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Delay in present case has occurred not account of any substantial and sufficient reasons but on account of negligence of the appellant. If such delays are condoned, the meaning of limitation of thee months provided by legislature in the Central Excise Act would become meaningless and redundant.
As correctly pointed out by the learned counsel in the case of Ramdev Food Products (P.) Ltd. v. CCE [2012] 21 taxmann.com 410 (CESTAT – Ahd.) and again in the case of CCE v. Ramdev Food Products (P.) Ltd. [Final Order Nos. A/861-863/2010-WZB/Ahd., dated 30-6-2010] this bench has held that refund of service tax paid on THC, DOC charges, Haulage charges under the Port services and Courier charges and CHA services are eligible for refund.
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:
Penalty has been imposed under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11AC of Central Excise Act, 1944. On perusal of the records, I find that the appellant has reversed the CENVAT Credit which has been pointed out as erroneously taken in August and September 2008 itself.
The issue is whether giving bullock-carts on consideration amounts to supply of tangible goods service. As per the definition of tangible goods service it includes machinery, equipment and appliances. Bullock-carts prima facie cannot be considered as machinery, equipment or appliances. In view of this, the applicants have made out a case for total waiver for hearing of the appeal.
A perusal of the impugned orders clearly evidences the lack of clarity and understanding on the part of the department. The activity of live telecast of the horse race has been classified as ‘broad casting services’ during one part of the period and during another period, the very same activity is classified as ‘intellectual property rights service’.
As rightly pointed out by the Ld. AR, the refund claim ought to be filed within a period of one year from the payment of service tax by the person claiming the refund as per the provisions of section 11B of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994. From the records it is seen that the appellant had paid the service tax on 24/10/2008, and the refund claim was filed on 28/01/2010 i.e. after a lapse of one year from the date of payment of tax. Therefore, the rejection of refund claim on account of time bar is sustainable in law.
Ammonia is imported by the appellant and after goods are cleared from the port and the goods are delivered to the appellants. Procurement of the input is over after taking delivery of the goods. Thereafter appellants are eligible for credit of service tax paid on inward transportation of the inputs as per definitions of the input service.
Inasmuch as the department has received the amount due from the appellant quoting of wrong registration number in the concerned challans is only a technical error which can be rectified at the department’s end itself.
Appellants are the manufacturer of country liquor under the brand name “Pahili Dhar” which is a registered trade name of the appellant themselves. The appellants are having the agreement with M/s. Talreja Trade (HUF) for marketing this liquor. Therefore, it cannot be said that the appellant are the job-workers for Talreja Trade as they are the selling agents of the appellants. With these observations, we find that the appellant are not liable to pay service tax under “Business Auxiliary Service” on the above mentioned activity. Accordingly, the appeal is allowed with consequential relief, if any.
