Alert No 20100503A : Monday, May 03, 2010
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Recent Important Judgements:
STO 2010 CESTAT 33
Service Tax: Consulting Engineers Service: Refund: Unjust enrichment: The ground that the appellants availed of the same as Cenvat credit is also not sustainable as the appellants vide letter dated 28.8.2004 informed the department that they had re-paid the said availed service tax along with interest to the department it cannot be said by any stretch of imagination that the burden of service tax amount to be refunded has been passed on to any other person or customers as service tax has gone in the excisable goods sold by the appellants. The grounds of appeal do not disclose any reason for disagreeing with the factual findings by the Commissioner (Appeals). Further, no averments have been made as to why the decision of the Tribunal in the case of Hexacom (I) Ltd. is not applicable to the facts of the present case as held by the Commissioner (Appeals). In view of the above, no valid grounds have been adduced to interfere with the decision of the Commissioner (Appeals). Therefore, the appeal of the Department is rejected. Cross-Objection by the respondents which is basically in support of the order of Commissioner (Appeals) is also disposed of. (para 6.1, 6.3,7)
Service Tax: Consulting Engineers Service: Service tax was not applicable on the technical know-how and the appellants on the insistence of the department paid the same from their own pocket even being service receivers and nor service providers. (para 6.1)
STO 2010 CESTAT 32
Service Tax - Business Auxiliary Services - Penalty - Pre-deposit & Stay -There is no dispute about the fact that the appellant voluntarily paid service tax on 31.3.2006 and 25.4.2006 and the notice for imposition of penalty was issued much later on 28.11.2007. There is also no allegation of any fraud, collusion and wilful suppression of facts with intention to evade payment of service tax. Therefore, prima facie, this case appears to be covered by the provisions of Sub-section (3) of Section 73 of the Finance Act, 1994, read with Board's Circular No. 137/167/2006-CX4 dated 3.10.2007. This Circular clearly says that once the proceedings under Section 73(3) are concluded, all the proceedings including those under Section 76, 77 & 78 also shall be concluded. Requirement of pre-deposit of penalty is waived for hearing of the appeal. Stay application is allowed. (para 6)
STO 2010 CESTAT 31
Service Tax - Goods Transport Agency Service - Pre-deposit: Prima-facie, the appellants have only reimbursed the freight expenses incurred by the suppliers and since the appellants' contracts that the suppliers were on F.O.R basis, it is the suppliers who had engaged the transporters to arrange the transportation of the goods from Nepal upto the appellant's factory premises and it is the supplier who have made payment to the transporters. Therefore, prima-facie, the appellants cannot be treated as recipient of GTA service. Pre-deposit of demand, interest and penalty is waived for hearing of these appeals and recovery thereof is stayed. The stay petitions are allowed. (para 3)
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