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Coming to the cenvat credit proposed to be denied on the ground that services were used for both exempted and non exempted goods as per the denial of proportionate credit as per the OIA, it has to be noted that admittedly the first appellant was engaged in the manufacture of animal feed which is exempted and was also engaged in trading activity. That being the position, the first appellant was obliged by law to maintain separate records failing which reverse the credit relatable to the trading activity.
The definition of ‘input service’ provided under rule 2(l) of CENVAT Credit Rules, 2004 covers a gamut of activities relating to the business undertaken by the manufacturer or the service provider. In the case under consideration the appellant has used the vehicles owned by them either for transportation of their employees or for transportation of goods which is an integral part of the business of appellant-firm.
Thus in case of service tax also the Commissioner (A) is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable.
One for transfer of business goodwill and the other for collection, delivery and handling of fly ash on which service tax liability is being discharged. By no stretch imagination, payment of goodwill on transfer of business can come under the category of business auxiliary services; therefore, we do not find any merit in the Revenue’s appeal.
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.
From a perusal of Rule 8 of the Cenvat Credit Rules, 2002 , it will be seen that the same is applicable in three circumstances – (1) when the manufacturer of the final products shifts his factory to another site, (2) the factory is transferred from the existing owner to the another person on account of change of ownership, and (3) the factory is transferred on account of merger, amalgamation, lease or transfer of the factory to a joint venture with specific provision for transfer of liabilities of such factory.
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.
Visa facilitators, merely facilitate the procurement of visa and directly assist individuals who intend to travel abroad, to complete the immigration formalities. Visa facilitators collect certain statutory charges like visa fee, certification fee, attestation fee, emigration fee, etc. from the visa applicant, which are remitted to the respective authorities, and in addition collect service charges for themselves as remuneration for the assistance provided by them to obtain the visa.
In this case of specific rate of duty, prima facie, the ‘ place of removal’ would be the ‘ place of removal’ for the purpose of Rule 4 of Central Excise Rules, i.e. the places on removal from where the duty is liable to be paid, which in this case, is the factory gate of Sonadih factory, as the duty on clinker becomes payable at the time of removal from Sonadih factory.
Appellant have already paid service tax from their Modvat credit, the deposit of the service tax collected from the buyers would amount to double payment. It may be noted that the proceedings are for confirmation of demand in terms of section 73A of the Finance Act which relates to the tax collected by an assessee from the buyers, which is not required to be collected.
