Looking to the legislative intent it is not possible to say that the risk covered by insurance service received shall not enjoy Cenvat credit of service tax paid on such service. No doubt, the insurance service may be indirectly connected to the manufacturing or other activity but that may be in relation to manufacture or various other business activities enumerated in Rule 2(l) of Cenvat Credit Rules, 2004.
It may be stated that the matter of classification was not jurisdiction of a single Member Bench of Tribunal as has been done by order dated 4.5.2006 in ST/03/2006 contrary to mandate of section 129C(4) of Customs Act, 1962 as adopted by section 83 of Finance Act, 1994. So also when service tax demand was Rs. 22,48,432/- (Ref: page 56 of appeal folder) in the earlier adjudication.
The appellants are distributors of sim cards needed to enable telecommunication service provided by BSNL through mobile telephone. They also market recharge coupons which enables additional duration of time for which such service is allowed to the customers of BSNL. BSNL supplies these cards with fixed Maximum Retail Price (MRP) to the appellants.
The first argument that classification of service cannot be changed in the hands of the recipient, by itself is good enough to allow this appeal. Further I note that there is no reference in the opening paragraph to the classification as indicated in column (2) of the Table in the Notification. This appears to be a serious lacuna. But such missing words cannot be supplied by anyone interpreting the provisions. Secondly the description in Column (3) of the Table is Services provided for export of said goods.
The benefit of Cenvat credit paid on outdoor catering services received by the appellants for providing food to their employees as also service tax paid on running a cab service for transportation of employees from home to factory and back to home stands denied on the ground that the said services cannot be held to be eligible cenvatable input services.
The second objection of the department is that the appellant do not satisfy the conditions no. 2(e) of 12/05 ST regarding non-availment of cenvat credit. The appellant’s plea from the very beginning has been that they have never availed cenvat credit either in respect of inputs or input services and that they have been claiming filing only the rebate in respect of input/input services from time to time and that in the ST-3 Return for October 2010 – March, 2011 the rebate claim had been mentioned as cenvat credit availed by mistake.
The Notification in question clearly requires an assessee to file refund claim on quarterly basis within a period of 60 days from the end of relevant quarter during which the goods stands exported. Such period prescribed by the notification cannot be extended by courts working within the parameters of the excise laws.
Appellant had supplied the tool kit as per statutory requirements under Central Motor Vehicle Rules, 1989 as accessories to be used in relation to the manufacture of vehicle. Thus, ‘tool kit’ in our view is squarely covered by the definition of ‘input’ given under Rule 2(k)(i) of Cenvat Credit Rules and that the appellant had rightly availed the Cenvat credit in relation to tool kits. I
So far as the cross-objection of the respondent assessee is concerned, we do not find merit on valuation issue when discussion made by the ld. Commissioner (Appeals) in para 6.2 is read. The respondent assessee claims cum-tax benefit. This point does not need further consideration at this stage for no evidence led to show that the gross value was inclusive of service tax. So far as the taxability is concerned that was not before ld. Commissioner (Appeals). Such issue not been raised nor decided no pleading at this stage is entertainable in second appeal. Cross-objection is dismissed accordingly.
If any of the part of the advance attributable to taxable service and that did not form part of returns filed subsequently that amount shall be brought to tax without escapement. Law does not permit postponement of liability because of specific provision under section 67(3) of the Finance Act.
