Once the payment of service tax had been made by service provider to Treasury, assessee may not be denied the benefit of Cenvat credit, subject to appropriate examination of the allegation in the show-cause notice and proving use of the service in accordance with law. The original authority had to be satisfied that requirement of rule 9(5) of the Cenvat Credit Rules was fulfilled and service-tax paid was relating to input service that was ultimately used in manufacture of excisable goods. If he was satisfied that there was nexus, dependability, integrity, indispensability and inevitability, there may not be a difficulty to consider the claim of the assessee.
Notification No. 41/2009-ST, dated 23-10-2009 exempted a works contract in respect of canals, other than canals primarily used for commercial or industrial purposes, from the whole of the service tax leviable thereon. This notification appears to be the first of its kind issued after introduction of works contract service as a taxable service, and did not provide for retrospective operation. Therefore, the arguments advanced by the assessee, claiming support from a judgment of the Apex Court in W.P.I.L. Ltd. v. CCE 2005 (181) ELT 359 (SC) and praying for exemption under the said notification cannot be accepted.
Appellant has rented out / leased the land along with the entire building, swimming pool and restaurant, bar, parking etc. with all the facilities as provided in the base building and the amenities and facilities under an agreement on monthly rental basis and a hotel is being run in the said building by M/s. Royal Orchid Banjara Pvt. Ltd. – in view of Explanation-1, clause (d) to the entry in section 65(105)(zzzz), it cannot be said to renting of immovable property.
Hon’ble Tribunal in the case of Commissioner of Central Excise, Rajkot v. Adani Pharmachem (P.) Ltd. – 2008 (12) STR 593 (Tri-Ahmd) cited by the appellants has held that in case where the sale is on FOB/CIF basis, the place of removal has to be load port only. Further in the case of Cauvery Stones Impex Pvt. Ltd. v. Commissioner of Central Excise, Salem -2010 (18) STR 73 (Tri-Chennai) has held that since the price of the goods exported was on FOB basis and therefore the ownership of the goods exported remained with the assessee up to the port of shipment and they also bore the risk of the goods up to the port of shipment. It was further held that the place of removal is the port and GTA service from factory gate to port of shipment is an input service and hence credit of service tax paid thereon is admissible
Bench held that When the transporter is same and recipient is respondent and there is no contradiction that tax was collected from the transporter, double taxation on the same transaction is inconceivable under the present provisions of Finance Act, 1994.
Apparently the Superintendent took objection for the debit of interest in the cenvat credit and thereafter the appellants made the cash payment. Under these circumstances it has to be held that the payments made by the appellant were under protest only and therefore the time limit under Section 11B would not be applicable.
As regards the refund claim of Rs. 6,66,794/- which has been rejected on the ground that the services to which this amount pertains do not have direct nexus with the authorized operations undertaken by the appellant, this stand of the department is totally incorrect. The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorized operations.
Appellants made a request before the adjudicating authority for an opportunity to produce evidence to show that the cost of design and drawing are included in the assessable value of patterns/castings and appropriate duty is paid. This contention has not been taken into consideration by the adjudicating authority. In view of the above, the impugned orders are set aside and the matter is remanded to the adjudicating authority to decide the matter afresh upon showing the proof of deposit of the amount so directed and after giving adequate opportunity of hearing to the appellants.
Entire demand on the freight element is based on Rule 2(1)(d)(v) of the Service Tax Rules, 1994. Sub-clause (v) was inserted in Rule 2(1)(d) only on 3.12.2004 and the same cast Service Tax liability on the person paying the freight. Prima facie, the appellant did not pay the freight and therefore there is no tax liability on their part.
Expenses incurred to provide taxable services shall be part of assessable value if such expenses are inseparable and are integrally connected with the performance of the taxable services. Such expenses shall necessarily form part of the assessable value. Therefore, the assessee was not entitled to any relief on account of expenses not disputed, for inclusion while determining assessable value.
