The dispute in the present appeal relates to the availment of service tax paid on the insurance service availed by the appellant to cover the damage or loss to the goods exported by the appellant, in as much as the said policy is for covering the goods in the foreign countries except India, lower authorities have held that the same cannot be considered as input services.
Demands for service tax with interest as applicable has been confirmed against the appellants and equal amount of penalty has also been imposed under Section 78 of Finance Act, 1994. The appellant one non profit organisations registered under Bombay Public Trust Act and is engaged in providing service of health club/sports activities to its members. Though separate orders have been passed, issue involved is same. Hence a common order is passed.
Where there was no separate maintenance/repair contract between the parties, the Commissioner had rightly held that in the absence of any maintenance & repair contract, the demand based on rate or value contract work was not sustainable.
Appellant engaged in providing service of manpower supply – appellant defaulted in payment of service tax amounting to Rs.22.30 lakhs even though the amount of service tax had been collected from the customers – amount of Rs.20.37 lakhs paid during investigation – demand confirmed along with penalty and interest – Commissioner(A) order to make a pre-deposit of Rs.7.5 lakhs is not unreasonable as it covers approximately 25% towards penalty and full amount of service tax without taking into account the interest liability – appellant directed to pay the pre-deposit within six weeks and report compliance to Commr(A) who will decide case on merits: CESTAT
It is settled law that the dutiability of the final products or inputs, the benefit of cenvat credit in respect of inputs and input services is made available, provided the assessee has necessary documentary evidence and necessary evidence to show utilisation of such input services and in this case, there is no finding that input services were not utilised in providing output services, for which service tax has been paid.
9. This Court in the Tax Appeal No.1367 of 2009 has taken the view that on a conjoint reading of sections 76 and 80 of the Act, it is not possible to envisage a discretion as being vested in the authority to levy a penalty below the minimum prescribed limit. If the authority imposing the penalty is not entitled to levy below the minimum prescrib
Since the inception of Cenvat Credit Rules, there has been a debate on the application of Cenvat Credit Rules viz a viz trading activity. The Cenvat Credit Rules do not have any provision to govern a situation where common ‘inputs’/‘input services’ are used by an assessee engaged in providing output service/ manufacturing dutiable goods and, at the same time, also undertaking ‘trading activity’.
Orion Appliances Ltd (hereinafter referred to as the „appellant?) was engaged in providing maintenance and repair and commissioning and installation services. The appellant was also engaged in trading activities. The appellant availed CENVAT credit of service tax paid on various input services including advertising, security, courier, telephone and banking services which were used in provision of taxable output services as well as for trading activities.
The CESTAT (Ahmedabad Bench) in case of Orion Appliances Ltd. v. CST, Ahmedabad. [Arising out of Appeal No. ST/120/09 and order dated 07-05-2010J has observed that Rule 6(2) and Rule 6(3) of the CENVAT Credit Rules, 2004 are not attracted in case where an assessee is providing ‘taxable output services’ and also undertaking ‘trading activity’.
BACHA MOTORS (P) LTD Vs CST, AHMEDABAD (CESTAT Ahemdabad)- It was also submitted that in several decisions of the Tribunal, reliance was placed on the decision of Hon’ble Supreme Court in the case of M/s MIL India Ltd. 2007 (210) ELT 188 (S.C.) = (2007-TIOL-30-SC-CX) to support the view that the Commissioner has no power to remand. After considering all these decisions, I find that in the case of M/s MIL India, the main issue before Hon’ble Supreme Court was entirely different and hence it was only observation during the course of discussion of the issue wherein Hon’ble Supreme Court mentioned about the amendment of the Section.
