AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 1463
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....d along with penalty and interest. 2. The issue, in brief, is that the appellants are providing dredging services, which was brought under the service tax with effect from 16.06.2005 and were paying service tax @ 10%. The said rate was enhanced from 10% to 12% with effect from 18.04.2006. Department felt that since the invoices have been issued, as well as payments have been received post this date, the applicable rate shall be 12%. Whereas, the appellant's contention was that since the services were already rendered prior to this date 18.04.2006, therefore, the applicable rate should be 10%. Similarly, the Department also noticed that appellant had taken credit in respect of certain inputs which Department felt was more in the nature of....
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....-VIL-119-DEL-ST]. 4. We have gone through the cited judgments and we find that the issue in the case of Nokia India Pvt Ltd., supra, was also on the similar lines, wherein, the subject circular dated 25.04.2003 and 28.04.2008 were the subject matter. It is an admitted fact that the Department has relied on these two circulars for levying 12% service tax instead of 10%. This Tribunal, after going through the said circular as well as judgment of Hon'ble Supreme Court in the case of Commissioner of Central Excise, Bolpur Vs Rattan Melting & Wire Industries [2008-VIL-04-SC-CE-CB], held that since the rendition of service is the point of taxation and therefore service tax payable at 10.12% was correct. In the case of Vistar Construction (P) L....
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....36/2010 the relevant period is March, 2008 and in WP(C) 3632/2012 the relevant period is April, May and July, 2008. 9. It should also be mentioned that at that point of time neither was Rule 58 of the Service Tax Rules, 1994 in effect nor was Section 67A of the Finance Act, 1994 inasmuch as the latter provision was inserted in 2012 which came in effect from 28.02.2012. Furthermore, even Rule 4(a)(i) of the Point of Taxation Rules, 2011 was not applicable to the facts of the present case in as much as those rules also came into effect much later in 2011. Recently, we had to consider a similar issue in Commissioner of Service Tax Vs Consulting Engineering Services (I) Pvt Ltd., = 2013-VIL-05-DEL-ST in ST. Appl.76/2012 decided on 14.0....
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....o declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law." 11. It is obvious that the said instruction being contrary to the law as declared by the Supreme Court can have no existence in the eye of the law. As a result we declare the instruction dated 28.04.2008 to be invalid. Consequently, the show cause notice and all the demands raised against the petitioner which are impugned in these writ petitions are also invalid. 5. We find that the Department has not relied on this circular and has instead relied on the circular No. 56/5/2003 dated 25.04.2003. The issue in the Board Circul....
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.... held as follows: "11.11.12 We, therefore, agree with the conclusion arrived at by the Delhi High Court that towers and shelters (PFBs) support the BTS/antenna for effective transmission of mobile signals and thus enhance their efficiency and since these articles are components/accessories of BTS/antenna which are admittedly "capital goods" falling under Chapter 85 within sub-clause (i) of Rule 2(a)(A) of CENVAT Rules, these items consequently are covered by the definition of "capital goods" within the meaning of sub-clause (iii) read with sub-clause (i) of Rule 2(a)(A) of CENVAT Rules. Further, since these are used for providing output service, i.e., mobile telecommunication service, and since these are "capital goods" received in....
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....bile telephonic services to the subscribers. Thus, towers and PFBs, though are not electrical equipment for transmission of signals, yet these are used for transmission of signal by the antennas. Therefore, there can be no denying of the fact that there is a close proximity and nexus between their functioning and the ultimate transmission of radio signals which is the output service rendered by the MSPs. Hence, the view of the CESTAT which has not been disturbed by the Bombay High Court does not commend our acceptance." Therefore, in view of this settled position, clearly these goods were to be treated as input and therefore, they were eligible for taking credit in terms of Rule 3(3) of CCR 2004. 7. Further, as far as third issue is c....