If the intention of the legislature was to align the exemption with section 26 of the SEZ Act or Rule 31 of the SEZ Rules, then notification No. 4/2004-ST would have been amended to reflect the same. No such amendment has been carried out in the said notification. In these circumstances, we are of the view that if the services are not consumed within the Special Economic zone, then the benefit of notification No. 4/2004-ST will not be available.
In the case of Idea Mobile Communication Ltd. v. CCE&C [2011] 32 STT 262/12 taxmann.com 307 (SC), the Apex Court has confirmed the view taken by the High Court wherein it was held that a transaction of selling of SIM card to the subscriber is also a part of the ‘service’ rendered by the service provider to the subscriber. The contention of the assessee that the amount paid as sales tax be considered as sufficient compliance of section 35F of the Central Excise Act, read with section 83 of the Finance Act could not be accepted. As the Tribunal has no power to adjust such payments as the same is created under the special Act, i.e., Customs Act, Finance Act and Central Excise Act. Therefore, the Tribunal has no power to adjust the payment of sales tax against service tax. As discussed above, the assessee had failed to make out a case for 100 per cent waiver of pre-deposit.
As regards the refund claim of Rs. 6,66,794/- which has been rejected on the ground that the services to which this amount pertains do not have direct nexus with the authorized operations undertaken by the appellant, this stand of the department is totally incorrect. The Approval Committee which has examined this issue has issued a specific certificate to the appellant indicating the various services received by the appellant and justification for use of such services in relation to authorized operations.
Since the appellant is a charitable institution, can they be considered as a commercial training or coaching centre ? Here again the answer is negative. So long as the appellant imparts training or skill in any subject or field other than sports for a consideration, the said activity would come under the purview of commercial training or coaching. It is on record that the appellant is collecting substantial amount of fees from the students for imparting training. Merely because the appellant is registered as a Charitable Institution under the Income-tax Act, 1961, that does not entitle the appellant to claim exclusion from the ambit of service tax. Thus it is obvious that the appellant does not come under the exclusion clause of the definition of commercial training or coaching centre.
Issue involved in the present appeal is whether the refund claim filed by the respondent is hit by the time limitation as prescribed under Section 11B of the Central Excise Act. The refund claim in present case was filed on 28th April 2010 for refund of service tax paid by them. The original authority in para 2.1 of the Order-in-Original has stated that the TR-6/GAR-7 challans filed along with the claim and the statement furnished by the claimant shows that the service tax payments were made during the period 2006-07 and 2007-08 and last such challan was dated 1st December 2007 and it was also noticed that service tax liability for the period May 2004 to March 2006 was discharged in May 2006. We find that refund claim was submitted by the respondent with the office of Assistant Commissioner of Central Excise on 28-4-2010 under Section 11B of the Central Excise Act as made applicable to the service tax matters vide Section 83 of the Finance Act, 1994. Refund claim was to be filed within a period of one year from the date of payment of excise duty/service tax. We, therefore, find that the refund claim was filed much after the time-limit of one year as prescribed under Section 11B of the Central Excise Act.
The first issue by the learned A.R. is that after sales service of the vehicle is not an ‘input service’ on the ground that the service has been availed after sale of the vehicle and expenses incurred towards manufacture of the vehicle are entitled for input service credit. We have gone through the Section 4(3) of the Central Excise Act, 1944 which deals with the issue as hereinunder :-
Appellant is not simply a provider of output service but also a manufacturer of the excisable goods. The appellant contended that till 28-2-2008 for the manufacture of final products the service of Goods Transport Agency remained an output service and, therefore, Cenvat Credit was permissible to be utilized for payment of service tax upto 28-2-2008.
On verification of the records, we find that the details submitted by the applicants on 14.05.2007, does not cover the amount of tickets sold prior to 01.05.2006 for the journey carried out on or after 01.05.2006. We find that this is a suppression of fact on the part of the applicants prima facie therefore, the extended period of limitation has rightly been invoked. We further find that there is no dispute on the liability of service tax.
There is no dispute about the fact that the appellant has taken CENVAT credit of the duty paid by them. Whether the duty is paid rightly or wrongly, is not the concern of the appellant who is only a recipient of the goods/service. So long as duty is paid either on the goods or the service, appellant is rightly entitled for the credit. This Tribunal in their own case for the previous period has allowed such credit. There is nothing on record to show that the department has appealed against that order of the Tribunal. In view of the position, I allow the appeal with consequential relief, if any.
The short question for consideration in this case is which is the place of removal in respect of exports? Is it the factory premises or is it the port of shipment? In the case under consideration, the appellant has availed service tax credit on GTA service, which was utilised for transportation of goods from the factory to the port of shipment.
