents in their support for the first time before Tribunal , they should be put to costs and are directed to pay Rs. 2 lakhs towards costs - Though appellant made various submissions on their liabilities, interest liability as confirmed in impugned order, prima facie, will stand - Hence, appellant is directed to pay the interest amount of Rs. 16.52 lakhs along with the costs imposed and to submit the evidence before original authority - Hence, impugned order set aside and matter remanded to original authority to examine all the issues a fresh - Appeal disposed of
19 Supreme Petrochem 2016-TIOL-1243 It is elementary principle of jurisprudence that what that was entitlement of the predecessor shall be entitlement of the successor once that is recognized by law and succession is one such mode in law - Therefore, the merging concern's right became right of the merged company - This principle having been recognized by Rule 10 (1) of Cenvat Credit Rules, 2004, the appellant cannot be denied the accumulated credit of the predecessor merging concern
20 Celebrity Fashions 2016-TIOL-1282 Central Excise - Refund - Public authority is duty bound to discharge public duty without laxity and serve public interest causing enquiry from third party to validate factual situation - Denial of refund sans causing enquiry and examination of material evidence on record, wholly unjustified - Non examination of whether or not the Customs duty part of the invoices should be granted as duty draw-back to the appellant, constitutes non-application of mind - On facts, the Adjudicating Authority is directed to pass appropriate order only upon causing enquiry in accordance with law
21 Iswarya Publicities 2016-TIOL-1409 Service Tax- appellant registered with ST department under the category of "Advertisement Agency Service"- initiation of proceedings for non-payment of ST- appellant claims to have paid the tax prior to issuance of SCN- which was verified and the liability was discharged by the appellant-appeal against the imposition of penalty under section 78- the proposed demands in the SCN were duly paid by the appellant and the same have been appropriated by the department- revenue contended that under the self-assessment scheme, it is the onus of the tax payer to discharge the liability- if the tax payable stands paid, no notice shall be served in respect of the amount so paid- Section 78 can be imposed only when there is fraud or collusion or willful misstatement or suppression of facts. - Appeal is allowed by setting aside penalty under Sec 78
22 Powerlink Systems 2016-TIOL-1515 CESTAT It is accepted by the lower authorities that the service in question perse is eligible for credit - However, the refund claimed has been denied on certain procedural lapses - The first objection is that the invoice submitted by the service provider does not indicate all particulars; which could have been avoided if the lower authority had called for the details of the purchase order and other correspondence and the terms of understanding between the appellants and service providers - Appellants have consistently taken a stand that the sub agents were engaged by them for procuring orders relating to export of services provided by the appellants - Once the service in question had been held to be eligible for the credit, the lower authorities should have verified the nature of payment effected on such services and the appointment of said sub agents who had provided such service - the rejection of invoices on the ground of lack of particulars is not correct - the refund had been rejected on the ground that there was no agreement between the service providers and the appellants for providing the service; that the copy of the agreement was given only after issue of Show cause notice - This ground for rejection is also not tenable as the genuineness of the documents has not been disputed - the claim is rejected for want of methodology for the quantification of the commission paid - so long as the commission paid is not disputed, which can even be verified from the bank statements or certificates from the bank, the rejection of claim for want of quantification of the commission paid is not legally tenable - the services exported are treated as 'exempted services' for which no credit is admissible hence on this ground claim is rejected inasmuch as under Rule 6 (8) of the Cenvat credit rules, services provided will not be an exempted service, if conditions prescribed under Rule 8(a) and (b) are satisfied - The lower authority had not examined whether these conditions are satisfied - one of the findings of the lower authority is that bank realisation certificates has not been correlated with the export invoices - in the event of non-realisation of remittances for export of services which is also governed under FEMA Act, the lower authority should have examined whether any action was taken under the FEMA - In absence of any such proceedings, it cannot be presumed that the remittances of export of services are not correlatable - keeping the view that claiming of refund under Cenvat Credit Rules is part of the export promotion scheme; without properly examining the records, such benefits cannot be denied - since the records in question can be properly verified by the Assistant commissioner, who had passed the order-in-original; the entire matter is remanded to the original authority for examining the issue afresh after giving sufficient opportunity for producing all required particulars - The appellants are also directed to cooperate to produce all the corroborative and correlatable documents to the original authority and prove their entitlement to the refund
23 Soundarya Decorators 2016-TIOL-1535 Tri The appellant assesse has availed Cenvat credit facility on outdoor catering service provided in the factory premises to its employees and also provided rent a cab service to its employees/officers of the Company for commuting to and from the factory premises to attend to their business activities of the company - Revenue viewed that outdoor catering service and rent a cab service were neither used in or in relation to the manufacture and clearance of the final products or it could be said to be an activity relating to the business - The issue has been elaborately considered by the Bombay High Court in the case of CCE, Nagpur Vs. Ultratech Cement Ltd. and the High Court of Madras in the case of CCE & ST, LTU, Chennai Vs. M/s. Turbo Energy Ltd. - following the ratio laid down by the jurisdictional High Court that the cost of input services that forms part of (finished goods), Cenvat credit availed in respect of outdoor catering service and rent a cab service is eligible (to credit) as input services. 
24 Adhikasri Electromech 2016-TIOL-1611 The contention of the appellant that in various decisions of other manufacturers to whom notices were issued pursuant to the same investigation, the demand has been set aside, is material for consideration - penalty imposed against KMC in which, KMC was a co-noticee, has also been set aside - There is no dispute that KMC was a supplier of raw material to AEPL - question that remains unexplained by department is that, if such huge quantity of raw material was not supplied to AEPL and only invoices were issued is to be believed, then how AEPL was able to manufacture finished products during the relevant period - revenue contends that AEPL procured the inputs form local market - there is no iota of evidence to establish this - The whole case is founded on statements and private records of third party, the manager of KMC, Shri. Prabhakar - The Tribunal in the case of CCE, Jaipur Vs Shiv Prasad Mills (P) - 2015-TIOL-1907-CESTAT-DEL held that the allegation of duty evasion cannot be made basing upon private records and statement of a third party unless cross examination of such person is allowed - It is settled law that confessional statements have to be supported by independent evidence to establish the charge of clandestine manufacturer and evasion of duty 
25 Manishreni Ferro Alloys 2016-TIOL-1640-CESTAT HYD The department has no case that the MS items/subject items received in the factory were diverted in any manner - no merit in the contention of the revenue that though the factum of availment of credit on steel items and welding electrodes was stated to be reported to the department by way of submission of copies of the invoices along with returns, the purpose/place of use of the said items was never intimated to the department - no provision/column in the ER-1 return to mention the purpose/place of use of inputs/capital goods - When returns are filed, it is for the proper officer to conduct scrutiny of the returns and inform the assessee about defects - In the present case Revenue has not stated what prevented the proper officer from conducting scrutiny of returns and issuing show cause within normal period - The Commissioner (Appeals) has rightly applied the judgment rendered by Hon'ble Apex Court in the case ofContinental Foundation Jt Venture Vs CCE, Chandigarh-1 - 2007-TIOL-152-SC-CX - The Hon'ble court in the said case held that mere omission to give correct information is not suppression of facts - Revenue has miserably failed to establish the allegation of suppression of facts - demand raised invoking extended period is unsustainable.
26 Kamini Metalics 2016-TIOL-1638 CESTAT HYD  First issue that poses for consideration is the credit availed on MS items - the appellant has not used the subject items on which credit was taken for construction of shed or buildings - verification report establishes that the subject items were used for manufacture of capital goods - no evidence to establish that appellants used it for civil construction works - In India cements Ltd Vs CESTAT, Chennai 2015 - 2015-TIOL-650-HC-MAD-CX the Hon'ble High Court has categorically held that credit is admissible on MS items used for fabrication of structural support which are integral part of the machinery without which they can neither be erected nor be functioned - Hence, the credit availed on MS items is admissible - with regard to 100% credit, appellant erroneously availed the credit and on knowledge of the mistake reversed the credit even before utilization - as the appellants are entitled to avail the credit next year, appropriation of the 50% credit is not legal and proper - however, they are liable to pay interest until the date of reversal as they contravened the provisions of Cenvat Credit Rules, 2004 - no ground for penalty as they are eligible for the credit in subsequent year - the credit availed on MS items is admissible - impugned order to the extent of disallowing credit on MS items and ordering recovery of credit, interest and imposing penalty is set aside - appropriation of excess credit availed on capital goods is set aside - penalty imposed under Rule 15(1) of Cenvat Credit Rules, 2004 is also set aside - interest liability till the date of reversal of credit is sustained
27 Jeypore Sugar 2015-TIOL-2723 Held - on perusal of records, it was noticed that the relationship between buyer and seller doesn't appear to have influenced the price because goods were being sold at the same price when the duty was chargeable at specific rate. - molasses under price and distribution control with increase in price having been consequence of decontrol - price was contracted for a longer period of time and hence acceptable in contradistinction with open market sales - no reason to interfere with impugned order
28 Shrinidhi Corporates 2016-TIOL-1407 Mad HC Taking into consideration the fact that the departmental appeal against the order of the Commissioner (Appeals) has been presented before the CESTAT within the period of limitation and the appeal having been numbered, the respondents should be given a reasonable time to move the Petition for Stay before the CESTAT, failing which the goods should be released in terms of the order passed by the Commissioner (Appeals) - the respondents are directed to release the goods in question by assessing the Bills of Entries in terms of the order passed by the Commissioner (Appeals), after a period of thirty days from the date of receipt of a copy of this order - This time is granted to the Department to enable them to move the Petition for Stay before the CESTAT, if so advised in the interregnum - If the respondents are unable to obtain any orders of stay from the CESTAT, they shall, on expiry of the 30th day from the date of receipt of a copy of this order, assess bills of entries in terms of the order passed by the Commissioner (Appeals) and release the goods within a period of two days therefrom
29 Jayajothi Cements 2016-TIOL-1780-CESTAT Customs - Import of coal - Steam coal or Bituminous coal - Dispute related to Bills of entry and not shipping bills - Re-assessment of Bills after lapse of one year - Bar of limitation - Held, use of the expression shipping bills by the Commissioner cannot be considered to be a typographical error and the same reflects upon non-application of mind by the Commissioner - More so, Revenue and not the assessee initiated proceedings for re-assessment of the Bills of Entry - Bills of Entry if, according to the Revenue, cannot be re-assessed, then the original assessment which was in favour of the assessee has to be adopted - Order of the Commissioner confirming for full period, unsustainable.
30 Sree Royalaseems Green Energy 2016-TIOL-1812-CESTAT Held - prices are finalized after clearance of transformers - appellant receives bulk amounts in cheques, not invoice wise from DISCOMS - in case of negative variation, only issue negative price variation approval letters - didn't examine the documental evidence provided by the appellants - fit case to be remanded to reexamine if refund claim is hit by unjust enrichment - appellant directed to produce Chartered accountant certificate
31 Komatsu India Pvt Ltd 2016-TIOL-1844-CESTAT-Chennai Commissioner (Appeals) has clearly observed that demand of interest is sustainable even though appellant did not utilize the credit and paid the same voluntarily - This fact would go to show that the appellant has only availed the credit but not utilized the same - In the ruling relied by the appellant in the case in T.V.Sundram Iyengar & Sons Ltd. Vs CCE Madurai , the Tribunal has held that for non-utilization of cenvat credit there shall not be levy of interest - In that case, there was a remand as verification with regard to utilization or non-utilization was involved - However, in the present case, the Commissioner (Appeals) has clearly held that non-utilization is not a criterion - the interest is not payable as there has been only an availment and no utilization - It is well settled that when there has been only availment and no utilization and when there is no loss to the Revenue, the question of demand of interest does not arise 
32 Navadurga Billets 2016-TIOL-1945 Central Excise - CENVAT Credit - MS Items - Credit denied on MS items such as plates, beams, channels, angles by holding that they do not qualify as capital goods - Appellant produced Chartered Engineer's certificate in which the quantity wise use and manner of use was reported and photographs to show the use of MS items in fabrication of capital goods in plant and machinery and technical and support structures of machinery and submits that except the one invoice dt. 19.12.2009, all other invoices are prior to 7.7.2009 - In ' India Cements Ltd.',case it was held that MS items used for fabrication of structural to support various machines were necessary, as without such structural support the machinery cannot be erected and could not function and that credit is admissible - In ' SLR Steels Ltd.', case it was held that credit is admissible on steel and cement items used in manufacture of capital goods/storage tank - In 'Mundra Sports & SEZ Ltd.' case it was clarified that the amendment to Rule 2(k) of CCR 2004 introduced w.e.f 7.7.2009 could have only prospective application and observed that 'the Tribunal while deciding'Vandana Global Ltd.' case, has not mentioned in the judgment as to what is the aid resorted to by the Tribunal to hold that the amendment to Rule 2(k) has retrospective effect' - Decision relied upon by Revenue in ' Saraswati Sugar Mills Ltd.' , case was with regard to erstwhile MODVAT Rules and is not applicable - Hence, Credit on MS items listed in SCN for the period 2007-08 and 2008-09 is allowed and credit on MS items listed in SCN for the period 2009-10 is disallowed - Appeal disposed of
33 Icomm Tele 2016=TIOL-1921 Held: Excess amount paid is not in dispute - it is to be borne in mind that the appellant is liable to pay service tax for the transactions on the basis of reverse charge mechanism - no question of the incidence of duty/tax being passed on to another - Without an iota of evidence the Commissioner (Appeals) has concluded that the refund is hit by unjust enrichment merely because the amount was said to be shown as expenditure - constraints faced in accounting cannot be a ground to assume that the duty has been passed on to another - appellant also produced Chartered Accountant certificate - refund amount is not hit by the doctrine of unjust enrichment - order directing to credit the sanctioned amount to Consumer Welfare Fund is not sustainable - eligible to get the sanctioned amount -Order set aside to the extent of ordering the sanctioned amount to be credited to Consumer Welfare Fund 
34 Suzlon 2016-TIOL-2027-CESTAT Bang prayer for extension of time to claim refund can be made in refund application- the notification should be liberally interpreted and condonation of delay should be considered- as the scheme was new and led to confusion, it is held that the impugned order is set aside and both appeals are remanded to the adjudicating authority to decide it on merits- adjudicating authority was asked to decide the matter in 3 months 
35 Sunbeam Generators Pvt Ltd 2016-TIOL-2230-CESTAT Central Excise - Cenvat credit of tax paid on Courier services availed for receiving and sending factory related business documents, amount paid towards Royalty charges, and ISD invoices held admissible - Credit availed by appellant held is in order - Consequently, the impugned order, penalty and interest set aside
36 Spandana Spoorthy 2016-TIOL-2284-Hyd Service Tax - Appellants are engaged in the Micro Finance Business, extend loans to people below poverty line and also facilitate insurance to their members who borrow money from them and acted as Money Remittance Sub-Agent with M/s Weizmann Forex Ltd till June, 2009- On scrutiny it emerged that they had received income for rendering different financial services, however, were not paying service tax thereon from the beginning - issued notice proposing demand of service taxalong with interest and imposition of penalties under various provisions - Adjudicating authority confirmed demand , equal penalty under Section 76 of the Finance Act, 1994 as also penalties under Sections 77and 78 imposed - amount deposited before issue of the notice, was appropriated towards the service tax and interest demands - Cenvat credit cannot be availed by the appellant based on documents prior to the date of obtaining service tax registration, therefore the amount debited from such wrongly availed Cenvat credit will have to be paid in cash by them - Hence, the present appeal.
37 Komatsu 2016-TIOL-2360 Mum CX - Importing parts of dumpers in bulk and subjecting the same to packing, repacking in unit containers/packages marked with 'Komatsu' brand and affixed with MRP tags - as goods are parts of 'automobiles', activity is manufacture u/s 2(f)(iii) of CEA, 1944 and chargeable to duty - cum-duty & CENVAT benefit to be extended; demand not hit by limitation - matter remanded for re-working demand and consequent imposition of penalty and interest - reasons given for imposing penalty u/r 26 of CER, 2002 on GM(Finance) are bland & therefore penalty cannot sustain - Appeals disposed of: CESTAT [para 8, 9, 10, 12, 13] - Appeals disposed of : MUMBAI CESTAT
38 Aqua Designs 2016-TIOL-2217-HC WP Against OIO- Appellate remedy
39 Rayalaseem Green Steloy 2016-TIOL-2532-Hyd Central Excise - Cenvat Credit on structural items as capital goods - Admissibility - MS items like Angles, Channels, Beams, Joists, Flats, H.R. Coils etc used by appellant in fabrication of structural supports, sheds to capital goods during the relevant period between September, 2004 and May, 2006 - Whether amendment of Explanation to Rule 2(k) of CCR 2004 is retrospective in nature - On facts held that appellant availed credit on bonafide belief that credit is admissible during the period in question in view of the issue being contentious and several rulings in favor of assessee - Penalty imposed in the circumstances is unjustified as such is set aside while confirming the demand and interest - Revenue appeal to the extent is rejected.
40 Ranger 1 Security 2016-TIOL-2503 HC Service Tax - Security services - Default in payment of service tax - Exparte order confirming demand - Validity - Petitioner alleges non-service of show cause notice at the registered address as such deprived of opportunity to defend - Held, considering the quantum of demand involved, petitioner directed to pay Rs.5 Lakhs toward disputed tax liability to treat the proceedings as show cause notice and to allow one more opportunity to submit reply notice along with supporting documents - Respondent directed to acknowledge reply and fix date of hearing and adjudicate afresh in accordance with law
41 Rajsriya Automotiv Industries 2016-TIOL-2503 HC Supply of drivers - Manpower supply service - Absent required proof that hiring of drivers operating fork lift in production area has integral connection with the manufacturing of final products as such qualify as an input, matter remanded as to the adjudicating authority to determine the admissibility of credit on supply of Drivers Service
42 Rajsriya Automotiv Industries 2016-TIOL-2503 HC Supply of drivers - Manpower supply service - Absent required proof that hiring of drivers operating fork lift in production area has integral connection with the manufacturing of final products as such qualify as an input, matter remanded as to the adjudicating authority to determine the admissibility of credit on supply of Drivers Service
43 Megha Engineering 2016-TIOL-2862-Hyd Central Excise - Cenvat Credit of excise duty paid on pipes used in pipeline laying for public irrigation works, in view of binding precedent allowed - Impugned order denying credit set aside.
44 SKS Ispat 2016-TIOL-3304-Del Cenvat Credit on outward Transportation
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Reported Cases 2015

S.No.

Name of the part

TIOL

Issue in brief

1 Win Enterprises 2015-TIOL-117 Larger Bench of the Tribunal vide Misc. Order No. 42711/2013 dated 18.11.2013 = 2013-TIOL-1777-CESTAT-MAD-LB held that the cutting of carpet rolls into smaller sizes and subjecting such cut sizes to a process of stitching linings at the edges would not amount to manufacture nor result in emergence of a distinct independent commodity, exigible to duty under provisions of Section 2(f) of the Central Excise Act, 1944 – in view of this ruling, impugned order set aside.
2 WTI Industries 2015-TIOL-129 Held: adjudicating authority has partially dropped the demand in respect of services provided to TCS and also allowed the cum-duty benefit and appropriated service tax paid under IT services - applicant's main contention is demand made under the category of (a) Manpower supply services (over Sep 2005-Jan 2010); and (b) Business Support Services (over Jun 2006-Jul 2008) - applicants are contesting on the limitation issue in respect of demand under BSS - Even after excluding the demand under extended period, Rs. 36,36,969/- under BSS falls under normal period - applicant has not made out a strong prima facie case for waiver of pre-deposit of entire amount of tax along with interest and penalty; and is directed to pre-deposit a sum of Rs.20,00,000/-(Rupees Twenty lakhs) within a period of eight weeks
3 Pricol 2015-TIOL-184 / 2015 (38) STR 668 No finding on the genuinity of credit availed and distributed by ISD - substantial law in Rule 2(m) shows appellant eligible for credit on facts, disputed only on procedural law - procedure is not tyrant of the law but is servant thereof and justice cannot be denied for reasons attributable to the procedural law, as ruled by the Apex Court in the Sambhaji Vs. Gangabai case - credit availed on basis of ISD allocation allowed. 
4 BMM Ispat 2015-TIOL-263 Cus – Appellant imported coal and classified it under CTH 2701 1920 as "Steam Coal" while Revenue classified it as "Bituminous Coal" under CTH 2701 1200 - As per note 2 to Chapter 27, coal having a volatile matter exceeding 14% (on dry, mineral-matter-free basis) and calorific value equal to or greater than 5833 Kcal/Kg (on moist, mineral-matter-free basis) would qualify as "bituminous coal" - Coal imported by appellant, prima facie, merits classification under CTH 2701.12 as "bituminous coal" - Inasmuch as assessments are provisional, question of time bar would not arise - Demand of duty confirmed in impugned order prima facie appears to be sustainable - Appellant is directed to make a pre-deposit of Rs.8.5 crore: CESTAT [Para 2, 4.1] - Pre deposit ordered
5 Supreme Petrochem 2015-TIOL-282 Central Excise – Stay/Dispensation of pre deposit - CENVAT Credit of Service Tax paid on outward transport – As seen from the purchase orders and the copies of the invoices submitted by the appellant along with appeal papers and the contract, it is stated that "door delivery" to the buyers premises - The appellants have discharged duty on the total value of the goods inclusive of freight and insurance - Considering the decisions of High Court and the Tribunal, prima facie the appellants have made out a case for waiver of pre deposit and stay - Pre deposit waived and recovery is stayed till the disposal of the appeals
6 Bayforge 2015-TIOL-301 Out of the total credit disallowed, major portion relates to insurance service, which not only relates to the employees but also to the plant, machinery and stocks - applicant has made out a prima facie case for waiver of pre deposit except for corporate membership services and photocopier services; and is directed to pre deposit a sum of Rs.30,000/- within a period of four weeks.
7 Sify 2015-TIOL-525 Well settled that amendment to law can be made retrospectively even bringing an amendment to an Explanation appearing in the statute - However, the nature and character of the amendment decides whether such amendment is declaratory or clarificatory and accordingly whether retrospective or not - A declaratory law is always prospective while clarificatory law is retrospective in nature - also well settled law that statute making amendment to the effect of declaration of liability is not normally retrospective unless otherwise such intention expressed by legislature - addition to the Explanation (C) to sub-section (4) of Section 67 with the proposition "and" throws light on the nature and character of both the clauses thereof; categorically bringing out that recording of transactions in two different pattern was enacted from two different dates - Therefore, the said addition is prospective in nature, applicable from the day that was enacted in the statute book - Accordingly, there shall be no liability to levy of interest on the gross value of taxable service relating to the period prior to that date.
8 IJM 2015-TIOL-578 Payments made to sub-contractor omitted initially by appellant on wrong advise - Subsequently filed revised returns showing reversal of entire Cenvat credit taken as well as including payment made to sub-contractor for the purpose of service tax -Amount of service tax paid by appellant after abatement towards liability fulfilled the requirement for payment of service tax
9 Lanco Infratech & Others 2015-TIOL-768 / 2015 (38) STR 709 EPC
10 HCL 2015-TIOL-1188 In respect of penalty under Section 11AC, issue is stands settled by the Supreme Court in case of Dharamendra Textile Processors & Ors case and Rajasthan Spinning & Weaving Mills case – Provisions of Section 11AC are mandatory and there is no element of discretion – With regard to interest, the provisions of Section 11AB of the Central Excise Act came into effect from 28.9.1996 by Finance Act, 1996 - There is no escapement for the assessee from payment of interest under Section 11AB of the Act, even though the assessee had paid the duty prior to issuance of show cause notice. Accordingly, the order of the Tribunal deleting the interest levied under Section 11AB of the Central Excise Act is also liable to be set aside – Revenue appeal is allowed
11 S R Enterprises 2015 (38) STR 835
12 Ajuba Solutions Pvt Ltd 2015-TIOL-973 Record does not reveal connection of air travel to the service provided nor the travel insurance; vehicle insurance does not exhibit whether that is in any way relate to output service provided - Revenue succeeds on all these three counts - But mediclaim for employees is integrally connected to secure their services to render provision of output service; credit admissible - computers imported warranted availing of services of CHA; computer so imported being used for provision of output service, there should not be denial of Cenvat credit of service tax paid thereon and credit of service tax paid is allowed 
13 Addeco Flexione 2015-TIOL_1156 Service Tax - Tax liability and interest discharged - Delay in payment of service tax sufficiently explained and nothing to indicate of suppression of facts or fraud - Show cause notice ought not to have been issued - Appellant made out his case both under sections 73(3) and 80 for waiver of penalty - Appeal allowed with consequential relief. 
14 Sunbeam Generators 2015-TIOL-1146 Central Excise - Exemption - appellants are engaged in the manufacture of Diesel Generating Sets and removed 2 Nos. of Diesel Engine to HCIL without payment of Central Excise duty by claiming exemption under Notification No.108/95-CE dt. 18.8.1995 based on the certificate issued by Rail Vikas Nigam Ltd., Govt of India - Exemption proposed to be denied in SCN, allowed by adjudicating authority, denied by Commissioner (Appeals) on Revenue's appeal; and agitated herein.



Held: Adjudicating authority in his OIO dropped proceedings by relying on Tribunal's order in the case of Cater Pillar India Ltd. whereas the Commissioner (Appeals) while allowing Revenue's appeal observed that Revenue has already filed appeal before the Chennai High Court - Chennai High Court in turn dismissed the Revenue's appeal by upholding Tribunal's order - Following the HC order, impugned order set aside.
15 IMP Power 2015 (37) STR 603 Works Contract Composition - Value of goods supplied under different contract, not to be added prior to 07.07.09 - Stay granted
16 BSES Kerala Power 2015-TIOL-1523 Customs - Appeal - Maintainability of appeal under Section 130 of the Customs Act, 1962 -  The issue pertains to rate of duty that is payable by the respondent - In view of the Section 130, which exempts appeal to be entertained by the High Court in relation to rate of duty, the objection as raised by the respondent on maintainability of the appeal is liable to be sustained in view of the decision of the Supreme Court Navin Chemicals case, which decision has been followed in Commissioner of Central Excise - Vs - Vadapalani Press - 2014-TIOL-2208-HC-MAD-CX. (para 6)
17 Wisdom Steel 2015-tiol-1347 Central Excise - Non-manufacturing activity - Cenvat Credit availed on inputs in the process - Held, credit cannot be disallowed when assessee used the same for payment of duty on its final product, when there was no requirement of payment of duty on the final product - Question of reversal of Cenvat does not arise - Impugned order requiring reverse of Cenvat set aside 
18 Linkwell 2015-tiol-1373 Suo motu credit of CENVAT reversed earlier held does not require filing of any refund claim - No dispute about the recredit of the said entry - Denial of the same by the department on technical ground of non-filing of refund application is neither proper nor justified more so when such recredit was made upon intimation to the Revenue - It is nothing but correction of entries in the accounts maintained by the assessee which does not involve any 'lis' and any legal issue requiring the department to interfere - Impugned order set aside
19 Anabond Ltd 2015-TIOL-1502 Appellate order sent by speedpost, but no acknowledgement on record - appellant acted immediately when recovery proceedings initiated; delay condoned - The appellate order demonstrates piecemeal reading of the notification, which not only grants exemption to the service provider providing service to a developer of SEZ but also service provided to a unit of SEZ for consumption thereof within the said location - the authorities erroneously constructed the purview of the notification - There is no finding that the appellant is not a management consultancy service provider to a unit in SEZ - Appellate authority did not doubt status of the appellant; therefore, denial of the benefit of the notification to the appellant shall result in mockery when the appellant satisfies condition of the notification
20 A. Thankavel 2015-TIOL-1440 Central Excise - Refund under Rule 5 of CCR 2004 - applicant is a manufacturer of fabrics clearing goods to the garment manufacturers under Notification No. 43/2001-CE (NT) dated 26.06.2001 as amended - claim rejected in adjudication on the ground that the appellant has not submitted the proof of documents of exports from the claimant's premises and also they have not produced sufficient evidence for the same - same upheld by Commissioner (Appeals) and agitated herein. Held: Both the authorities below have rejected the refund claim on the grounds that they are not the actual exporters and also they failed to produce the documents as per the notification No. 11/2002 - no dispute on the fact that the garment exporters are duly registered with the department and executed necessary bond and followed the procedure prescribed under the said notification; annexure-I issued by the garment manufacturer is duly certified by the jurisdictional Asst. Commissioner for procurement of fabrics from the appellant without payment of excise duty - goods were supplied to the garment manufacturer under the above notification for use in the manufacture and export of final products; clearance of the goods under the said notification by the appellants is ultimately meant for export - for claiming refund under Rule 5 read with Notification No.11/2002 in para-4 - Condition No.4 of the notification not applicable to the appellant as they have not exported directly but cleared duty free to the garment manufacturer by following the conditions under notification No. 43/2001 and also by following Central Excise (Removal of goods at concessional rate of duty for manufacture of excisable goods) Rules, 2001 and the garment exporter ultimately exported the goods [Para 5]
Identical issue has been decided in the case of SVM Textile Mills, Jain Textiles Industries and Pioneer Processing wherein refund was allowed - Tribunal consistently held that that even though the appellant is not an exporter but the goods were cleared under the notification No. 43/2001, which is intended for manufacture of garments and for export out of India, they are eligible for refund under Rule 5 of CCR - Relying on the same, held that the appellants are eligible for refund of unutilized cenvat credit under Rule 5 of CCR; impugned order is set aside
21 City Travels 2015-TIOL-1619 Notification No. 20/2009-ST dated 07.07.2009 has been given a retrospective effect from 01.04.2000, vide Sec 75 of the Finance Act, 2011 enacted on 08.04.2011 - appellants had operated contract carriage for carrying passengers from point to point as is evident from the photocopies of tickets issued by the appellant to the individual passengers; exemption available; impugned order set aside
22 Vardariya Exports 2015-TIOL-1613 It is established fact that self-same licence has been dealt by two adjudication orders in respect of self-same cause, which is not permissible in law - Tax was not being multiple taxation law, impugned order passed against first appellant is unsustainable and set aside - All other appeals having emanated from the cause involved in appeal nos.C/00211/2008 and that appeal having been decided with the result aforesaid, the consequence of adjudication in these appeals are also set aside
23 Godrej Salarlee 2015-TIOL-1720 The adjudicating authority has denied the credit solely on the ground that their registered office is not authorized to pay service tax on GTA after taking centralized registration at Mumbai - he has discussed only on the provisions of centralized registration and held that service tax paid by the corporate office is not eligible as cenvat credit availed by the appellant - no dispute on the fact that appellant's registered office at Mumbai obtained centralized registration for discharge of service tax on various services including GTA services; and that the registered office is also registered as ISD - Tribunal in the case of Rohit Surfactants, has discussed the identical issue and held that the availment of cenvat credit by the respondent was allowed where even the centralized registration was rejected by the department - Number of decisions pronounced by judicial forums holding that admissibility of credit cannot be questioned at recipient end - impugned order set aside
24 ISS Catering 2015-TIOL_1741  The adjudicating authority confirmed the service tax and denied the exemption to supplies made to SEZ on the ground that contracts have not been renewed for a particular period - Notification No.4/2004 dt. 31.3.2004 and 9/2009 dt. 3.3.2009 clearly exempts from payment of service tax on various services provided to SEZ; agreements, bills, invoices indicate prima facie appellants are entitled for exemption under above notification - sale of food in food courts is not covered under catering services but falls under restaurant services - Regarding demand made on unbilled revenue, though it was reflected in balance sheet as per accounting standard, the amount was realised only in the next financial year and during the relevant period the service tax is to be paid only on realisation of amount - in respect of demands on supplies to SEZ, food courts and unbilled revenue, appellant prima facie has made out a case for waiver of predeposit - However, as regards the bad debts, the dispute is for the year 2011-12 and considering the amount involved, predeposit of Rs.5,00,000/- (Rupees five lakhs only) is ordered to be paid within 4 weeks.
25 Celebrity Fashions 2015-TIOL_1732 Central Excise - Refund - Claim for Rs.42 lakh under Rule 5 of Cenvat Credit Rules 2004 rejected by original authority - Commissioner (Appeals) held Rs.33 lakh admissible subject to verification by original authority and Rs.9 lakh inadmissible - Tribunal remanded the disputed 9 lakh to original authority - Meanwhile original authority passed de novo order in respect of Rs.33 lakh, granting refund to the extent of Rs.28 lakh and denying to the extent of Rs.5 lakh; same agitated by Revenue before Commissioner (Appeals) who allowed the departmental appeal, now agitated herein.



Held: It is ordered that the matter shall go back to Commissioner (Appeals) who shall within a month of making the application by assessee fix the time of hearing and expose the range report to assessee for rebuttal; consider entire facts evidence and law, and pass appropriate order 
26 Nutrine Confectioneries 2015(39) STR 866
27 Sundaram Auto Components 2015-TIOL-2192 HC Credit availed on inputs. Cleared to job worker. Who paid duty by including the value of inputs supplied. Such duty also availed as credit. No double benefit.
28 Top Victory 2015-TIOL-2723 Application for Release of goods & Early Hearing - Appellant-importer of computer monitors prays for release of detained goods by invoking Rule 41 -Appellant duly complied with amended provisions of Section 129E of the Customs Act concerning the two appeals by paying statutory pre-deposit which is apparent from Customs receipt showing pre-deposit for both the appeals - Hence, no valid reason for detaining live consignments of monitors for realizing arrears of revenue pertaining to the two appeals - Detained goods are to be released subject to payment of customs duty on them, if not paid already - Disputed CVD amount involved in all the appeals is more than Rs.1 cr. and has recurring effect as regular imports are being done, hence EH application is allowed. (paras 2, 4, 5)
29 Megha 2015-TIOL-2767 Credit availed on inputs for mfr of pipes and duty paid on pipes. Pipes used in WCS for which ST paid under composition scheme. In order.
30 Nebulae Healthcare 2015-TIOL-261 SC Central Excise - SSI Exemption - Exemption for own goods and duty payment with CENVAT Credit for branded goods - Permissible: It is not in dispute that the respondents - assessees fulfill eligibility conditions for availing the benefit of SSI exemption under the Notifications. However, in addition to manufacturing goods on their own account, they are also doing job work of manufacturing goods of certain other parties on job work basis. The goods manufactured for third parties bear the brand name of those third parties and in respect of such goods manufactured for third parties, the assessees paid the normal duty of excise but at the same time availed the benefit of MODVAT /CENVAT credit as well. - para 2


2015 (325) ELT 431 SC So far as manufacture of branded goods of third party on job work basis by the SSI Unit is concerned, they are to be dealt with differently in the sense that they do not come within the ambit of exemption on which normally excise duty, as per the provisions of the Act, is payable. As a sequitur, it also follows that once excise duty is paid by the manufacturer on such branded goods manufactured, the brand name whereof belongs to another person, on job work basis, the SSI Unit would be entitled to CENVAT/ MODVAT credit on the inputs which were used for manufacture of such goods as on those inputs also excise duty was paid. To put it otherwise, these branded goods manufactured by the SSI Units meant for third parties are regulated by the normal provisions of excise law and will have no bearing or relevance insofar as availing the benefit of those exemption notifications in respect of its own products manufactured by the SSI Units is concerned . - para 17
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Reported Cases 2014

S.No.

Name of the party

ELT

STR

TIOL

Issue in brief

1 Interplex Electronics
2014 (33) STR 56
Electroplating amounts to mfr - NO ST under BAS; Alternatively 8/2005 exemption is available as goods cleared by EOU are not unconditionally exempt
2 Agarvanshi aluminium 2014 (299) ELT 83

Customs Valuation -Computer print outs - Sec. 138 C - LME Price cannot be the sole basis.
3 G. Ramamurthy Constructions

2014-TIOL-6 Inclusion of free supply materials value, for the purpose of abatement - partial pre deposit ordered in view of conflicting decisions
4 Win Enterprises 2014 (299) ELT 206 LB

Cutting of carpet rolls into smaller sizes does not amount to manufacture
5 Megha Engineering

2014-TIOL-134 Service Tax – Stay/Dispensation of pre-deposit – Laying of pipelines including associated earth work, excavation, supply, laying, joining, testing and commissioning of water pipelines of various diameters; civil works involving construction of pumping stations for Government – Prior to 01.06.2007, prima facie, the demand under Erection, Commissioning Installation is covered by the Tribunal decision in case of Indian Hume Pipe Co Ltd . For the period subsequent to 01.06.2007, prima facie case made out against demand under sub-clause (e) of definition of works contract under Section 65(105)(zzzza) - P rima facie, the services not being commercial or industrial purposes are excluded from exigibility to service tax under sub-clause (b) of Section 65(105)(zzzza) of the Finance Act, 1994 – Waiver of pre-deposit granted and all further proceedings stayed.  
6 ICMC Corporation Ltd

2014-TIOL-121-HC CE - CENVAT Credit - Suo motu credit of wrongly debited amount - No refund Claim required - Credit by assessee upheld: The objection of the Revenue herein is that even for a reversal of an entry, the assessee should have followed Section 11B of the Central Excise Act, 1944 lest there would be unjust enrichment. Consequently, there could be no such thing as suo motu reversal, except through a petition made under Section 11 B of the Central Excise Act, 1944. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. No good ground to hold that it was a case of refund of duty falling under Section 11B of the Central Excise Act, 1944 and that the assessee was to comply with the provisions of Section 11B of the Act. The view of the Tribunal that the assessee should seek reversal in the appropriate judicial forum, if the assessee was aggrieved by the earlier order herein does not arise at all. Even a cursory reading of the order of the Tribunal in the earlier round of litigation would show that it accepted the assessee's case of suo motu reversal of the entry. That being the case, the subsequent conduct of the assessee for a follow up action on an amount of Rs.3,21,308/-, which is only an account entry adjustment, technically speaking cannot be taken exception to either by Tribunal or for that matter by the Revenue. Plea of the assessee that on a technical adjustment made, the question of unjust enrichment as a concept does not arise at all for the assessee to go by Section 11B of the Central Excise Act, accepted. Tribunal Order Set Aside. - Appeal Allowed : MADRAS HIGH COURT
7 Sunil Hitech

2014-TIOL-160 benefit of 12/2013; sub contractors liability to service tax; issue referred to third member
8 Pyro Electric 2014 (300) ELT 528


9 Hindustan coca Cola

2014-TIOL-349-CESTAT, Mad Central Excise – Cenvat Credit – credit on the bottles used for marketing soft drinks which get destroyed in the manufacturing process or transport of the goods - demands confirmed in adjudication, Commissioner (Appeals) dismissed appeal for non-compliance with stay order, and agitated herein. Held: Commissioner (Appeals) has asked for pre-deposit on an issue which is already decided in favour of the assessee. - discretion vested upon him under section 35F of the Central Excise Act 1944 should have been exercised more judiciously - there was no justification to call for any pre-deposit for hearing the appeal before Commissioner (Appeals) - matter is remitted to the Commissioner (Appeals) after setting aside the impugned order for deciding the matter on merits after complying with principles of natural justice but without insisting of pre-deposit under section 35F.
10 MMS Steels

2014-TIOL-343 Held: Based on the opinion of Government Examiner of Questioned Document, Hyderabad, it can be concluded that the appellant firm received unaccounted scrap (without documents) from scrap supplier - Chartered Engineer's opinion on electricity consumption is additional evidence on clandestine manufacture / clearance - Managing Director and Driver of lorry admitted clearances as noted in the chits - Mahazar clearly recorded that the day's production was excluded from computation - offence established - demand of duty along with interest upheld; penalty reduced to the extent of 25% of duty to be deposited within 30 days from the date of receipt of this order, if not so deposited, penalty equal to duty will be payable - Confiscation of the goods is upheld and imposition of redemption fine is reduced to Rs.30,000/- - The penalty imposed on the Managing Director is also upheld - Accordingly, the appeal of Appellant No.1 is disposed of in the above terms and the appeal of Appellant No.2 is rejected.
11 SVM Textile Mills

2014-TIOL-357 Central Excise - Refund - claims filed under the provisions of Rule 5 of the Cenvat Credit Rules, 2002 of accumulated credit resulting from export clearances effected directly / through merchant exporter / through other manufacturer-exporter - proposals to reject the claims on grounds that appellant failed to furnish evidence of non-availment of drawback; proof of export; inability to use the credit for DTA clearances; and method of computation - claims rejected in adjudication primarily on ground that proof of export not properly correlated; and partially upheld by Commissioner (Appeals); agitated before Tribunal in the first round of litigation wherein appeal was allowed - consequent refund claim partially rejected in adjudication and agitated before Commissioner (Appeals) in the second round of litigation, who rejected the appeal on a fresh ground that the appellant has claimed refund on excise duty paid in the capacity as a dealer and not as a manufacturer - also held that Rule 5 inapplicable and hence the appellant was not eligible for refund; culminating in the instant appeal.
12         Held: in the first round of litigation, the Commissioner (A) had allowed refund claims for all goods cleared from the factory for export and rejected the refund claims only in respect of the goods which were cleared from the premises of the merchant exporters or other manufacturers - Tribunal allowed appeal without any qualification, implying that the entire refund which was originally sought merited sanction - a second round of examination of eligibility for refunds was prima facie unwarranted; also, the adjudicating authority as well as the first appellate authority have relied on new grounds for rejecting the refund claims without even putting the appellant on notice - on the basis of principles of natural justice, the orders in the second round of litigation are not maintainable.

        Even on merits, Central Excise Rules, 2002 and Cenvat Credit Rules, 2002 as amended by the Notification No. 34/03-CE gave an option to the dealer of textile goods to pay excise duty as if he was a manufacturer and to comply with all the rules and regulations - it is to be understood that the option is in respect of all matters related to payment of duty as well as claims of refund consequent to exports - arguments made by the Revenue inconsistent and not in conformity with the policy of the Government to allow export of goods without incidence of taxes - appeal allowed with consequential benefit subject to the condition that the impugned Cenvat credit has not been utilized by the appellant for payment of duty during the period from date of filing of the claims to the date of sanction of the refund.
13 pricol
2014 (33) STR 529
Business Exhibition service - Held outside India - stay granted
14 NCC

2014-TIOL-498 Mobilisation Advance - ST liability - PD ordered
15 IVRCL

2014-TIOL-507 Service Tax - Examination of merits of the appeal not warranted since appellant has already lost his appeal on the maintainability - Matter remanded back to Commissioner (Appeals) with directions to dispense with pre-deposit and to hear the matter on merits, so that appellant would not be deprived of process of justice.
16 Indofab

2104-TIOL-524 Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit - Disallowing of Cenvat Credit - Prima facie, Revenue conclusion that the inputs have not been received in the factory and Appellant have availed Cenvat credit wrongly, is not acceptable - In absence of other evidences, evidences that non-passing of the vehicles through the check-posts or the vehicle numbers mentioned in the invoices were incorrect or appellant could not substantiate input receipts in the factory, cannot be ground to deny the CENVAT credit, when the basis of sale is ex-delivery - Waiver of pre-deposit and stay of recovery ordered.
17 Sunil Hitech

2014-TIOL-541 ST - Appellant is liable to pay service tax on the taxable services rendered by him in the capacity of a sub-contractor - eligibility to the benefits of Notification No. 12/2003-ST and 1/2006-ST to be examined by adjudicating authority - Matter remanded: CESTAT by Majority





Limitation - Extended period of time is invokable as the appellant has suppressed facts - Consequently, appellant is also liable to penalties under sections 76, 77 & 78 of the Finance Act, 1994 - quantum of penalties to be re-determined after re-computing the service tax demand - Matter remanded back to the adjudicating authority: CESTAT by Majority
18 Cassel Research Laboratories

2014-TIOL-544 Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit - Applicant availed CENVAT Credit and depreciation on same amount - Whether depreciation claimed wrongly during one year can be rectified after four years by writing back depreciation claimed and its effect on CENVAT credit taken and utilized is debatable issue - Applicant prima facie gained pecuniary advantage for some time against Rule 4(4) of CENVAT Credit Rules - Pre-deposit of Rs.10,00,000/- ordered.
19 Spandana Spoorthy

2014-TIOL-558 Service Tax - Stay/Dispensation of pre-deposit - CENVAT Credit - Business auxiliary service - Whether CENVAT credit could be availed on input services received prior to Appellant's Service tax registration, is the issue to be decided in hearing - Prima facie not persuaded with the petitioner's claim for immunity u/s. 73 (3) of the Finance Act, 1994 - Pre-deposit of Rs. 2,20,00,000 ordered.
20 Pos Hyundai

2014-TIOL-484-HC Penalty - s.11AC of CEA, 1944 - There is no material placed by the Department to establish that the conduct of the assessee in paying duty on the basis of the transaction value of the rusted inputs, though the amendment requiring reversal of credit came into effect from 01.03.2003, was with an intention to evade payment of duty - Tribunal perfectly justified in deleting penalty - Revenue appeal dismissed: High Court [para 10] - Civil Miscellaneous Appeal dismissed : MADRAS HIGH COURT
21 CSC Computer Education

2014-TIOL-569 In the matter of computer education, apparent from the tender documents that the training is part of the Government's initiative to give computer training to all school children; prima facie eligible for exemption under Notification No.10/2003-ST; no pre deposit merited – Regarding Valuation, Tribunal has taken a decision that the exemption under Notification No.12/03-ST cannot be restricted to sale of standard textbooks while determining value of Commercial Coaching Services - Revenue has not made out any case that the value of materials sold is far in excess of the cost of the materials and the appellant has shifted the value of services to the value of materials - amount already deposited in sufficient for admission of appeal and there shall be stay on collection of balance dues arising from the impugned order during the pendency of the appeal.
22 Ajuba Solutions Pvt. Ltd.

2014-TIOL-835 Rule 4 of service tax Rules prescribing registration inapplicable to person subject to service tax levy but applies to "person liable for paying the service tax" - Appellant was not liable to pay tax and did not take registration – No insistence for registration of units exporting their service fully - prima facie it appears that units fully exporting their services do not take service tax registration – Appellant's need to take registration arose only to claim refund - Karnataka High Court and the Tribunal has already given two final orders to the effect that refund under Rule of CENVAT Credit Rules cannot be denied for input services received prior to the date of registration – No dispute on receipt of the service, tax payment on such service and export of output services rendered using input service - No reason to depart from settled decisions - stay application filed by the Department is rejected.
23 IMP Power and Sunil Hitech

2014-TIOL-1004 CENVAT – appellant manufacturing transformers and clearing the same on payment of duty by availing CENVAT – prima facie denial of CENVAT credit on inputs used in the manufacture of transformers on the ground that in respect of the service provided of erection and commissioning of such transformers, appellant paying ST by availing the Works Contract Composition Scheme cannot be upheld – Pre-deposit waived & Stay granted:
24 Techno Packers

2004-TIOL-1006 Held: Question is whether the invoice stand covered under Rule 9(1)(b) - In the instant case, it is seen that Saint Gobain Glass issued the invoice after initiation of the proceedings; thus applicant has failed to make out a prima facie case for waiver of entire amount adjudicated - the applicant is directed to predeposit Rs.2,00,000/-.
25 Sonigara Promoters

2014-TIOL-969 ST – Construction Service - Revenue demanding Service tax in view of Explanation to sec. 65(105) dated 01.07.2010 – appellant contending that before the explanation came into force, almost 75% of the construction was complete as per books of accounts and, therefore, liability is approximately Rs.29 lakhs and they have paid more than Rs.56 lakhs along with interest of Rs.11 lakhs - explanation is prospective in nature – merit in contention of applicants hence pre-deposit of remaining dues waived and stay granted: CESTAT
26 SJLT Textiles

2014-TIOL-1014 Central Excise – CENVAT Credit – Removal of capital goods – Reversal of duty – Appellant removed capital goods and reversed the entire amount of credit originally taken – Revenue rejected appellant's refund claim – Reversal of Cenvat credit of 2.5% for each quarter of an year from the date of taking of CENVAT credit on capital goods, in view of the decisions of Tribunal and High Court – Matter remanded back to adjudicating authority for fresh consideration – Appeal disposed of.
27

Asia Gas Agencies







2014-TIOL-1031

Central Excise – SSI exemption - Respondent engaged in the manufacture and clearance of Compressed Industrial Oxygen under brand name ‘INOX' belonging to another person – SSI benefit denied on the ground that goods manufactured were branded – Duty demands with interest and penalty confirmed in adjudication and agitated before Commissioner (Appeals) both by Party and department – Commissioner (Appeals) granted partial relief in Party appeal and dismissed departmental appeal on doctrine of merger – Both orders agitated by Revenue herein.
28 Thayar Tours and Travels

2014-TIOL-1024 In the present case, Appellant's Advocate received the order dated 1.8.2012 and also informed the applicant in the month of November, 2012, to file appeal - In terms of the Nanumal Glass Works ruling, the date of communication of the order on 01.08.2012 to the Advocate would be treated as the date of receipt of the Order by Appellant, who failed to take any initiative despite Advocate's advise - gross negligence and inaction on the part of the applicant for delay in filing the appeal.
29 Ooms Polymer

2014-TIOL-1310 CE - Classification - Polymer Modified Bitumen (PMB) and Crumbled Rubber Modified Bitumen (CRMB) manufactured from Petroleum Bitumen are correctly classifiable under CSH 2713 20 00 and not under CSH 2715 00 90 as alleged by Revenue - Appeals allowed with consequential relief
30 Ganges International

2014-TIOL-1455 Central Excise – Exemption – appellant engaged in manufacture and clearance of boiler components, free of duty under Notification No.6/2006-CE dated 01/03/06 and its successor Notification No.12/2012-CE dated 17/03/12 to various contractors executing the power projects – benefit of exemption denied in adjudication on the ground that in the projects, the requisite quantum of power has been tied up or that the projects has been awarded through tariff based competitive bidding; that the goods supplied against international competitive bidding are deemed export in terms of the foreign trade policy and such deemed export are not eligible for Customs duty exemption under Notification No. 21/2002-CUS (Sl. No. 400); and in some cases, the impugned goods are deployed as structures for support and not as component parts of capital goods – demands confirmed and agitated herein.
31 Prathiba Constructions

2014-TIOL_1520 ST – Commercial & Industrial Construction Service – Period October 2007 to March 2012 – Notfn. 1/2006-ST - Value of materials supplied by customers does not become consideration in the hands of the appellant in view of LB decision in Bhayana Builders (P) Ltd. – in this view of the matter demand is not sustainable at all: CESTAT [para 7]. ST - Works Contract Service – Value of material supplied by customers – as per notification 23/2009-ST dt. 07.07.2009, value of materials shall not be included where works has commenced prior to issuance of the notification – out of 10 contracts, in 3 contracts work has commenced before 07.07.2009 where ST on free material supplied is not leviable – since this matter needs examination/verification at the end of adjudicating authority, matter remanded: CESTAT [para 8]
32 S. Selvam

2014-TIOL-1580 The service receiver engaged the applicant as sub-contractor for shifting and staking the coal - In the present case, the applicant firm claimed that even if it is taxable, it would come within ambit of GTA service, based on factual matrix - Commissioner (Appeals) observed that demand under GTA service is not acceptable as no consignment note was issued - Prime facie, the applicant hired JCB and tippers and provided transport services for transporting the coal within the BHEL unit and there is no material available that they have supplied manpower - applicant has made out a strong prima facie case for waiver of pre deposit of entire dues and stay on recovery thereof.

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Reported Cases 2013

S.No.

Name of the party

ELT

STR

TIOL

Issue in brief

1 Stovecraft     2013-TIOL-1006 CENVAT Credit - Stay/Dispensation of pre-deposit - Cenvat credit of Service Tax on amounts paid to oil companies and LPG Distributors for marketing of LPG stoves manufactured by the appellant - Revenues contention that credit is not admissible to the appellant as it relates to activities beyond the place of removal - No dispute that credit was taken of service tax paid by BPCL and IOCL and their distributors on the amounts paid by the appellant to them in relation to the business of the appellant - Prima facie, appellant was receiving "commission agents' services" from BPCL and IOCL and their distributors - Board's Circular No. 943/4/2011-CX dated 29/04/2011 in favour of assessee - Pre-deposit waived and stay granted.
2 Interplex     2013-TIOL-683 CE - Cenvat Credit - Entitled for credit on services as Commission agent & GTA services for the relevant period - Following the decision rendered in the case of Metro Shoes Pvt. Ltd., the Tribunal, in the case of Lanco Industries Ltd. Vs. CCE, Tirupati -(2009-TIOL-1999-CESTAT-BANG) held that, as the sales commission had been paid by the assessee to the commission agent only in respect of the sales made through the commission agent, the services rendered by the commission agents to the assessee fell within the definition of "input service" under Rule 2(l) of the CCR 2004.
3 Pricol     2013-TIOL-429 Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit taken on “ Input Service Distributor's Invoices” - Credit denied on the ground that the invoices did not contain requisite particulars such as the identity of the input services and the identity of the input service providers - Complete waiver granted to the same assessee on similar issue - As long as it is not the case of the department that the input services were not used in the manufacture of excisable products by the said units, previous stay order can be followed as a precedent - Complete waiver granted.
4 LCS ROM     2013-TIOL-282 Service Tax - ROM - ROM on findings on limitation with details of correspondence made with the department to contend that there was no suppression of facts - They were disclosing the minimum possible information in their letter and the fact that the applicant has been replying to letters from the Department cannot be considered as sufficient disclosure and hence amounts to suppression of material information because the onus for payment of tax in time is on the applicant - No error in the CESTAT order upholding suppression - ROM dismissed.
5 Cotton City Developers     2013-TIOL-427 Service Tax - Stay/Dispensation of pre-deposit - Construction of complex service - Appellants engaged contractor to build complex who paid service tax - Such activity is only an input service for providing services rendered by the appellants to the individual buyers of undivided share in land, for constructing the flats - So prima facie liability arises in the hands of the appellants - Pre-deposit of Rs 50 lakhs ordered.
6 Peninsula Designs     2013-TIOL-1143 Service Tax - Stay/Dispensation of pre-deposit - Commercial or Industrial Construction service - Thermal and acoustic insulation - Denial of benefit of 67% abatement under Notification No 1/2006 ST on the ground that it is finishing service - Prima facie case for waiver of pre-deposit in view of the earlier stay order by the CESTAT in similar case - Pre-deposit waived.
7 Hindustan Coca Cola     2013-TIOL-1140 Central Excise - Stay/Dispensation of Pre-deposit - Dutiable and Exempted goods - Demand under Rule 6(2) - The Adjudicating Authority has not taken into consideration that the appellant had not availed CENVAT credit on plastic crates used in the manufacture of exempted goods, Maaza Mango - Prima facie case made out for waiver of pre-deposit.
8 CWC     2013-TIOL-1174 SERVICE TAX - Stay/Dispensation of Pre-deposit - Clearing and Forwarding Agent Service - Inclusion of documentation, inspection and royalty charges in the assessable value - Adjudicating authority confirmed demand - Appellate authority held that expenses are in nature of reimbursable expenses and are to be included in taxable value w.e.f 19.04.2006 - Demand for period prior to 19.0.2006 dropped - Prima-facie it appears that respondents admitted that the expenses were charged from the customers which are not reimbursable expenses - Deposit made by the respondent would be kept with the Revenue till disposal of the appeal.
9 Cheran Spinners     2013-TIOL-665 HC GTA can be paid thru credit
10 Interplex Electronics     2013-TIOL-1493 Service Tax - electroplating of connector components on job-work amounts to manufacture – No Service Tax payable: the process undertaken by the appellant amounts to manufacture and therefore they are not liable to pay service tax in view of the specific exclusion in the definition of ‘business auxiliary service' which provides that if the process amounts to manufacture, no service tax would be liable to be paid.

___________________________________

Exemption under Notification No.8/2005-Service Tax : Since exemption under Notification No.24/2003 is not an unconditional exemption, the appellant has a case for eligibility for exemption under Notification No.8/2005 also even if it is assumed that the process does not amount to manufacture .
11 IVRCL-KBL_MEIL JV     2013-TIOL-1488 Service Tax - Works Contract Service in relation to execution of a works contract in respect of canals - Lift Irrigation covered by Exemption Notification 41/2009: 
12 TASMA     2013-TIOL-1677 Service Tax - Stay/Dispensation of pre-deposit - Business Auxiliary Service - Demand of service tax on 5% commission retained in respect of sale of Carbon Emission Reduction Certificates - Prima facie, it cannot be held that it is a case of mere sale and purchase of the certificate between the applicant-association and the Sweden Company - The state of affairs would show that the applicant-association on behalf of their members sold their certificates to the Sweden Company and earned 5% commission in the transaction - No prima facie case for waiver of pre-deposit - Rs 15 lakhs ordered as pre-deposit.
13 SRF Ltd     2013-TIOL-1738 Central Excise - Cenvat Credit - Furnace Oil - Credit denied on the ground that details in dealer invoices did not match those in the manufacturer's invoice - The appellant should be given an opportunity to correlate dealer's invoice with the manufacturer's invoice - Case remanded to original authority.
14 Hindutan Aeronatutics Ltd     2013-TIOL-1764-LB Service Tax - Whether cost of 'deemed sale' goods to be excluded from value for computing Tax - Larger Bench declines to answer reference in view of High Court order - Matter remanded to Division Bench
15 Win Enterprises     2013-TIOL-1777 LB Central Excise - Manufacture - cutting of carpet rolls into smaller sizes and subjecting such cut sizes to a process of stitching linings at the edges would not amount to manufacture
16 Navodaya Plastics     2013-TIOL-1773 LB Central Excise - CENVAT Credit - Capital Goods cleared as such: The use of capital goods is to spread over many years. A decision to the effect that assessees can bring in capital goods, use it for a few days and then remove it without reversal of any Cenvat credit taken is not consistent with the overall scheme of Cenvat credit and can lead to abuse of the scheme. On a conjoint reading of Rule 3(4) with the provision added to Rule 3(5) with effect from 13.11.2007, the Board's Circular dated 01.07.2002 along with Board's letter dated 26.05.1993, it is quite clear that the inputs or capital goods when disposed of after putting it into some use over a period of time, then the assessee would be entitled to reverse whatever Cenvat credit availed on the value to be assessed on the date of such subsequent sale as capital goods
17 Chennai Citi Center     2013-TIOL-1750 Service Tax-Stay/Dispensation of pre-deposit – Lease/Rental service - Valuation deduction in respect of water and electricity charges and eligibility to cenvat credit pending verification by jurisdictional authority are the two issues needing detailed examination - Valuation contested on merit – Pre-deposit of 50% of tax demanded ordered.
18 Shiva Automobiles     2013-TIOL-1787 Service Tax - Stay/Dispensation of pre-deposit - Free service provided on behalf of the vehicle manufacturer - Demand of service tax on the value of parts replaced during the service by denying the exemption under Notification No 12/2003 ST dated 20.06.2003 - Prima facie case for waiver of pre-deposit.
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Reported Cases 2012

S.No.

Name of the party

ELT

STR

TIOL

Issue in brief

1 Karmobiles     2012-TIOL-8 Tri Bang Service Tax - Eligibility of CENVAT Credit of service tax paid on imported technical know how - Technical knowhow imported under license agreement for use in manufacture of automobile parts - Service tax paid on royalty paid for technical knowhow by reverse charge mechanism and availment of CENVAT Credit thereof - Denial of CENVAT Credit on the ground that importation of technical knowhow not covered by definition of input service and levy of mandatory penalty invoking section 11AC - When assessee seeks to establish importation of technical knowhow constituted input service viz., IPR service, it is incumbent on them to produce copy of license agreement - Nexus between manufacture of automobile parts and import of technical knowhow to be examined by original authority with reference to terms and conditions of agreement - Matter remanded to original authority
2 Hindustan Coca Cola Beverages     2012-TIOL13 Tri Bang Service Tax - Eligibility of CENVAT Credit in r/o Group Insurance service no longer res integra , dispute resolved in assessees own case 2010-TIOL-160-CESTAT-BANG which was not appealed against by Revenue - Dispute does not survive - Rule 2(l) of CENVAT Credit Rules, 2004
3 Sagar Enterprises     2012-TIOL-61 Customs - Import of used photocopies without license under FTP - Original authority enhanced values based on CE certificate and imposed redemption fine and penalty - Duty paid on enhanced values without contest - Redemption fine and penalty reduced by Appellate Commissioner - No infirmity in order of Appellate Commissioner to reduce fine and penalty exercising his discretionary powers - In the facts and circumstances of case, reduction of fine and penalty not unreasonable or arbitrary - No valid reason adduced to interfere with order of Appellate Commissioner
4 United Metal Industries 2012 (275)  ELT 87     Mega Power Projects - 21/2002 - stay
5 Bureau of Indian Standards   2012 (25) STR 101   Hallmarking is not IPR Service  - Stay
6 IVRCL   2012 (25) STR 236   WCS - Stay granted
7 S R Communication Systems     2012-TIOL-301 Service Tax - Stay/Application for waiver of pre-deposit - Demand of service tax with interest for the period from 6/05 to 3/09 and levy of penalties - Prima facie demand of tax for the period upto March 2008 time barred and tax payable for the latter period - Pre-deposit of Rs. 7 lakhs ordered and balance dues waived - Section 35F of Central Excise Act, 1944 as made applicable to service tax vide section 83 of Finance Act, 1994.
8 Alliance Bio Sciences & Others     2012-TIOL-570 Central Excise - Valuation - Physician Sample - Transaction Value for samples manufactured on job work: when physician samples manufactured and cleared to brand owners/ buyers on principal to principal basis for a consideration, which are further distributed by the buyer free of cost to physicians/doctors, the same is required to be assessed to duty on the transaction values. - para 5
9 Aparna Paper Processing Industry     2012-TIOL-610 Central Excise - Demand of reversal of CENVAT Credit on the cost of cylinder charges and input poly film collected from the suppliers - In view of the fact that the appellants have put the impugned cylinders and poly films and paper to use in the process of manufacture and the scrap generated in respect of defective cylinders and poly films and paper have been cleared as 'waste' paying appropriate duty, the condition for availing CENVAT credit has been satisfied and hence there is warrant in law to reverse the credit in this regard.
10 Ramky & Maytas NCC JV     2012-TIOL-613 Even Govt / Public utility EPC contracts are liable to ST under WCS
11 LCS Citymakers      2012-TIOL-618 Construction under JV - ST payable. Personal use  - entire complex should be for personal use - applicability of ST Valuation Rules, for the period prior to 19.04.2006
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Reported Cases 2011

S.No.

Name of the party

ELT

STR

TIOL

Issue in brief

1 BSNL   2011 (21) STR 586 2011-TIOL-1 Central Excise - Stay/Dispensation of pre-deposit - CENVAT Credit on capital goods installed at Trichy, Coimbatore and Kumbakonam, availed centrally at Salem - Keeping in view that the assessee, BSNL as a whole is a service tax assessee, prima facie case made out on merits for waiver of pre-deposit. 
2 Neodam Rubber Products     2011-TIOL-19 Service Tax - Taxability of activity of re-rubberizing of rollers/spindles for use in printing - Prima facie no case for full waiver of pre-deposit - Pre-deposit of Rs. 1 lakh ordered
3 Global Absorbents 2011 (263) ELT 637   2011-TIOL-53 Central Excise - Clearance of charcoal imported in bulk by repacking them into 50 kg bags - When consignments are imported in 20 kg bags and cleared further in 50 kg bags after repacking, it does not amount to manufacture in terms of Chapter Note 9 of Chapter 38 - Prima facie case for full waiver of pre-deposit 
4 Godrej Hershey 2011 (263) ELT 663   2011-TIOL-65 Central Excise - Short payment of Duty is Default - Penal provisions like consignment wise payment and non-use of CENVAT Credit apply:
5 Ooms Polymer     2011-TIOL-97 Central Excise - Stay/Dispensation of Pre-deposit - Process of adding Polymers to Bitumen and heating the mixture whether amounts to manufacture - Prima facie, the assessee has made out a strong case for waiver of pre-deposit
6 Sify Technologies Limited   2011 (21) STR 252 2011-TIOL-123 Service Tax - Associated Enterprises - Due date for payment of service tax - Amendments to Section 67 of the Finance Act, 1994 and Rule 6 of the Service Tax Rules have no retrospective application - The Legislative intention behind the amendments was explained by the Board as for plugging avoidance of tax on the ground of non-realization of money from associated enterprises and the intention of the Legislature in bringing the amendments is to introduce a new provision and not to remove any doubts in the existing provision - It is not, nor can it be, anybody's case, that Explanation shall always take effect retrospectively - The appellants are entitled for refund of excess interest paid for the service tax pertaining to the period prior to the amendment.
7 Bluebay Mineral Water Company 2011 (264) ELT 249   2011-TIOL-212 SSI Exemption - Rural Area - Confirmation by district authorities to be accepted
8 IVRCL     2011-TIOL-365 Service Tax - Laying of pipelines for water supply project of GWSSB - Water supply project is an infrastructure facility and a civic amenity provided by State to its public and not an activity of industry - Prima facie case for full waiver of pre-deposit
9 Kitti Steels     2011-TIOL-405 Customs - Import of second hand machines under zero duty EPCG Scheme - Allegation of mis-declaration of age and value (over-valuation) of machines resulting in denial of EPCG benefit, confiscation of goods and imposition of penalties.
     
2011 (266) ELT 375     Cross examination - When department issued show cause notice raising allegations against notice and proposing to demand duty, levy fine and penalty, noticee required to deny allegations by pleading facts and circumstances in support of his defense - Cross examination of any person whose statement was relied upon by Revenue to be claimed at the time of adjudication of dispute by adjudicating authority - Cross-examination of witnesses not a pre-requisite for replying to show cause notice - Claim of importer that adjudicating authority had not observed principles of natural justice not sustainable
     
      Confiscation, redemption fine and penalty - Allegation that imported machines did not match description of goods provided in imported documents i.e. age, value or residual life sustained as conditions of EXIM Policy 1992-97 remain unfulfilled due to withdrawal of certificate by Chartered Engineer - Goods to be regarded as imported without valid license, liable for confiscation under section 111(d) - Since the description of goods are mis-declared, goods liable for confiscation under section 111(m) - When certain goods in imported consignment were neither covered by purchase order nor mentioned in import documents, liable for confiscation under section 111(1) - When adjudicating authority did not give a finding on mis-declaration of value and did not embark on determination of value under section 14, confiscation under section 111(m) on the ground of mis-declaration of value not sustained - Redemption fine and penalties imposed by adjudicating authority sustained
10 Anil Kumar Yadhav   2011 (22) STR 20   Once waiver is granted under Sec. 80 it applies for all penalties. 
11 Jaiprakash Gayatri Projects   2011 (22) STR 64   Govt EPC Contractos - Not liable to ST under  - stay granted
12 Sri Bhagavathy Traders     2011 - TIOL - 478 Service Tax - C&F Agents - Whether reimbursement charges are includible in the taxable value - Matter referred to Larger Bench: Tribunal found that different benches are taking different views on includibility or otherwise of the reimbursement charges received by a provider of taxable service in the calculation of gross amount for discharge of service tax. Since there are two views taken by the coordinate benches, Tribunal referred the matter to the President to constitute a larger bench and settle the issue of "includibility or otherwise of the reimbursement charges.:BANGALORE CESTAT;
13 Vijay Leasing   2011(22) STR 553 2011-TIOL-516 Service Tax - Activity of extraction of iron ore and related activities such as excavation, processing i.e. grading, sorting etc are mining services, not liable to pay tax prior to June 1, 2007 - Findings of Appellate Commissioner in impugned order for allowing refund claim of tax paid during prior period correct and legal and does not require any interference: BANGALORE CESTAT
14 Madhav Marbles     2011-TIOL-535 Central Excise - Refund - Unjust enrichment - Uniformity in price does not lead to inevitable conclusion that the bar of unjust enrichment is not attracted - Matter remanded to give another opportunity to prove that the appellants have not passed on the incidence of duty as prayed for :CHENNAI CESTAT
15 Stanadyne Amalgamations   2011 (22) STR 344 2011-TIOL-881 Garden Maintenance - Credit not allowed
16 Nagarjuna Constructions   2011 (22) STR 433   EPC Contracts - govt projects - Stay granted
17 Anabond 2011 (267) ELT 380     Classification of RTV Sealents
18 Rane Brake Linings 2011 (267) ELT 378   2011-TIOL-706 Parts of cold storage plant - credit admissible
19 Sundaram Auto Components 2011 (267) ELT 377     Credit taken on inputs sent to job worker - duty paid by job worker also taken as credit. No infirmity
20 Appallo Threads 2011 (267) ELT 371     Previous factory in the same premises - value to be clubbed for SSI
21 Havukkal 2011 (267) ELT 162     Certificate by Govt authorities - NO suppression
22 Saravana Spinning Mlls   2011 (22) STR 568   ST - Penalties set aside
23 Iswari Spinning Mills   2011 (22) STR 549 2011-TIOL-767 GTA ST can be paid out of cenvat credit upto 18.4.2006
24 Soundaraja Mills   2011 (22) STR 567   ST - Penalties - Remanded
25 Komatsu India (P) Ltd     2011-TIOL-695 Central Excise – CENVAT Credit on trolleys – The order Commissioner is silent on the penalty imposed by the original authority - Matter remanded for fresh consideration of admissibility of credit on trolleys, demand invoking extended period and other connected issues like imposition of penalties.
26 Kumarakom Lake Resorts 2011 (268) ELT 153     EPCG - Cars imported - Alleged violation of condtions
27 Sapna Packaging Industries 2011 (26) ELY 257     Accountal of inputs - Demand confirmed - penalty set aside
28 Vijay Electricals   2011 (22) STR 643   ECI of Transmission lines - Credit for GTA Service - Stay granted
29 United Spirits Ltd     2011-TIOL-763 Service Tax – Assessee entered into licence agreements with CBUs for manufacturing IMFL/packaged drinking water and temporarily lent brand name/logo/trade mark for usage on IMFL manufactured by CBUs – Denial of CENVAT Credit on inputs/input services on the ground that they do not have any nexus with output service viz., IPR service and restriction of credit utilization to 20% under Rule 6(3)(c) of CCR – Alcoholic beverages not being excisable goods do not fall under exempted goods as defined under Rule 2(d) of CCR – Assessee can utilize CENVAT Credit A/c without limitation of 20% ceiling to discharge tax liability for providing IPR service since provisions of Rule 6(3)(c) of CCR are not attracted – Full waiver of pre-deposit ordered and stay granted
30 Hindustan Coca Cola     2011-Tiol-762 Service Tax – Eligibility of credit on cleaning service, security service, repair and maintenance, manpower recruitment, BAS and event management service – Appellate Commissioner's finding that input services are related to assessees business and admissible input services consistent with legal provisions – Assessees counsel conceded that event management not an input service
31 ABB and Others     2011-TIOL-395 Service Tax – Outward transportation of finished goods from the place of removal covered by definition of ‘input service' upto 31.03.2008, service tax paid thereon eligible as CENVAT Credit – CESTAT Larger Bench decision in ABB Ltd & Ors =2009-TIOL-830-CESTAT-BANG-LB to this extent legal and valid till 01.04.2008 – No merit in Revenue Appeals
32 Hira Entrprises     2011-TIOL--825 Clandestine Removal - Not established
         
33 Sri Vasavi Financial Services     2011-TIOL-854 Service tax - Stock Broker service - Plea that the main-broker has paid the service tax - Matter remanded to the original authority to verify the claim with the jurisdictional authority of the main-broker: CHENNAI CESTAT;
34 Siera Trading (P) Limited 2011 (269) ELT 246      
35 Sunil Hi tech Engineers     2011-TIOL-592 Service Tax – If main contractor pays Service Tax, should sub-contractor pay – Matter remanded - "oppressive" circular should be given only prospective effect: The learned Commissioner, without considering those circulars laid his hands on the circular dated 23.8.2007, which clarified that the sub-contractor was also liable to pay service tax irrespective of any payment of such tax by the main contractor. It appears, the learned Commissioner considered the circular dated 23.8.2007 to be of retrospective operation to cover the period of dispute in this case. One of the contentions which apparently escaped the attention of the learned Commissioner was that an "oppressive" circular should be given only prospective effect and that the benefit of a previous beneficial circular must be given to the assessee.
36 Sagar Enterprises     2011-TOL-888 Customs – Import of used photocopier machines restricted only on and after 19.10.1995 – Apex Court decision in Atul Commodities Pvt. Ltd  followed – Impugned order holding imported second hand photocopier machines as liable for confiscation, fine and penalty set aside
37 Interplex Electronics   2011 (23) STR 189   Rent a cab for transporting employees - Activities relating to business - Stay granted
38 IVRCL     2011-TIOL-991 Service Tax - Commercial or Industrial Construction Service - Laying of pipelines for drinking water supply projects,prima facie not leviable to tax under Commercial or Industrial Construction Service - Full waiver of pre-deposit and stay granted - Tribunal order in 2010-TIOL-222-CESTAT-BANG followed
39 S I Minerals and Chemical Process Limtited     2011-TIOL-1001 Customs - Stay/Dispensation of pre-deposit-Pet Plastic Scrap containing objectionable materials confiscated as Hazardous Waste - Prima facie, no evidence is on record to show that applicant deliberately connived in importing hazardous material - Pre-deposit waived.
40 Bhagavathy Traders   2011 (24) STR 290 LB 2011-TIOL-1155-LB ST - C & F A - Reimbursement of expenses
41 Vijay Electricals     2011-TIOL-1154 Service Tax - Activity of erection, commissioning and installation services of transmission lines undertaken by appellant for Power Grid Corporation Ltd - Liability to pay tax on laying of electrical cables between grids/sub-stations/transformer stations en route - Board's Circular No. 123/5/2010-TRU dated 24.05.2010 clarifies that activity undertaken by appellant not taxable service - When goods are transported to different sites from factory of manufacture by utilizing GTA service for undertaking erection, commissioning and installation services of transmission lines, credit of service tax paid on GTA service not deniable - Amount of Rs. 25 lakhs already paid sufficient as pre-deposit for hearing appeals - Pre-deposit of balance amounts waived and stay granted against recovery during pendency of appea
42 Stovecraft     2011-TIOL-1150 Central Excise - Allegation of clandestine manufacture and clearance of final products and irregular availment of CENVAT credit -Evidence recovered from appellant points to manufacturing activity undertaken by a proprietary firm headed by managing director of appellant - No conclusion can be reached as to whether appellant has manufactured the goods or they were manufactured by proprietary firm as claimed by appellant - Findings recorded by Adjudicating Authority prima facie leads to a conclusion that appellants have not made out a case for complete waiver of pre-deposit - Statement of supplier of raw materials states that they never supplied raw materials without duty paying documents - Allegation of ineligible CENVAT credit, prima facie cannot be sustained in this case unless entire evidences are perused and appreciated at the time of final disposal of appeals - Pre-deposit of Rs. 65 lakhs ordered 
43 Raibow Color Lab     2011-TIOL01253 Service Tax - Photography service - Demand of service tax confirmed by original authority - When appeal filed against order of original authority pending with Appellate Commissioner, jurisdictional Commissioner reviewed order of original authority and denied benefit of Notification No. 12/03-ST allowed by original authority - When appellant has not denied service tax liability and offered to deposit Rs. 5 lakhs and the issue was only with regard to denial of Notification No. 12/03-ST, pre-deposit of Rs. 7.5 lakhs ordered and stay granted
44 E-Seva     2011-TIOL-1403 Service Tax- E-Seva - Collection of User Charges from public - Pre-deposit ordered: counsel has argued that the services were rendered for the sovereign and that the beneficiaries were members of the public and, therefore, Service Tax was not leviable on the user charges collected by the assessee. It has also been submitted that no service was rendered to the government/private agencies for whom various fees and charges were collected from members of the public. These arguments have been vehemently contested by JCDR. On a perusal of Stay Order No. 1003/2009, similar arguments made before this Bench in the earlier case did not impress the Bench and that a pre-deposit was ordered. In the present case, however, over Rs.8.5 lakhs have been already paid by the assessee towards demand of Service Tax of over Rs.47/- lakhs. This payment, would suffice the purpose of Section 35F of the Central Excise Act.
45 Chokkaiyan Karthikeyan & Co 2011 (272) ELT 545     PSC Poles - Manufacture - Cenvat credit to be allowed
46 K. Prabakar Reddy   2011 (24) STR 330    
47 IVRCL     2011-TIOL-1542 Service Tax - Works Contract - Certain Works for Government - Stay granted on the basis of Board Circular and pervious decisions: The issues raised in this case are highly debatable and that, for the present purpose, the precedent cited by the Counsel can be followed. stay were granted on similar facts in favour of those parties. Prima facie , the Board's clarification works in favour of the present appellants. In this view of the matter, waiver of predeposit and stay of recovery are allowed in respect of the amounts adjudged against the appellants.
48 SRC Projects     2011-TIOL-1557 Service Tax - GTA - Board's Circular clarifying that 'provision of ancillary/intermediate services in relation to the transportation of goods, such service would form part of the 'GTA service' and not 'Cargo Handling Service' - not placed before Adjudicating Authoritry - Case remanded:
49 Interplex Electronics   2011 (23) STR 189   Rent a cab for transporting employees - Activities relating to business - Stay granted
50 Sindhu Cargo Services     2011-TIOL-1598 Service Tax - Stay/Dispensation of pre-deposit - Business Auxiliary Service - Promoting / Marketing the services provided by various Airlines/Steamer Agents - No prima facie case made out for waiver of pre-deposit - Rs 25 lakhs ordered to be deposited.
51 Bayforge     2011-TIOL-1298-CESTAT-MAD Service Tax - Business Auxiliary Service - Certain grinding and annealing charges collected from the supplier of the raw materials for making good the defects noticed - Demand of Service Tax under Business Auxiliary Service is set aside as no service has been rendered to the raw material supplier. Appeals allowed. 
52 Bureau of Indian Standards     2011-TIOL-1328-CESTAT-MAD Service Tax - Technical Testing and Inspection Services - Intellectual Property Service - Hallmark - Stay / Dispensation of pre-deposit - Hallmark is not a brand name or trade name or intellectual property of the assessee but a universally recognized quality mark to certify purity of jewellery articles and prima facie it is only a symbol indicating the purity of gold/silver jewellery, which has been implemented by the Government of India, in public interest. Administering the Hallmarking scheme in India by the appellant cannot be considered as intellectual property service. Stay granted. 
53 Microchem     2011-TIOL-1339-CESTAT-MAD Central Excise - Small scale exemption - Brand name of another person - Evidence on record clearly brings out that the brand name "Micro", belonging to another person, was used by the respondent, who was a newcomer in the market - Benefit of exemption is not admissible - Extended period is also upheld as the respondent did not disclose the use of such brand name in any intimation or declaration to the department. Department Appeal Allowed.
54 Sri Sarbati Steel Tubes     2011-TIOL-1380-CESTAT-MAD Central Excise - CENVAT Credit on outward transport from the place of removal is admissible upto 31.3.2008 in view of the Karnataka High Court order in case of ABB Ltd.Appeal rejected
55 Soundaraja Mills     2011-TIOL-1437-CESTAT-MAD Central Excise - CENVAT Credit - V-belts, motors etc removed as scrap - B eyond an averment that capital goods cleared as 'scrap' without payment of duty were those on which credit had been availed by the assessees, there is no evidence to show that CENVAT credit had been availed on the capital goods - Penalty not attracted. 
56 Nagarjuna Construction Co Vs. CCE, Hyd II     2011-TIOL-1493-CESTAT-BANG Service Tax - Works relating to relates to water supply/lift irrigation/sewage pumping - service in relation to infrastructure provided by different State Governments - Prima facie not taxable - Stay granted. The applications pertaining to similar demands had been considered by this Tribunal earlier. In Ramky Infrastructure Ltd. Vs, CCE, Hyderabad - (2010-TIOL-699-CESTAT-BANG) and Lanco Infratech Ltd. Vs. CST, Hyderabad - (2009-TIOL-2139-CESTAT-BANG), the activities involved related to services rendered by the respective appellants to the Government of Andhra Pradesh in the form of turnkey projects executed by them for the construction of dams, tunnels, distributory system to feed various ayacut, land, etc. Consistent with earlier decisions, complete waiver of pre-deposit and stay of recovery of the dues, ordered.
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Reported Cases 2010

S.No

Name of the party

ELT

STR

RLT

TIOL
Issue in brief
1 Sai Krishna Travels       2010-TIOL- 7 Taxis - Charges on KM basis - Not rent a cab operator
2 Karanjia       2010-TIOL-100 Central Excise - Availment of exemption benefit in terms of S.No. 86 and 86A of Notification 6/2002-CE simultaneously - Condition No.14A thereof does not put any restriction on availment of benefit under S. No. 86A if the assessee had already availed benefit under Sl. No.86 - Impugned order set aside
3 Sterling Biotech       2010-TIOL-103 Payment of 10 % under Rule 6 not required for by product
4 SafeTest       2010_TIOL-355 Service Tax – Penalty under Section 76 and Section 78 are mutually exclusive – penalty under Section 76 set aside and penalty under Section 78 reduced to 25% in terms of Section 73(2) as the assessee has paid the service tax prior to the issue of show cause notice.
5 AP Trade Promotion Corporation   2010 (17) STR 104      
6 Gayathri Projects   2010 (17) STR 24      
7 Livewire Advertising   2010 (17) STR 188      
8 Parmar Exports       2010-TIOL-93 HC Customs – Denial of Drawback on the ground that investigations are pending - when an alternative remedy is effectively and efficaciously available, no writ is maintainable – Petitioner directed to Appellate Authority: When an appeal remedy is statutorily provided, it is the obligation on the part of the petitioner to prefer such an appeal, before approaching this court. Though the respondent has indicated in his order itself that an appeal would lie against the order impugned, without exhausting the appeal remedy, the petitioner has challenged the impugned proceedings before this court. Therefore, when an alternative remedy is effectively and efficaciously available to the petitioner, it is appropriate for them to exhaust such remedy as provided under the Rules.Accordingly, the petitioner is directed to prefer an appeal to the appellate authority against the order impugned in this petition, within a period of four (4) weeks from the date of receipt of a copy of this order.
9 Madras Vanaspati       2010-TIOL-334 Central Excise – CENVAT Credit – manufacture of dutiable and exempted goods - payment of 10% under Rule 6 of the CENVAT Credit Rules – in the case of manufacture of a dutiable product and a by-product, the provisions of Rule 6 are not attracted and there is no requirement of reversal of 10% amount.
10 GTN Industries       2010-TIOL-345 Central Excise – Refund – Clearance of yarn for export under bond as well as domestic clearances by availing Notification 29/2004-CE – Reversal of credit on inputs used in export goods and claim of refund filed subsequently without proper supporting documents – No merit in Revenue's arguments that date of filing claim with proper documents only to be considered as date of filing refund claim – Original date of filing claim to be reckoned for the purpose of computing limitation period – No infirmity in impugned order
11 Rane TRW       2010-TIOL-352 Central Excise – CENVAT Credit – catering service is eligible for credit in view of the Larger Bench decision in case of M/s GTC Industries reported in 2008-TIOL-1634-CESTAT-MUM-LB
12 Thriveni Earthmovers   2010 (18) STR 630   2010-TIOL-433 Appellant entering into contract with Tata Iron & Steel for providing service relating to excavation and transportation of Run of Nine (RON) - Transportation of goods is within the mining area – Revenue raising and confirming a service tax demand of Rs.1.24 Crores on the ground that appellant providing Business Auxiliary Service and Cargo Handling Service – CESTAT in the case of CCE,vs. B.K.Thakkar (2008-TIOL-148-CESTAT-KOL) has held that transportation within the mining area is part of mining activity and hence, the assessee is not separately liable to pay Service Tax – Strong prima facie case in favour as the Contract is for mining, and 'Mining Service' comes under the scope of Service Tax w.e.f.01.06.2007 - present demand is prior to this period – Waiver of pre -deposit of the amount of Service Tax, interest and penalty - Stay Petition allowed.
13 Linkwell Telesystems 2010 (249) ELT 419        
14 Thirumala Impex 2010 (251) ELT 240        
15 Airtrade International 2010 (251) ELT 471        
16 Harika Resins 2010 (253) ELT 108        
17 Akash Aromatics 2010 (253) ELT 127        
18 Jaganath Textiles 2010 (253) ELT 315       Commissioner Appeal entertained fresh evidence - Remanded
19 Genus Electrotech 2010 (253) ELT 619        
20 Meghamani Organics 2010 (254) elt 172        
21 Jaihbavani Steel Enterprises 2010 (254) ELT 382       Remelting scrap - exemption available- stayed
22 IVRCL Infrastrucutre   2010 (18) STR 501   2010-TIOL-222 Laying of pipelines is not commercial or industrial construction service - stay granted
23 Addecco Flexione Workforce Solutions Limited   2010 (18) STR 511     Penalty for delayed payment of service tax - stay granted
24 Ramakrishna Reddy   2010 (18) STR 522     Removal of overburden is not liable under site formation - stay granted
25 Sheriff Motors   2010 (18) STR 64     ST paid on GTA service to bring vehicles - credit allowed
26 Hindustan Coca Cola   2010 (18) STR 57   2010 - 48 Cenvat credit allowed on outddor catering
27 Future Focus   2010 (18) STR 308   2010-835 Man power supply Vs IT Services - Demand confirmed
28 Hindustan Coca Cola   2010 (18) STR 500   2010-TIOL -813 Credit allowed on security and pest control
29 Pressure Vessels and Equipments Testing Enterprises   2010 (18) STR 719     Violation of natural justice - remanded
30 Jaishakthi Engineering   2010 (18) STR 746     Inclusion of value of materials supplied by client for claiming abatement - Stay granted
31 Sri Kumara Trading   2010 (19) STR 42     BAS - PD ordered
32 A.Sekar   2010 (19) STR 82   2010-TIOL-620 Laying of pipelines is not liable to service tax under ECI Service
33 Nagarjuna Constrution Company Limited       2010-TIOL-789 Service Tax – Laying of pipelines for drinking water supply projects run by Gujarat Water Supply and Sewerage Board, not leviable to tax under either Commercial or Industrial Construction Service or Works Contract Service – Impugned order set aside
34 Sprandrel, Delta and Premier       2010-TIOL-830
35 Samruddhi Industries          
36 Saj Flight Services       2010 - TIOL 141 Held: The activities of the appellant during relevant period will not be covered under definition of ‘interior decorator services
 
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