The ld. A.R. submits that penalties have been imposed because they did not pay in time the tax due. We find that there is no case for imposing penalty for an amount more than net tax liability. So the penalty under Section 78 is reduced to Rs. 18,889/-. Further, penalty under Section 76 is waived and also the appellant is given an opportunity to pay 25% of the penalty under Section 78 in 30 days of receipt of the order. If such payment is not made in such timeframe full penalty will be payable.
Learned Advocate submits that lower authorities have also taken into account the Service Tax availed on the capital goods whereas the restriction of 20% utilisation is only in respect of the input service credit. He draws my attention to two precedent decision of the Tribunal in the same appellants case being BSNL v. CCE&C [2009] 21 STT 127 (Bang.-Cestat) and BSNL v. CCE [Final Order No. A/265/2011, dated 28-3-2011]. It stands held in the said decision that the restriction to use 20% of the credit in case of non-maintenance of separate Cenvat accounts for taxable and exempted services is only in respect of inputs service credit. Matter stands remanded to the lower authorities for segregating said credit falling on the input services as also on capital goods and to decide the matter afresh.
The Counsel for the appellant submits that for the purpose of calculation, Revenue is taking into account the entire receipts of the appellants whereas the taxable value should be taken after allowing abatement of 50% in terms of Notification No. 1/-90ST and once only taxable value is taken into account, the turnover is below the value as laid down in the small scale notification and they were eligible for exemption. The Assistant Commissioner set aside the show-cause notice but Revenue filed appeal and Commissioner (Appeals) has confirmed the demand.
Once the payment of service tax had been made by service provider to Treasury, assessee may not be denied the benefit of Cenvat credit, subject to appropriate examination of the allegation in the show-cause notice and proving use of the service in accordance with law. The original authority had to be satisfied that requirement of rule 9(5) of the Cenvat Credit Rules was fulfilled and service-tax paid was relating to input service that was ultimately used in manufacture of excisable goods. If he was satisfied that there was nexus, dependability, integrity, indispensability and inevitability, there may not be a difficulty to consider the claim of the assessee.
Appellant has rented out / leased the land along with the entire building, swimming pool and restaurant, bar, parking etc. with all the facilities as provided in the base building and the amenities and facilities under an agreement on monthly rental basis and a hotel is being run in the said building by M/s. Royal Orchid Banjara Pvt. Ltd. – in view of Explanation-1, clause (d) to the entry in section 65(105)(zzzz), it cannot be said to renting of immovable property.
Hon’ble Tribunal in the case of Commissioner of Central Excise, Rajkot v. Adani Pharmachem (P.) Ltd. – 2008 (12) STR 593 (Tri-Ahmd) cited by the appellants has held that in case where the sale is on FOB/CIF basis, the place of removal has to be load port only. Further in the case of Cauvery Stones Impex Pvt. Ltd. v. Commissioner of Central Excise, Salem -2010 (18) STR 73 (Tri-Chennai) has held that since the price of the goods exported was on FOB basis and therefore the ownership of the goods exported remained with the assessee up to the port of shipment and they also bore the risk of the goods up to the port of shipment. It was further held that the place of removal is the port and GTA service from factory gate to port of shipment is an input service and hence credit of service tax paid thereon is admissible
Bench held that When the transporter is same and recipient is respondent and there is no contradiction that tax was collected from the transporter, double taxation on the same transaction is inconceivable under the present provisions of Finance Act, 1994.
Expenses incurred to provide taxable services shall be part of assessable value if such expenses are inseparable and are integrally connected with the performance of the taxable services. Such expenses shall necessarily form part of the assessable value. Therefore, the assessee was not entitled to any relief on account of expenses not disputed, for inclusion while determining assessable value.
Prima facie coaching material has intimate connection with the commercial coaching provided by the assessee and the contents of the study material are relevant to the coaching to make the later fruitful and meaningful so that the enrolled candidates are benefited out of commercial coaching. There was no evidence to effect that these coaching materials are sold as text books by book sellers and no way useful to the enrolled students. So also there is no evidence to suggest that these coaching materials by any means enjoy exemption under law and not taxable.
Since the appellant prays that it has a case for consideration under Section 80 of the Finance Act, 1994 it is desirable to bring to record about the date on which liability arose, date of return ought to have been filed, date on which admitted tax liability should have been discharged and the date of discharge of duty liability. If these particulars neatly come out to record, that shall enable the authority to properly consider the plea of the appellant as whether it is entitled to the benefit of Section 80 of Finance Act, 1994.
