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CESTAT RULINGS 2013

AIT-2013-01-CESTAT
Ms. Katrina R. Turcotte Vs. CST, Mumbai

The appellant Ms. Katrina R. Turcotte alias Ms. Katrina Kaif has filed this appeal against the impugned order wherein a demand of service tax for the period 01.05.2006 to 09.09.2004 of Rs. 2,79,24,960/- has been confirmed under Business Auxiliary Service. The  appellant through Matrix India Entertainment Consultants P. Ltd. was providing services to various companies for promotion of their products, whether manufactured directly or indirectly, or marketed or sold by these companies, by agreeing to model herself for advertisement films, TV commercials, still photographing, footage, press advertisement, outdoor, packaging and sales material including backing sheets, mobile stickers, danglers, wobbles, booklets and other printed matters and other promotional material. It was found that the appellant is providing the above services on a consideration but not paying service tax.

AIT-2013-02-CESTAT
M/s Paul Merchants Limited & Others Vs. CCE, Chandigarh

Third Member: (i) The term "export" has not been defined either in Article 286 (1)(b) or in any of the article of the Constitution of India. Though the Apex Court's judgments in the case of the State of Kerala V5. The Cochin Coal Company ltd. [(1961) 2 STC 1 SC] and Burmah Shell Oil Storage & Distribution Co. of India vs. Commercial Tax Officer & Others reported in (1960) 11 STC 764 (SC) explain the meaning of the term "export", the ratio of these judgments which are with regard to export of goods, is not applicable for determining what constitutes the export of services. There is no question of Export of Service Rules, 2005, being in conflict with Article 286 (1) (b) of the Constitution of India.

AIT-2013-03-CESTAT
Hindalco Industries Ltd. Vs. CCE, Allahabad

Power Plant is a captive power plant of the Appellant’s manufacturing unit, the two have to be treated as one intergrated unit and therefore, the cenvat credit of service tax paid on insurance policy for the power plant would be admissible

AIT-2013-45-CESTAT
M/s GE India Industrial Pvt. Ltd. Vs. CST, Bangalore

a person who is not a actual service provider, but discharges the service tax liability on the Taxable Services, under Section 68(2) of Finance Act, 1994, as a deemed service provider, is entitled to avail the CENVAT credit on inputs/input services/capital goods for payment of GTA service tax, even if he is not using such inputs/input services/capital goods for providing taxable services by virtue of deeming legal fiction.

AIT-2013-77-CESTAT
M/s Xerox India Ltd. Vs. CCE, Meerut

the appellants are engaged in the manufacture of photocopiers which are being sold by them to their customers. Thereafter, they entered into an agreement with their customers which is called a Full Service Maintenance Agreement. In terms of the said agreement, they charged 29 paise per copy and as and when any part of the photocopy develops a defect, the appellant would change the same free of cost.

AIT-2013-79-CESTAT
M/s. The India Cements Ltd. Vs. CCE, Trichy

the appellant availed credit on capital goods, namely MS Angles, MS Beams, MS Channels and TMT bars - CENVAT credit was allowed as these items were used for fabrication of structurals to support machines like crusher, kiln, hoppers, pre-heaters conveyor system etc. and that without these structurals, the machinery could not be erected and could not function

AIT-2013-104-CESTAT
M/s Narottam & Company Vs. CCE, Jaipur

The dispatch of the goods from the factory to the godown is arranged by the principal M/s Binani Cement and not only this, even the godown has been rented by M/s Binani Cement only where they have deployed their own staff. Thus, the activity of the appellant is only of forwarding and not clearing and forwarding and hence in view of judgment of Hon’ble Punjab & Haryana High Court in the case of CCE, Panchkula vs. Kulcip Medicines (P) Ltd. (supra), the appellant’s activity would not be covered by the C&F agent’s service taxable under Section 65 (105) (j) readwith Section 65 (25) of the Finance Act, 1994.

AIT-2013-122-CESTAT
Academy of Aerospace and Aviation Vs. CCE, Indore

Larger Bench: Flying Training Institutes providing training for obtaining Commercial Pilot Licence and Aircraft Engineering Institutes for obtaining Basic Aircraft Maintenance Engineering Licence are not subject to service tax in the category of coaching centres.

AIT-2013-123-CESTAT
Delhi Public School Society
Vs. CST, New Delhi

The assessee entered into agreements with distinct entities which intended to establish schools in different areas (within India and overseas as well) in collaboration with the assessee.

AIT-2013-124-CESTAT
Glyph International Ltd. Vs. CCE & ST, Noida

Larger Bench: In view of above clear provision in Section 86(6) we have no doubt in holding that no fees is payable on appeals relating to refund/rebate of Service Tax. Since provisions under Section 129A (6) of Customs Act and 358 (6) of Central Excise Act, are identical, no fees is payable in respect of appeals pertaining to refund of excise duty or Customs duty.

AIT-2013-126-CESTAT
M/s. Bechtel India Pvt. Ltd. Vs. CCE, Delhi

On going through above provisions for claiming refund under Rule 5 of the Cenvat Credit Rule 2004, output service is required to be exported in accordance with procedure laid down Export of Service Rule 2005 (as per condition 1 of the Appendix to Notification 5/2006). Once service is exported refund claim can be filed subject to limitation as prescribed under Section 11B of the Act.  In the instant case export of service is complete only when foreign exchange is received in India as per Export of service Rule 2005 (i).  In the Section 11B, relevant date for refund of export of goods is date of export.  Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006.  In case of export of Services, export is complete only when foreign exchange is received in India.  Therefore relevant date of export of services is date of receipt of foreign exchange.  In the present case all the four claims have been filed with 1 year from the date of receipt of foreign exchange and are therefore filed in time and cannot be held as time barred.

AIT-2013-133-CESTAT
S. Pritam Singh, Transport Careers Vs. CCE, Jaipur

transportation of materials within the premises of service recipient would not fall within “cargo handling” service.

AIT-2013-134-CESTAT
M/s ITC Ltd. Vs. CST, Delhi

The show cause notices in the present case before us,  were issued on the basis of a prima facie assumption by Revenue that the assessee was assessable to levy of service tax for providing BAS.   The reasons for such prima facie assumption of Revenue were however not specified in the show cause notices.  Mere extraction of the entire provisions of Section 65(19) of the Act does not fulfill the  requirement.

AIT-2013-135-CESTAT
Neelav Jaiswal & Brothers Vs. CCE, Allahabad

It is admitted that the liability to remit Provident Fund to Provident Fund Authorities is a statutory liability on the appellant, the an employer of persons who were deployed to serve the needs of M/s Hindalco Industries Ltd., towards the taxable “manpower recruitment or supply agency” service. M/s Hindalco  consideration for such taxable service provided by the appellant  had remitted  to the appellant  not only the amount agreed to between the parties for remunerating the personnel so deployed but also the amount of provident fund payable by the appellant to Provident Fund authorities, in terms of the appellant’s  statutory obligation. Both these amounts  therefore constitute the gross amount charged by the appellant  for the taxable service provided to M/s Hindalco Industries Ltd., since the taxable service was provided for a consideration in money. Both these amounts therefore constitute the gross amount charged by the appellant for having provided  the taxable service.

AIT-2013-141-CESTAT
M/s. Alembic Ltd. Vs. CCE, Vadodara

Larger Bench: interest on duty/cenvat credit demanded by applying proviso to Section 11A or Section 11AA with Cenvat Credit Rules or under Rule 57(I), is payable under Section 11AB prior to 11.05.01.

AIT-2013-142-CESTAT
M/s. Panasonic Battery India Co. Ltd. Vs. CCE, ST,
Vadodara

Larger Bench: the doctrine of unjust enrichment will, therefore, not be attracted to the refunds pertaining to the finalization of provisional assessments for period prior to 25/06/1999 when the linking proviso under Rules 9 B (5) of Central Excise Rules 2004 was not existing. The linking provision under proviso to Rule 9B(5) was made by an amendment with effect from 25.06.1999 and will be applicable only w.e.f. 25.06.1999. The opinion of this bench on the issue, therefore, goes in favour of the assessee and against the Revenue that for the period prior to 25.06.1999 unjust enrichment will not be applicable for refunds arising out of finalization of provisional assessments pertaining to the period prior to 25.06.1999 even if assessments are finalized after 25.06.1999.

AIT-2013-143-CESTAT
M/s. Grasim Industries Ltd. Vs. CC, Jamnagar

Larger Bench: for the period from 02.03.01 to 26.09.06, the ship demurrage charges cannot be included for the discharge of customs duty on the imported goods even if the assessments are made provisionally

AIT-2013-155-CESTAT
M/s Bhayana Builders (P) Ltd.
Vs. CST, Delhi And Others

Larger Bench: goods and materials, supplied/ provided/ used by the service provider for incorporation in the construction, which belong to the provider and for which the service recipient is charged towards the value of such supply/ provision / use and the corresponding value whereof was received by the service provider, to accrue to his benefit, whether independently specified as attributable to the specific material/ goods incorporated or otherwise, would alone constitute the gross amount charged.,  This is not to say that an exemption Notification cannot enjoin a condition that the value of free supplies must also go into the gross amount charged for valuation of the taxable service.  If such intention is to be effectuated the phraseology must be specific and denuded of ambiguity

AIT-2013-177-CESTAT
M/s Larsen & Toubro Ltd. Vs. CST, Delhi

since there is a conflict of opinion between Larger Bench decisions of this Tribunal Jyoti Ltd; Indian Oil Tanking Ltd. and BSBK Pvt. Ltd., we consider it appropriate that in the interests precedential coherence, the  issue whether a composite contract, involving transfer of property in goods and services which is taxable only from 1.6.2007, onwards and not earlier thereto, in view of the provisions of Section 65(105)(zzzza), could be vivisected and service components of such composite contract could subjected to tax by classification of such service components under other pre-existing taxable services such as commercial or industrial construction service or erection, installation and commissioning service, construction of residential complex service etc. for the period prior to 1.6.2007, must be referred to a larger bench of five members.

AIT-2013-178-CESTAT
M/s Parry Engineering & Electronics P. Ltd. Vs. CCE, Rajkot

whether an assessee is eligible to avail CENVAT Credit of an amount paid as Service Tax by a service provider in respect of installation and erection, maintenance or any other services rendered at wind mills, which are located away from the factory premises and the electricity generated out of such wind mills is consumed at the factory premises after such power is to put through the common grid. - Registry is directed to place the matter before Hon’ble President for constituting a Larger Bench and set at rest the controversy which is arising out of different views expressed by Tribunal’s Benches.

AIT-2013-189-CESTAT
M/s ESPN Software India (P) Ltd. Vs. CST, New Delhi

We find that Appellants do not have any technology for receiving signals or downlinking facilities.  Signals are directly received by the MSOs/cable operators from the satellite through Set Top Boxes and smart cards supplied by the Appellant.  Technically they are not recipients of any broadcasting service.  However, ongoing through the definition of Broadcasting we note that in the definition  after the “means part” and first inclusive part the words “and in case of broadcasting agency or organisation having its head office situated any place outside India includes the activities of selling time slot or obtaining sponsorship for channels or collecting broadcasting charges” also exist.  Definition is to be read as a whole and so read cannot be interpreted to conclude that the Appellant is a service recipient as per the “means” and first inclusive part of the definition and  a service provider under the second inclusive part of the definition.

AIT-2013-198-CESTAT
Navodhaya Plastic Industries Ltd.
Vs. CCE, Hyderabad

Larger Bench: 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. Considering this aspect and the legislative history and the circular of CBEC, we are of the view that we should respectfully follow the decision of the Hon’ble Madras High Court in the case of Commissioner of Central Excise, Salem Vs Rogini Mills Ltd. and the reference made to this Larger Bench is answered accordingly

AIT-2013-199-CESTAT
Victory Electricals Ltd.
Vs. CCE, Hyderabad

Larger Bench: wherever the assessee, as per the terms of the contract and on account of delay in delivery of manufactured goods is liable to pay a lesser amount than the generically agreed price as a result of a clause (in the agreement), stipulating variation in the price, on account a the liability to “liquidated damages”, irrespective of whether the clause is titled “penalty” or “liquidated damages”, the resultant price would be the “transaction value”; and such value shall be liable to levy of excise duty, at the applicable rate.

AIT-2013-200-CESTAT
M/s. Win Enterprises
Vs. CCE, Chennai

Larger Bench: 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.

AIT-2013-206-CESTAT
M/s Lakhan Singh & Co. Vs. CCE, Jaipur

Now, it is well settled by various decisions of the Tribunal and the different High Courts that handling of goods within a factory does not amount to “Cargo Handling” as defined in the Finance Act, 1994.  However, it is seen that the items of work specified in the contract between the Appellants and CFCL at S. No. 1 to 11 involves handling of cargo into rail wagons and into trucks.  Thus the argument of the Appellants that the entire service rendered by them is of manpower supply and the manpower so supplied was only assisting in proper functioning of an automatic system is not correct.

  


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