From the impugned order, it does not come out clearly how the service tax liability has been computed. If the appellant has purchased from third parties and sold the same on payment of VAT and also supplied hardware on payment of VAT, the same would not be liable to service tax. The liability to service tax would arise only in respect of software which the appellant has developed as per customer’s specifications and supplied to their customers.
One important question survives for consideration and the same is whether the legal mistake committed by the Department can be corrected to ensure that the offender does not escape punishment under the Central Excise law. There is a clear distinction between a mistake of fact and a mistake of law. The former cannot be rectified at later stage but the latter is rectifiable subject, of course, to legal constraints. In the present case, the show-cause notice was issued to the appellant for the sole purpose of penalizing them for the offence alleged therein.
The Hon’ble Tribunal has held that Excise duty paid on Inputs and Service Tax paid on Input services used in the construction of immovable property can be taken and utilized for discharging ST liability on the renting of such immovable property and granted unconditional waiver from the pre-deposit of the dues adjudged against the Appellant and stay recovery thereof during the pendency of the Appeal on the basis of relying upon the following case laws:
Revenue agrees to grant an opportunity to the appellant to reduce the dispute at the grass root level. In view of the limited opportunity of rebuttals as above pleaded the matter is remanded to the learned Adjudicating Authority to re-examine the issue of input credit admissibility as stated above including the documents referred to in Para 5.2 of the first appellate order granting fair opportunity of defence to the appellant.
In this case appellant was allowed to operate the ropeway of Nagar Palika and such factual aspect called for testing by the Revenue Authorities with the provision of law under which the appellant was brought to tax. Section 65(105)(n) of the Act has taxing entry and meaning of the term Tour Operator is given by section 65(115) of the Act. Definition of Tour Operator” under section 65(115) states that any person engaged in the business, planning, scheduling, organizing or arranging tours by any mode of transport shall be Tour Operator.
The Airlines Industry represented to the authorities that they were receiving payments in Indian currency and the new amendment would cause hardship to the exporters and to them. Consequently the exemption under Notification 29/2005-S.T., dated 15-7-2005 was issued restoring exemption to such services from Service Tax as was available in Notification No. 28/2004-S.T., dated 17-9-2004. The additional ground taken in the application for that purpose is that notification 29/2005-S.T., dated 15-7-2005 is only in nature of a clarification and hence it should apply retrospectively.
Facts and circumstances of the case suggests that the appellant has adopted a novel way of splitting the consideration with nomenclature of reimbursement of expenses. Deliberate splitting is not possible to be ruled out when splitting is not intended by law. Once splitting is attributable to a motive, the appellant cannot get any shelter under the purview of law.
In the entire scenario, we note that admittedly, a wrong order got issued (as the mistake happened in the hands of Steno) without noticing the facts of the present case, the replacement of said order cannot be considered to be a review of the same. The entire order, which got issued was a mistake inasmuch as the same does not relate to the facts of the present case except that the reference of Appeal No. and impugned order-in-appeal match in the preamble to those in case under consideration making it look as if the present order relates to the appeal of M/s. Paramount Communication.
As regards fumigation charges, a specialized process for cleaning the containers, the Commissioner has allowed the claim on the ground that the fumigation is mandatory when agricultural products are exported and such fumigation can be done only by the Government approved agencies. Very same issue had come up before this Tribunal in the case of Ramdev Food Products (P.) Ltd. v. CCE [2012] 21 taxmann.com 410 (Ahd – CESTAT), wherein the Tribunal has taken a view that notification prescribed a condition that there has to be a written agreement between the buyer and the seller about testing and analysis of the product, if the service has been received without written agreement, the benefit of refund would not be admissible. In this case, fumigation is a specialized cleaning process, requiring to satisfy the condition of notification of written agreement between buyer and seller and ld. Counsel for the respondent fairly agree that they do not have a written agreement.
In the instant case the appellant is not rendering such service on commission basis. The amount paid by the publications is a fixed retainer fee on monthly basis. Thus by the above Circular, the appellant’s activity is not taxable under Advertising Agency during the disputed period. The Government intends to exclude print media from the purview of Service tax. In case of advertising services also, the circulars clarifying that the sale of space for advertising would not be taxable under the category of advertising services were primarily meant to save the print media from the burden of tax. In the services of sale of space of time for advertisement, a specific exclusion has been made to this effect. “Sale of space or time for Advertisement Services” was brought into the Service tax net w.e.f. 1-5-2006 only. The disputed period in the instant case is prior to that. Thus, the activity of the appellant during the disputed period is not taxable under Advertising Agency Service and Sale of Space or time for Advertisement Services too.
