TaxTMI 
TaxTMI 
2025 (3) TMI 1590
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....redit Rules, 2004 during the years 2011-12 to 2017-18; the appellant has not paid service tax on various services availed from foreign entities under Reverse Charge Mechanism and that the appellant has wrongly availed input service credit on certain services which they are not eligible to do so. Various show cause notices were issued and confirmed by the OIO and OIA as follows: Sl No. Period covered Date of SCN OIO date OIA date Duty/ penalty in Rs. 1. 01.04.2010 to 31.03.2013 31.03.2013 30.09.2015 - (i) 4,03,88,647/- (ii) 22,23,514/- (appropriated the duty paid and interest of 7,97,043/- confirmed) (iii) 20,04,759/- (appropriated duty and interest confirmed penalty of 25%) (iv) 70,15,868/- (with equal penalty but option to pay 25% given) 01.04.2012 to 31.03.2013 22.05.2014 -do- - 4,77,69,834/- (along with equal penalty) 2. 2013-14 2014-15 17.04.2015 13.04.2016 03.05.2017 -do- 30.11.2017 -do- 1,91,82,534/- (along with interest and penalty of 19,18,253/- 3. 2010-12 2012-13 2013-14 2014-15 03.10.2013 22.05.2014 17.04.2015 13.04.2016 08.03.2018 -do- ....
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....3, CESTAT, Ahmedabad (Single Member) ● Bharat Sanchar Nigam Ltd. v. Commissioner of Central Tax and Central Excise, Thiruvanthapuram and Ors., Appeal No. ST/20058/2019, CESTAT, Bangalore (Single Member) ● Andritz Technologies Pvt. Ltd. v. Commissioner of Central Tax, Bangalore North, Appeal No. ST/21165/2018 dated 29.11.2019, CESTAT Bangalore. ● TRU Letter dated 16 March 2012 4. As regards the allegation of wrong availment of exemption from payment of service tax on Real Estate Agent Service provided to SEZ units, the learned Counsel submits that the exemption was denied on the ground that the appellant has not complied with the exemption notifications; it is an established legal principle that when service is provided to SEZ units, service tax is exempt under the provisions of SEZ Act which overrides the provisions of Finance Act, 1994; exemption is available even if some of the conditions of the Notification in respect of supplies to SEZ are violated as long as it is not denied that the services are provided to SEZ. He relies on the following: ● CBRE South Asia Pvt. Ltd. v. Commissioner of Service Tax, Delhi, Audit-II....
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....le service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products up to the place of removal, and includes services used in relation to 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 up to the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation up to the place of removal, but excludes services,- (A) ............ (B) specified in sub-clauses (d), (o), (zo) and (zzzzj) of clause (105) of section 65 of the Finance Act, in so far as they relate to a motor vehicle except when used for the provision of taxable services for which the credit on motor vehicle is available as capital goods; or (C) .......... From 01.04.201....
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.... vehicles taken on rent by the appellants from other input service providers are further rented out to the clients in the course of providing Facility Management Services. In a way, the appellant has both availed the "Rent-a-Cab Services" and provided the same to their clients. We find that CENVAT Credit Rules, 2004, expressly prohibit the availment of CENVAT credit on Rent-a-Cab Services as input services. Learned Commissioner has correctly held that: 25.3 From the above definition I find that w.e.f. 01.04.2011 the rent-a-cab service is covered under the exclusion part of the definition of input service and the Cenvat Credit of rent-a-cab service is available only when the Motor vehicle is a Capital Goods for the service provider. In the present case the noticee has not provided any taxable service for which the credit on motor vehicle is available as capital goods, the Noticee's contention that the motor vehicle is indirectly capital goods in their case, but I find that they have not produce any documentary evidence that the motor vehicles are registered on the name of the company and when the motor vehicles are not registered on the company's name how they can c....
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....are not capital goods for the services recipient. We find that Hon'ble High Court of Mumbai in the case of Solar Industries India Ltd 2022 (60) GSTL 216 (Bom.) held that 5. We have heard the Learned Counsel for the parties at length and we have perused the order passed by the Tribunal disallowing the claim for Cenvat credit. It was found by the Tribunal that by virtue of the amendment dated 1-4-2011 rent-a-cab service had been excluded from the definition of the term "input service". The same was in three limbs and the material basis for denying such Cenvat credit was in view of Clause (B) to Rule 2(1) of the said Rules. We find that the Tribunal was justified in disallowing Cenvat credit for the reasons mentioned in the impugned order. This is also clear from a reading of Section 65(105) of the Finance Act which excludes rent-a-cab The scheme. transportation of employees from distance of about 40 kms. for reaching factory is not an activity which could be said to be a part of manufacturing activity. It is merely for personal convenience of the employees to enable them to reach the premises of the factory so as to thereafter participate in the manufacturing activity. I....
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....the confirmation of demand of ineligible CENVAT credit availed by the appellants on Rent-a-Cab Service after 1.4.2011. 15. Coming to the demands confirmed in respect of the allegation of wrong availment of exemption from payment of service tax on Real Estate Agent Service provided to SEZ units provided by the appellants to the SEZ developer and the SEZ Units, we find that though in principle, the decisions cited by the appellants are in their favour, Learned Adjudicating Authority finds that the appellants have not submitted requisite proof that the said services have been provided to SEZ or units in SEZ. We find that Tribunal in their own case supra has remanded the matter back to the original authority for inspection of invoices to determine whether the supply of said services was made to the SEZ units or not. We do not find any reason to differ with the decision of the co-ordinate Bench as in the impugned case too, the appellants did not provide necessary documentary proof to the lower authorities. Therefore, we find that it is in the interest of justice that the matter travels back to the original authority to verify the invoices/ documents that may be submitted by the appel....
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....by the inclusive part of the definition and it is used only when output service is complete and delivered. 6. On the question as to whether the professional indemnity insurance service has nexus with output service, I completely agree with the analysis of the Commissioner (Appeals) in the following paragraphs extracted from the Order-in- Appeal: "The Definition of Input Service Rule 2 (I) of Cenvat Credit Rules, 2004 defines the Input Service w.e.f.01.07.2012. "(I) 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 up to the place of removal, and includes services used in relation to 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 up to the place of removal, procurement of inputs, accounting, auditing financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry,....
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....overed under definition of input service. 7. I find that the adjudicating authority has allowed refund for general insurance service for employees, equipment and property, for insuring the company against unforeseen circumstance. On the same analogy, the professional indemnity insurance service has to be viewed in the context of providing the consultancy or other professional services, where the assessee has to safeguard itself against unforeseen legal damages/costs due to negligence or other bona fide mistakes of the employees/partners. Hence, the professional indemnity insurance service is an essential ingredient for providing the output service and has direct nexus with the providing of output service. 18. We would like to take up the issue of limitation. We find that the Department has invoked extended period of limitation under proviso to Section 73(1) of the Finance Act, 1994. However, the ingredients to invoke extended period of limitation have not been evidenced. No positive act of mis-statement, suppression of facts etc. with intent to evade payment of duty have been brought on record. It is on record that the audit of the appellant's records has been condu....