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’.
As rightly pointed out by the Ld. AR, the refund claim ought to be filed within a period of one year from the payment of service tax by the person claiming the refund as per the provisions of section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994. From the records it is seen that the appellant had paid the service tax on 24/10/2008, and the refund claim was filed on 28/01/2010 i.e. after a lapse of one year from the date of payment of tax. Therefore, the rejection of refund claim on account of time bar is sustainable in law.
Ammonia is imported by the appellant and after goods are cleared from the port and the goods are delivered to the appellants. Procurement of the input is over after taking delivery of the goods. Thereafter appellants are eligible for credit of service tax paid on inward transportation of the inputs as per definitions of the input service.
Inasmuch as the department has received the amount due from the appellant quoting of wrong registration number in the concerned challans is only a technical error which can be rectified at the department’s end itself.
Appellants are the manufacturer of country liquor under the brand name “Pahili Dhar” which is a registered trade name of the appellant themselves. The appellants are having the agreement with M/s. Talreja Trade (HUF) for marketing this liquor. Therefore, it cannot be said that the appellant are the job-workers for Talreja Trade as they are the selling agents of the appellants. With these observations, we find that the appellant are not liable to pay service tax under “Business Auxiliary Service” on the above mentioned activity. Accordingly, the appeal is allowed with consequential relief, if any.
Refund has been denied to the appellant on the ground that refund of Cenvat credit had been claimed in respect of input services received by the appellant after the period of export and hence cannot be considered as input services used for the purpose of exported service during the period in question. This is a fact on record that these input services were received after the period of export and this fact is not challenged by the appellants. I find that the Hon’ble High Court of Karnataka has examined admissibility of refund under Rule 5 of the Cenvat Credit Rules, 2004 in case of Shell India Markets (P.) Ltd. v. CCE 2012 (278) ELT 50 (Kar.)and the Hon’ble High Court in para 7 of its judgment has held as under:-
Benefit of SSI exemption Notification No.6/2005-ST dated 01.3.2005 as amended vide Notification No.8/2008-ST dated 01.3.2008, grants the benefit of exemption of service tax per year, provided that the assessee has not crossed the threshold limit of rupees ten lakhs in the preceding financial year.
No where in the Central Excise Act as well as in the Cenvat Credit Rules not prescribed any period in which credit has to be taken. Although it is mentioned in the Cenvat Credit Rules that assessee can take the credit immediately, but there is no prescribed time limit neither in the Cenvat Credit Rules nor in the Central Excise Act
Installing projects of high technical equipment is nothing but Modernisation of a factory and as per Cenvat credit Rules, 2004, services used in relation to modernisation are eligible for Cenvat credit.
In the instant case, the service rendered is promotion/marketing of the goods of the client in India by rendering various services such as demonstration, installation, after sales warranty and advertising services for which the appellant received a consideration. These activities are rendered in India and their effective use and enjoyment are in India and therefore, the benefit of the services rendered also accrue in India and hence leviable to service tax.
