The demand has been issued based on figures taken from income tax returns where undisputedly the incomes were shown on accrual basis and not on the basis of realization of amounts. The learned advocate pointed out certain amounts were not received by the appellant company from their clients due to disputes. He also submitted that service tax rate adopted in the show-cause notice for certain period was erroneous and same was not the rate prevalent on the dates when service was rendered.
As regards benefit of service tax paid for shifting of household goods of employees, as fairly submitted by the learned counsel for the assessee, the issue is covered against them by the decision of this Tribunal cited above and accordingly the demand for service tax is upheld.
Landscaping of factory or garden certainly would fall within the concept of modernization, renovation, repair, etc. of the office premises. At any rate, the credit rating of an industry is depended upon how the factory is maintained inside and outside the premises. The Environmental law expects the employer to keep the factory without contravening any of those laws.
Supreme Court’s judgment in MIL India Ltd. v. CCE 2007 (210) ELT 188 wherein it was held that Parliament had taken away the power of remand from Commissioner of Central Excise (Appeals) by amending Section 35A of the Central Excise Act w.e.f. 11/05/2001.
This appeal filed by the department is directed against an order of the Commissioner (Appeals) wherein certain refund claim was held to be admissible to the respondent and the amount for refund was directed to be quantified by the lower authority. The only ground raised in this appeal is that the learned Commissioner (Appeals) passed a remand order without having the power of remand.
The main grievance of the appellant is that the Commissioner got a verification report dated 30.12.2009 from the Assistant Commissioner (Anti-Evasion) which indicated the Service Tax liability as Rs. 55,80,580/- and the said report was not made available to them and the Commissioner has accepted the version given by the Assistant Commissioner (Anti-Evasion) without granting them an opportunity to contest the veracity of the report.
In this appeal of the department, the short question to be considered is whether the view taken by the lower authorities that the respondent was entitled to take CENVAT credit on stockbroker’s service which was used by the respondent for acquiring shares in another company with which the respondent had entered into an agreement for purchase of electricity for the purpose of manufacture of excisable product is correct or not.
The impugned order was passed by the Commissioner under section 84 as this section stood prior to 19-8-2009. It was passed on 24-3-2011. With effect from 19-8-2009, the date on which a new appellate remedy was granted in the place of the erstwhile revisionary remedy against orders passed by Central Excise officers subordinate to Commissioner of Central Excise, section 84 offers appellate remedy against an order passed by an Assistant Commissioner of Central Excise. The provision for revision of such an order by the Commissioner ceased to be in force on 19-8-2009.
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.
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.
