Having found a good case for the appellant on the question whether the order-in-original was issued and dispatched in accordance with the relevant provision of law, we have to remand this case to the learned Commissioner (Appeals) with a request to consider the assessee’s appeal filed against the order-in-original to have been filed within time and then to proceed to dispose it of on merits in accordance with law and the principles of natural justice. Accordingly, we set aside the impugned order and allow this appeal by way of remand for the aforesaid purpose. The stay application also stands disposed of.
Whatever was submitted to the department was rebate claim under Notification No.21/2004 after the refund claim was rejected. The rebate claim has been correctly rejected on the ground that the procedure as set out under Notification No.21/2004 has not been followed.
The modus operandi of the appellants, which we have briefly stated herein before, is crystal clear. They were not purchasing and selling immovable properties. They were only holding ‘General Power of Attorney’ of the property owners and, in that capacity, selling the property to M/s Sahara India .
Learned CA submits that the maintenance of DG sets is essentially and integrally connected to rendering the business and no export of service can take place if there is no uninterrupted power supply and, therefore, the said services should be treated as ‘input services’. We are prima facie, in agreement with views expressed by learned CA that the impugned services could be treated as ‘input services’ in respect of services rendered by the appellant.
Activities of the appellant may not deserve to be considered as ‘supply of manpower’ but as rendering of ‘information technology software service’ and in the light of the stay granted in the case of ASM Technologies Ltd. (supra), the appellants are eligible for waiver of pre-deposit. As regards, the denial of CENVAT credit,
The services/activities in question are pest control, annual maintenance contract (AMC) for ST plant for sewage disposal, AMC for air conditioners for instrumentation room, canteen facility and AMC for computers. The learned counsel for the appellant relies on the following decisions in support of their claim of CENVAT credit on the aforesaid services:
The issue whether the time-limit prescribed under Section 11B in respect of claim for refund of CENVAT credit under Rule 5 is applicable has been considered by the Tribunal in the case of Swagat Synthetics Ltd. v. CCE 2007 (220) ELT 949 (Trib. – Ahd.) and it was held that credit lying in RG23A account accumulated arising out of export is akin to credit in the PLA and the time-limit shall not apply.
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.
