TaxTMI 
TaxTMI 
2024 (5) TMI 329
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....3, should be treated as taxable value for providing service of Supply of Tangible Goods Services as per section 65(105)(zzzzi) and for providing declared Service as per section 66E(f) of the Finance Act, 1994, and accordingly I confirm the demand of Service Tax (including Education Cess and Secondary & Higher Education Cess) amounting to Rs.7,83,274/- (Rupees Seven Lakhs Eighty Three Thousand Two Hundred Seventy Four) and order for its recovery under proviso to Section 73(1) of the Finance Act, 1994 (as amended from time to time) for the reasons detailed here-in-above. II. I confirm the demand of wrongly availed Cenvat Credit amounting to Rs.2,61,15,096/- (Rupees Two Crores Sixty One Lakhs Fifteen Thousand Ninty Six Only) by the party during the period from F.Y.2008-09 to F.Y.2012-13, and order for its recovery under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(1) of the Finance Act, 1994. III. I also confirm the demand of interest due on the aforesaid amounts and order for recovery of the same from the aforesaid party under the provisions of Section 75 of chapter V of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit ....
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....o. Period Amount of rent received Rate of Service Tax Service Tax 1 2008-09 5,02,305/- 12.36 62,085/- 2 2009-10 17,14,594/- 10.30 1,76,603/- 3 2010-11 15,19,494/- 10.30 1,56,508/- 4 2011-12 23,92,612/- 10.30 2,46,439/- 5 2012-13 11,45,947/- 12.36 141.639/- Total 72,74,952/- 7,83,274/- 2.3 Further, during the course of audit and scrutiny of invoices on the basis of which the Cenvat Credit was taken by the party, it was also noticed that the party was availing Cenvat Credit on the different heads mentioned on the invoices namely documentation charges terminal handling charges and bill of lading charges on invoices/debit notes. These heads are in respect of charges related to Custom House Agent Services. Hence, it appears that the Cenvat Credit on said charges would be available for output service of Custom House Agent Service. The detail of such inadmissible credit taken by the appellant is indicated in table below: (Figures in Rs.) Sl. No Period Cenvat Taken Cenvat utilized 1 2008-09 53,86,547/- 53,86,547/- 2 2009-10 31,32,105/- 3....
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....dred Seventy Four) should not be demanded and recovered from them under proviso to Section 73(1) of the Finance Act, 1994 (as amended from time to time) for the reasons detailed here-in-above (ii) the Cenvat Credit amounting to Rs.2,61,15,096/- (Rupees Two Crores Sixty One Lakhs Fifteen Thousand Ninty Six Only) wrongly availed by them during the period from F.Y.2008-09 to F.Y.2012-13, should not be demanded and SCN 5l recovered under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 73(1) of the Finance Act, 1994. (iii) Interest should not be demanded / recovered from them on the amounts demanded in Para 10(i) & 10(ii) above under the provisions of Section 75 of chapter V of the Finance Act, 1994 read with Rule 14 of the Cenvat Credit Rules, 2004 (iv) Penalty should not be imposed upon them under Section 76 of the Finance Act 1994, for the failure to make the payment of Service Tax in prescribed time limit (v) Penalty should not be imposed upon them under Section 77(2) of the Finance Act, 1994 for the failure to self-assess the correct taxable value (vi) Penalty should not be imposed upon them under Section 78 of the Finance Act....
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....t restrictive; • The words "relating to" widens scope of definition of input service; • Input services which have only remote or no nexus with output services will get covered so long as these are related to activities of business; • Even w.e.f. 01.04.201 1, disputed input services are used for providing output service hence, are eligible input services under Rule 2(l) of CCR,04; • Decisions relied on- • Hema Engineering Industries Ltd.[2016 (46) S.T.R. 439 (Tri. - Del.)]; • Fine Care Biosystems [2010 (17) S.T.R. 168 (Tri.- Ahmd.)] • cenvat When registered procedural tax credit has under mistake) been should CHA paid which not service; be has apparently denied never under been merely wrong objected because category by dept. appellant (which is hence, not a CCR,04 nowhere states registration as a condition precedent for availing cenvat credit as held in Samsung India Electronics Ltd.[2017 (52) S.T.R. 497 (Tri. - All.)]; • Appellant got subsequently registered for CHA Service on 12.7.2013 • Respondent has without considering submissions of appellant & without giv....
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....e term "Supply of Tangible Goods Service" has been defined as under; [zzzzi) Taxable service means any service provided or to be provided, to any person, by any other person in relation to supply of tangible goods including_ machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances; 34 Also, w.e.f. 01.07.2012, as per Section 66E (f) of the Finance Act, 1994, the said activity shall constitute declared services, namely: transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods. The said Section is reproduced as below:- SECTION 66E. Declared services-- The following shall constitute declared services, namely: (f) transfer of goods by way of hiring., leasing, licensing or in any such manner without transfer of right to use such goods: 35. I notice that the departmental allegation is based on the fact that party has rented out some of their trailers (vehicles) to Ms Kataria Carriers, Kanpur and have received rent from M/s Kataria Carriers, Kanpur for such renting of trailers (vehicles) b....
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....carriage, without transferring right of possession and effective control of such goods carriage, referred to in sub-clause (zzzzi) of clause (105) of section 65 of the Finance Act, provided by any person to a goods transport agency for use by the said goods transport agency to provide any service, referred to in sub- clause (zzp) of clause (105) of section 65 of the Finance Act, to a customer in relationto transport of goodsby road in the said goods carriage, from the whole of the service tax leviable thereon under section 66 of the Finance Act. 2. This notification shall come into force on the date of its publication in the Official Gazette. Notification No. 1/2009 - Service Tax dated 5th January., 2009 G.S.R. ( ).- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.29/2008- Service Tax, dated the 29thJune, 2008, published in the Gazette of India Extraordinary, vide G.S.R.482 (E), dated the 29th June, 2008, except as things done or om....
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....ervice specified in sub-clause (zzzz)) of clause (105) of Section 65 of the Finance Act, provided by any person to a goods transport agency for use by the said goods transport agency to provide any service referred to in sub-clause (zzp) of clause (105) of Section 65 of the Finance Act, to a customer in relation to transport of goods by road from the whole of the service tax leviable thereon under Section 66 of the Finance Act subject to condition that the invoice isued by such service provider providing service should mention the name and address of the goods transport agency and also the name and date of consignment note, by whatever name called, issued in his behalf. 40 I find that the party has contended the issue only on the ground of exemption Notification, but at the same time, they have not submitted any documentary evidence to satisfy the condition as laid down in the Notification No. 12009 - ST dated 5th January, 2009 which provides that the invoice issued by such service provider providing service should mention the name and address of the goods transport agency and also the name and date of consignment note, by whatever name called, issued in his behalf. ....
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....terpretation has been often repeated by the Apex Court in catena of judgments. In the case of Tarulate Shyam Vs C.I.T., the Hon'ble Supreme Court has observed that: "In a taxing statute, one has to look merely at what is normally said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing to be implied. One can only look fairly at the language used. There is no scope for importing into the statute words, which are not there. Even if there is a casus omissus, the defect can be remedied only by legislation, and not by judicial interpretation". Further, in the case of Reliance Cellulose Products Ltd. Vs CCE [1997(6)SCC464), the Hon'ble Supreme Court has observed that: "If the word used in a fiscal statute is understood in common parlance or in the commercial world in a particular sense, it must be taken that the Excise Act has used that word in the commonly understood sense. That sense cannot be taken away by attributing a technical meaning to the word. But if the legislature itself has adopted a technical term, then that technical term has to be understood in the technical....
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....n should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 4.5 It is quite evident from the show cause notice and the impugned order, that these charges are reflected in the book of accounts of the appellant as "vehicle hiring charges received". It is also not in dispute that these charges have been received from M/s Kataria Carriers, Kanpur as rent against renting of trailers (vehicles) to them by the appellant. In the paper book filed by the appellant, the invoices against which these charges have been received are available from page no 139 to 191. From perusal of these invoices it is quite evident that the name of the recipient of services is clearly mentioned as "Kataria Carriers, H O 133/198 T P Nagar, Kanpur -208023" and description is stated as "Goods Transport Vehicle (Trailers) Hire Charges". In our view Appellant has substantially complied with the conditions as laid down by the Notification No 1/2009-ST and the benefit of this notification cannot be denied to them. For other periods for which this demand has been confirmed even the ....
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.... Rules, 2004, which is reproduced as under:- As per Rule 2(l) input service means any service- (i) used by a provider of taxable service for providing an output service or; (ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal, (This clause has been amended vide Notification 10/2008 C.E.(N.T.)-dated 01.03.2008) and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training; computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal; 48. I find that the party's contention is mainly based on the inclusive part of the definition of input services. The....
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....facture and clearance of final products. 51. As per inclusive definition of 'input service', all services used for activities relating to various stages of manufacturing and clearances of finished articles such as procurement of raw materials, transportation, advertisement and sales promotion, etc, are 'input services'. The definition specifically stipulates that 'activities pertaining to manufacture and clearance of goods or provision of output service are eligible to be classifiable as 'input service'. Thus, it cannot be said that all input services used in activities relating to manufacture and clearance of the final product are 'input service' whatever may be the purpose. 52. In this reference, I place reliance on the judgment passed in the case of Commissioner of C.Ex., Nagpur Versus Ultratech Cement Ltd. reported in 2010 (260) E.L.T. 369 (Bom.), it was observed by the Hon'ble High Court that- The expression "activities in relation to business" in the definition of input service postulates activities which are integrally connected with the business of the assessee. If the activity is not integrally connected with the business of the manufacture of fi....
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....cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. 56 Therefore, keeping the above observation in mind while deciding the case, I reiterate that the cases relied on by the party cannot be applied in their entirety to this case, as the facts are different from case to case." 4.7 Undisputedly the appellants are provider of output service. For providing the output services they receive certain input services against which they take the CENVAT Credit of the service tax paid by them. Impugned order seeks to deny the credit taken by the appellant on the ground that the services of documentation charges, terminal handling charges and bill of lading charges are the services which should have been used for providing the services under Taxable category of CHA services. As appellant is not registered for providing the services under this taxable category the credit is not admissible. We do not find any merit o logic in the said reasoning. Rule 2 (l) of the CENVAT Credit Rules, 2004 do not provide the input services, by....