Appellate authority has not applied his own independent mind to various issues involved in the appeal and various contentions raised by the appellant. It stand simply observed by the appellate authority that all the issues stand discussed in detail by the adjudicating authority and he find himself in agreement with the same.
As regards the judgment relied upon by the learned SDR in the case of Bajaj Travels Ltd. (supra) I find that the issue involved in the: case was the issue therein the show cause notices were issued prior to 10.05.2008, i.e. on 17.10.2005 invoking the provisions of sections 76 and 78 of the Finance Act, 1994 for imposition of penalty.
No Cenvat credit on construction service if assessee is engaged in renting of immovable property – Commercial or industrial construction service or works contract service is an input service for the output service namely immovable property. Immovable property is neither subjected to central excise duty nor to service tax and input credit of service tax can be taken only if the output is a service liable to service tax or a goods liable to central excise duty.
The department has issued clarification vide circular No.59/8/2003-ST dated 20.6.2003 and as per the said clarification, it was clarified that in case of commercial training and coaching institutes, the exclusion shall apply only to the sale value of standard textbooks, which are priced. Any study material or written text provided by such institute as a part of service which does not satisfy the above criteria will be subjected to service tax. On the basis of this clarification, the demand has been confirmed against the appellant.
Delay in present case has occurred not account of any substantial and sufficient reasons but on account of negligence of the appellant. If such delays are condoned, the meaning of limitation of thee months provided by legislature in the Central Excise Act would become meaningless and redundant.
As correctly pointed out by the learned counsel in the case of Ramdev Food Products (P.) Ltd. v. CCE [2012] 21 taxmann.com 410 (CESTAT – Ahd.) and again in the case of CCE v. Ramdev Food Products (P.) Ltd. [Final Order Nos. A/861-863/2010-WZB/Ahd., dated 30-6-2010] this bench has held that refund of service tax paid on THC, DOC charges, Haulage charges under the Port services and Courier charges and CHA services are eligible for refund.
The services/activities in question are pest control, annual maintenance contract (AMC) for ST plant for sewage disposal, AMC for air conditioners for instrumentation room, canteen facility and AMC for computers. The learned counsel for the appellant relies on the following decisions in support of their claim of CENVAT credit on the aforesaid services:
Penalty has been imposed under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. On perusal of the records, I find that the appellant has reversed the CENVAT Credit which has been pointed out as erroneously taken in August and September 2008 itself.
The issue is whether giving bullock-carts on consideration amounts to supply of tangible goods service. As per the definition of tangible goods service it includes machinery, equipment and appliances. Bullock-carts prima facie cannot be considered as machinery, equipment or appliances. In view of this, the applicants have made out a case for total waiver for hearing of the appeal.
A perusal of the impugned orders clearly evidences the lack of clarity and understanding on the part of the department. The activity of live telecast of the horse race has been classified as ‘broad casting services’ during one part of the period and during another period, the very same activity is classified as ‘intellectual property rights service’.
