Tiger Steel Engineering India Pvt. Ltd. („the assessee?) is registered with Central Excise Department for the manufacture of pre-fabricated steel buildings, falling under Chapter 94 of Central Excise Tariff Act, 1985. The assessee also avails of the CENVAT credit facility under CENVAT Credit Rules, 2004 („CENVAT Rules?). From 1 January 2007 to 30 June 2008, the assessee cleared its finished goods, namely, pre-fabricated building without payment of Central Excise duty to a unit located in Special Economic Zone („SEZ?) under a letter of undertaking. These goods so cleared to SEZ without payment of duty were regarded as exports and accordingly, the assessee filed six refund claims in respect of the unutilized CENVAT credit under Rule 5 of the CENVAT Rules. The refund claims filed by the assessee were rejected by the Original Adjudicating authority and on appeal to the Commissioner (Appeals), the order of the Adjudicating authority was set aside by concluding that the supplies to SEZ units amount to exports for the purpose of Rule 5 of CENVAT Rules. The Department has filed the present appeal against the said order to the Customs Excise & Service Tax Appellate Tribunal („CESTAT?).
Assessee has not made out a case for total waiver of pre-deposit and keeping in view the total facts and circumstances of the case, we direct the assessee to deposit an amount of Rs.1,00,000/- (one lakh) within a period of four weeks from today and on such deposit, pre-deposit of the balance amount of Service Tax and penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with this direction shall result in vacation of stay and dismissal of appeal without prior notice.
The appellants, manufacturers of motor vehicles, entered into dealership agreements with their dealers. The agreement provided for servicing and warranty including free service. The dealers margin covered pre-delivery inspection and three after sales services. The issue, therefore, was whether such pre-delivery inspection and after- sale-service charges are to be included in the assessable value of the goods for determining the duty liability under the Central Excise Act, 1944 („the Act?).
There is no direct decision in favour of the Revenue for levy of service tax on the service component of a works contract prior to 01/06/2007. On the other hand, the judgment of the Hon’ble High Court in Indian National Shipowners ‘Association case is directly against the Revenue and the same is binding on this Bench of the Tribunal.
On a careful consideration of the case records and the submission made by both sides, we find that the appellants have not made out a prima facie case for complete waiver of the dues adjudged against them. The impugned order sustained demand of service tax of Rs 7,67,673/, applicable interest, penalty @ 200/- per day or @ 2% of the tax confirmed per month for the period the tax was in arrears, penalty of Rs 5000/- under Section 77 of the Act and penalty of Rs 12,00,000/- under Section 78 of the Act. We find that a pre-deposit of Rs 1,00,000/- (rupees one lakh only) will be appropriate to hear and dispose the appeal. Hence we direct the appellants to pre-deposit Rs 1,00,000/- within four weeks from to day and report compliance on 20 th September 2010. Subject to such compliance, we order waiver of balance dues pending decision in the appeal.
Service Tax – Service tax paid on input services like house keeping/cleaning service, tours & travels, outdoor catering service, clearing & forwarding agent service and custom house agent service eligible as CENVAT credit in view of consistent decisions of CESTAT – Prima facie case for full waiver of pre-deposit
M/s Flextronics Technologies (India) Pvt. Ltd. Vs. Commissioner of Central Excise (CESTAT Bangalore)- On a conjoint reading of Section 11AB of the Act and that of Rules 3 and 4 of the Credit Rules, we hold that interest cannot be claimed from the date of wrong availment of CENVAT credit. The interest shall be payable from the date CENVAT credit is wrongly utilized.
Orion Appliances Ltd (hereinafter referred to as the „appellant?) was engaged in providing maintenance and repair and commissioning and installation services. The appellant was also engaged in trading activities. The appellant availed CENVAT credit of service tax paid on various input services including advertising, security, courier, telephone and banking services which were used in provision of taxable output services as well as for trading activities.
The Hon?ble CESTAT, Delhi held in case of Daelim Industrial Co. Ltd Vs CCE, Vadodara (‘Daelim’) (2003-TIOL1 10-CESTAT-DEL) that a works contract cannot be vivisected and a part of it cannot be subjected to service tax. In the case of CCE, Raipur Vs M/s BSBK Pvt. Ltd (2009 (13) STR 26) it was observed by the Hon?ble CESTAT, Delhi that the conclusion in the Daelim case, prima facie, is not in accordance with the law.
The CESTAT (Ahmedabad Bench) in case of Orion Appliances Ltd. v. CST, Ahmedabad. [Arising out of Appeal No. ST/120/09 and order dated 07-05-2010J has observed that Rule 6(2) and Rule 6(3) of the CENVAT Credit Rules, 2004 are not attracted in case where an assessee is providing ‘taxable output services’ and also undertaking ‘trading activity’.
