It was submitted by the learned A.R. that the appellant company being a limited company is not covered by the term association and exemption available is only to the association. However, it was pointed out by the learned counsel that the appellant is registered under Section 25 of the Companies Act, 1956 which provides that the word “limited” can be dispensed with in respect of an association formed as a limited company for promoting commerce, art, science, religion, charity or any other object.
After considering the submissions, we note that the impugned demand of service tax and education cess is not under any determinate head of taxable service. No breakup of the gross value for different categories mentioned in the impugned order is forthcoming. Apparently, the appropriate taxable service was not identified either in the show-cause notice or in the impugned order. A demand of service tax without correct classification of the taxable service is alien to the scheme of service tax levy.
The stand of the assessee before the lower authorities that it was inadvertent mistake and there was no mala fide in availing the ineligible excess credit. On perusal of the Show-Cause Notice, we find that the Show Cause Notice only alleges the violation of provisions of Rule 14 of Cenvat Credit Rules, 2004 read with section 11AB of Finance Act, 1994 (sic). The said Show-Cause Notice does not allege any mala fide on the appellant for availment of excess credit. In our view, having reversed the ineligibly availed the Cenvat credit on being pointed out by the Audit party, the appellant has shown their bona fide on admitting the error. In view of this, we are of the view that the impugned order which upholds the imposition of penalty on the appellant is liable to be set aside and we do so.
Looking to the legislative intent it is not possible to say that the risk covered by insurance service received shall not enjoy Cenvat credit of service tax paid on such service. No doubt, the insurance service may be indirectly connected to the manufacturing or other activity but that may be in relation to manufacture or various other business activities enumerated in Rule 2(l) of Cenvat Credit Rules, 2004.
The short issue for consideration is whether the appellants could have paid tax on an exempted services and claimed refund under Notification No. 17/2009 which allows refund of tax paid on services used in or in relation to the export of goods. The learned appellate authority has held that when a service is exempted, the appellant cannot pay the taxes and thereafter claim refund of the same on the ground that it is in connection with export purposes.
I have perused the Management Agent agreement entered into by the appellant with the principal M/s. Titan Industries Ltd. In terms of the agreement, the appellant is required to display, stock and sell jewellery products to the customers through showrooms managed and operated by the agent on stock transfer basis. The design, maintenance and operation of the showrooms has to be undertaken as per the directions of the principal and the insurance cover for the showroom has to be provided by the agent.
As per Article 56 of the Schedule to the ADB Act, the bank, its assets, property, income and its operations and transactions, shall be exempt from all taxation and from all customs duties. The Bank shall also be exempt from any obligation for the payment, withholding or collection of any tax or duty and Section 5 of the ADB Act clearly says that notwithstanding anything to the contrary contained in any other law,
It may be stated that the matter of classification was not jurisdiction of a single Member Bench of Tribunal as has been done by order dated 4.5.2006 in ST/03/2006 contrary to mandate of section 129C(4) of Customs Act, 1962 as adopted by section 83 of Finance Act, 1994. So also when service tax demand was Rs. 22,48,432/- (Ref: page 56 of appeal folder) in the earlier adjudication.
In this case, the factory is located in a village and the village does not have adequate facilities for employees and therefore to get the proper employees, it becomes necessary for the assessee to provide transportation facility from the nearest city. Therefore, it cannot be said that the assessee is providing transportation facility to its employees as a welfare measure, but it is necessity to ensure that the manufacture takes place properly. Therefore, in the case before me, it can be said that the service has a relation to the business of manufacture and has a nexus.
The short point in question is whether only a registered trademark has a right under any law for the time being in force In India and whether any law other than enacted law In force In India will come within the meaning of any law for the time being in force.
