TaxTMI 
TaxTMI 
2023 (9) TMI 21
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.... limitations? 2. Whether the Tribunal was right in dismissing the Rectification of Mistake Application in cursory manner without discussing various judgments cited by the Appellant which are squarely applicable to the facts of the present case and without considering written submission filed post hearing? 3. Whether the Tribunal was correct in not considering the decision of the coordinate bench in the case of Chahabria Marketing Ltd. V. Commissioner of Service Tax, Mumbai reported as 2016(43) STR 93 which holds that exemption under Notification No. 13/2003-ST dated 20.06.2003 is available to all services provided under Business Auxiliary Service? 4. Whether the Tribunal was correct in restricting the scope of exemption under Notification No. 13/2003-ST dated 20.06.2003 to the subcategory of promotion and marketing of "Business Auxiliary Services" and not the entirety of "Business Auxiliary Services"? 5. Whether the Tribunal was correct in holding that services in the nature of "veterinary services" and "Technical Testing services" will fall under the taxable category of "Business Auxiliary Services" when at the relevant point of time the testing services on animals wer....
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....ication No. ST/ROM/92261/17, on such application on 20 April, 2017, hearing was held before the CESTAT. By its order dated 5 May, 2017, passed by the CESTAT, the ROM was disposed of confirming the demand in respect of services provided to customers of Venco/VRB. Penalty imposed under Section 78 was upheld and no penalty was imposed under Section 76. 10. Being dissatisfied with the Order passed by CESTAT on the ROM and the Order-in-Original passed by the Commissioner, Central Excise Pune-III, the Appellant has filed the present Central Excise Appeal under Section 83 of the Finance Act 1994 r/w Section 35 G of Central Excise Act. 11. The primary contention as raised by the Appellant is to the effect that the Order-in-Original to the extent it confirms the Service Tax demand on the Appellant limited to the quantum of services provided to customers of Venco/VRB, under the taxable category of business auxiliary services along with interest is illegal, without any basis, without jurisdiction and bad in law. It is contended that the findings of the Tribunal are legally as well as factually incorrect in as much as no service tax was payable on sales commission received towards rendering ....
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.... 12.2. Mr. Motwani further submitted that in view of the law as laid down by the Supreme Court and the High Courts is to the effect that Notification No. 13/2003 exemption applies to all Business Auxiliary Services, provided by a 'Commission Agent', he prayed that the impugned orders be set aside and Appeal be allowed with cost. 13. On the other hand, Mr. Ram Ochani with Mr. Karan Adik, learned Advocates for the Respondent submitted that Appellant has wrongly claimed exemption under Notification No. 13/2003 for the period from July 2003 to September 2004 in relation to Veterinary Services and Testing and Analysis Services. It is submitted that the Authorities cited on behalf of the Appellant would not assist the Appellant. It is submitted that there are concurrent findings recorded in the Order-in-Original by the CESTAT, as also by the CESTAT in rejecting the ROM dated 5 May, 2017. It is hence submitted that the Appeal does not give rise to any substantial Questions of Law hence it should be dismissed. Analysis and Conclusion 14. We have heard the learned Counsel for the parties, we have also perused the records. 15. In the present Excise Appeal, Five Questions of Law have be....
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....w of the proviso sub-section (1) of Section 11-A of the Act, it had to be established that the duty of excise had not been levied or paid of short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or willful mis-statement or suppression of facts or contravention of any provision of the Act or Rules made there under, with intent to evade payment of duty. It was observed by this Court that something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability beyond the period of six months had to be established. Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. The Tribunal, however, had held contrary to the contention of the appellants. The Tribunal noted that dhoop sticks are different products from agarbaties even though they belonged to the same category and the Tribun....
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....ithout payment of duty was itself sufficient, according to Shri Ganguly, to infer that the appellants came within the mischief of Section 11-A of the Act. We are unable to accept this position canvassed on behalf of the revenue. As mentioned hereinbefore, mere failure or negligence on the part of the producer or manufacturer either not to take out a licence in case where there was scope for doubt as to whether licence was required to be taken out or where there was scope for doubt whether goods were dutiable or not, would not attract Section 11-A of the Act. [Emphasis Supplied] In the present proceeding Show Cause Notice dated 15 April, 2009, was issued for the period of 1 July, 2003 to September, 2004. Thus, the Judgment of Padmini Products squarely applies to the facts of the present proceedings. In our opinion the Respondent failed to prove that there was suppression on the part of Appellants as during the period from July 2003 to September 2004, the Appellant had claimed exemption under the Notification No. 13/2003. Hence in our view, in the present proceedings, the extended period of limitation as per Section 73(1) proviso could not have been invoked and the demand vide S....
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.... certain judgments of this Court as well as of the High Courts which have taken this view. 17.3. A Division Bench of this Court in Electropneumatics (Supra) held that minimum expectation from tribunal was complete application of mind to controversy dealing with submissions canvassed orally and in writing and by reasoned order whether to uphold or reject them. The proceedings were remanded back to the tribunal so as grant to the assessee on opportunity to argue its case completely. It was observed that it was not possible to ascertain from tribunal's order as to which of contentions have been dealt with and considered. Paragraph 8 of the said judgment reads as under:- "8. To our mind, the Tribunal was required to consider the issues raised in the appeal in-depth and render a complete finding. If a particular issue was pressed or was given up that should be indicated in the order of the Tribunal. We would expect the Tribunal, which is manned by both judicial and technical experts, to be aware of the seriousness of the adjudication and not take up the assignment lightly and casually. There is no specific target which has to be achieved nor could the Tribunal be expected to decide ....
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.... purchase of goods. In our view, this is an incorrect reading of the Notification as the exemption under this Notification applies to all Business auxiliary services provided by a 'commission agent, and not merely to the services of selling or purchasing goods on behalf of the client. No doubt a commission agent as defined under this Notification is a person who provides service in relation to purchase or sale of goods, this is only for defining the eligibility criterion and is relevant only for determining whether or not an assessee claiming the benefit of this Notification is a 'commission agent' or not. Once it is held that the assessee is a 'commission agent' by virtue of being engaged in the activity of causing sale or purchase for a consideration which is linked to the quantum of sale or purchase, the benefit of this Notification will cover all business auxiliary services rendered by such a 'commission agent'. The activities which are covered under the head 'Business auxiliary services are the following :- "(19) Business auxiliary service means any service in relation to - (i) Promotion or marketing or sale of goods produced or provided b....
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....hat the two items were more appropriately classifiable under Chapter 37 CTH 3701 10. 6. As benefit under the Notification No. 21/2002-Cus., dated 1-3-2002 was allowable in respect of Imaging Plates and IP Cassettes even if the same is to be classified under Chapter 37, the learned Tribunal, by the impugned order, held that the said two items will be eligible to the benefit of Notification No. 21/2002, dated 1-3-2002. 7. Notwithstanding the above, as the appellant-assessee would be liable for payment of additional duty of customs by virtue of the notification under Serial No. 357B, the present appeal has been filed. 8. If the learned Tribunal was not in a position to accept the correctness of the decision of a coordinate Bench of Jindal Photo India Pvt. Ltd. (supra), the correct course of action would have been to seek the views of a Larger Bench. Judicial discipline demanded the quasi-judicial authority i.e. the learned Tribunal to act in such a manner. That apart, the learned Tribunal seems to have found a case which was not even urged by any of the parties before it, namely, that Imaging Plates and IP Cassettes merit classification under Chapter 37. 9. In the aforesai....
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....is justified in reversing the invocation of extended period". 12. Again, after hearing Learned Counsel for the parties, we find that the very confusion claimed by Assessee is being relied upon by the department to seek extended period of limitation. Perusal of the impugned order reveals that in paragraph No. 6.8, CESTAT has referred to problems faced at infancy stage of implementation and confusion then prevailing. Benefit thereof is given to the Assessee and is declined to department. This common order dated 23-11- 2011 in ST Appeal Nos. 166-167 of 2008, is questioned in Central Excise Appeal Nos. 7/2012 and 4/2015. In other appeals, impact of "confusion" about nature of activity undertaken is already directed to be looked into and matters are remanded back. If claim of assessee, that service tax is paid on transportation charges is incorrect, effect thereof or then entitlement of department to invoke "extended period" due to may be a material consideration. This also appears to have escaped attention. This view, therefore, again shows non-application of mind. The impact of clarification circular dated 12-11-2007 has not been considered at all. As the other matters need a re....
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....pra) as referred by the CESTAT in the notification in question, would not be applicable in the appellant's case so as to grant the benefit of the exemption for the period covered by the Show Cause Notice. The tribunal thus has erred in not considering that the issue was covered by the decision of Chahabria Marketing (Supra). For such reasons, we answer the Third Question of Law in favour of Appellant, and hold that the exemption benefits as per Notification No. 13/2003, is available to the services provided under "Business Auxiliary Services" for the period in question. 19. In so far as the Fourth Question of Law is concerned, namely, "Whether the Tribunal was correct in restricting the scope of exemption under Notification No. 13/2003-ST dated 20.06.2003 to the sub-category of promotion and marketing of "Business Auxiliary Services" and not the entirety of "Business Auxiliary Services"?" 19.1 The Appellant has claimed exemption under Notification No. 13/2003 dated 20 June 2003. It would be appropriate to note the provisions of Notification No. 13/2003 (as applicable during the period in dispute), the relevant extract of which is reproduced hereinbelow for ready reference:- "Bu....
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....65(12) of the Act covers all charging services rendered by banks and hence by express provisions in the same very section, cash management services stood excluded from the purview of service tax. On account of such exclusion the authorities cannot levy service tax by indirect method of charging the same services under the head "business auxiliary service". The Paragraphs 11 & 12 of the Judgment read as under:- "11. In that view of the matter, the High Court held that Clause (12) of Section 65 covers all charging services rendered by the Banks. The High Court is further of the view that when cash management services stood excluded from the purview of service tax at the hands of the Bank until 31-5-2007, the authorities cannot levy service tax on an activity which is essentially cash management service, by taking aid of other general charging heads, such as business auxiliary service. 12. Having considered the various provisions in the Act, we are in agreement with the views expressed by the High Court even for a further reason that Section 65A of the Act, while dealing with classification of taxable services, has clarified in sub-section (2) that when for any reason, a taxable ....
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.... promotion and marketing service and the commission agent service provided by the Appellant to Venco and VRB. With Effect from July 9, 2004, the appellant voluntarily obtained Service tax registration under the category of business auxiliary service, and started paying Service tax on the entire commission received by it from Venco and VRB for providing such services. The Service tax was paid by the Appellant under the category of commission agents and the same has been accepted by the Department. This clearly showed that veterinary services and laboratory analysis and testing services provided by the Appellant as a commission agent, was a part of the service of promotion and marketing. 20.2 Appellant has submitted that the veterinary service provided to its client formed part and parcel of promotion activity services and in terms of the key words of the Notification No. 13/2003 i.e. "Business Auxiliary Service" provided by a commission agent', they were clearly eligible for exemption. It is not in dispute that the Appellant is a commission agent and it is also not in dispute that the service of aforesaid customer care was given in consideration which is linked to the quantum o....
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....a plant or a human", So also, Black Law Dictionary, defines "animal" as:- "Any living creature other than a human being". In the present proceedings the issue is whether Veterinary Services and Pathological laboratory Testing of chicks, will fall into 'Business Auxiliary Services', therefore, Sub-section (106) of Section 65, cannot be read so as to exclude 'chicks'. We are thus of the opinion that sub-section (106) of Section 65, would include poultry (chicks) also. Therefore, chicks being animals are specifically carved out of the ambit of Service tax in relation to technical testing and laboratory and analysis services. 20.8 Services of testing and analysis in relation to animals are clearly excluded from the technical testing and analysis service as defined under Section 65(106) of the Finance Act, and therefore there will be no liability for payment of Service tax on them. 20.9 A Division Bench of the Punjab & Haryana High Court in Dr. Lal Path (Supra) held that the expression 'Technical Testing and Analysis' does not include any testing or analysis service provided in relation to human being or animals. The Paragraphs 7 and 8 of the judgment reads as under:- 7. The c....