As regards the financial difficulty, I have gone through the Income Tax return for the year 2010-2011 and I find that acceding to the Income Tax return, the appellant had invested in equity shares amounting to more than Rs. 4.7 lakhs. In view of the fact that the demand of Service Tax is of Rs. 2.31 lakhs, it cannot be said that the appellant is in such a financial position that he cannot pay this amount.
This Stay Petition is been filed for waiver of pre-deposit of amounts of Service Tax confirmed by the adjudicating authority and upheld by first appellate authority. The Service Tax has been confirmed by adjudicating authority and upheld by first appellate authority, on the ground that the appellant are liable to discharge Service Tax liability on NSE/BSE transaction charges and SEBI turnover fees.
As submitted by the learned counsel in respect of FOB exports, the place of removal has to be treated as the Port. Further input service definition is an inclusive definition of services used by the manufacturer directly or indirectly in or in relation to manufacture and clearance and also relating to business activities and specified categories would be admissible.
There is no dispute that the appellants were eligible for CENVAT credit for the amount paid as Service Tax and, therefore, this is a situation which was revenue neutral and by not paying the Service Tax immediately, appellants have lost more than Rs.26,00,000/- paid by them as interest which would not have become payable if Service Tax was paid promptly and taken as credit.
While considering the scope of Survey and Exploration of Mineral, Oil and Gas Service, we limited the scope to the five elements of exploration and did not consider the drilling of exploratory wells as part of that service, it has to be treated as part of Mining Service since any service in relation to Mining would come in this category.
In view of the presumption in the law that an penal liability can never be passed on to another person who has not committed the offence, the view taken by the Tribunal in the case of Offshore Hook-up that department has to prove that unjust enrichment would mean that some extra effort is required in addition to merely looking at the balance sheet or profit & loss account on the part of the department.
As regards the judgment relied upon by the learned SDR in the case of Bajaj Travels Ltd. (supra) I find that the issue involved in the: case was the issue therein the show cause notices were issued prior to 10.05.2008, i.e. on 17.10.2005 invoking the provisions of sections 76 and 78 of the Finance Act, 1994 for imposition of penalty.
No Cenvat credit on construction service if assessee is engaged in renting of immovable property – Commercial or industrial construction service or works contract service is an input service for the output service namely immovable property. Immovable property is neither subjected to central excise duty nor to service tax and input credit of service tax can be taken only if the output is a service liable to service tax or a goods liable to central excise duty.
As correctly pointed out by the learned counsel in the case of Ramdev Food Products (P.) Ltd. v. CCE [2012] 21 taxmann.com 410 (CESTAT – Ahd.) and again in the case of CCE v. Ramdev Food Products (P.) Ltd. [Final Order Nos. A/861-863/2010-WZB/Ahd., dated 30-6-2010] this bench has held that refund of service tax paid on THC, DOC charges, Haulage charges under the Port services and Courier charges and CHA services are eligible for refund.
Penalty has been imposed under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. On perusal of the records, I find that the appellant has reversed the CENVAT Credit which has been pointed out as erroneously taken in August and September 2008 itself.
