|
|
 |
| Classification of taxable service – C & F Agent Service |
| The assessee and ONGC were participants of a joint venture formed for exploration and development of petroleum resources. Under an oil transfer agreement, assessee transferred crude oil of ONGC through pipeline to ocean tankers. Service tax was demanded from the assessee under the category of clearing and forwarding agent. On appeal, it was held that, the relationship between the assessee and the ONGC were on a principal to principal basis and had only stored crude oil and transferred it through pipeline. It was also found that the assessee was paying service tax under the category of 'transport of goods through pipeline'. Hence, it was declared that, the service rendered by the assessee do not fall under C&F Agents Service. |
|
| Cairns Energy (India) (Pty.) Ltd. Vs CC & CE
[2009]20
ST 178 (BANG. – CESTAT) |
|
 |
| Penalty, not to be imposed in certain cases |
| The assessee was engaged in the business of software development and training in SAP to corporates. They did not pay service tax since they had a doubt about the levy of service tax on the training provided along with the software development. However, during the course of investigation, they paid the entire service tax along with interest. On adjudication, penalties were imposed against the assessee. It was held that, since the assessee did not have the intention to evade payment of service tax and that it was under the belief that it would not be liable to service tax, penalties could not be imposed on the assessee although interest is leviable. |
|
| C. Ahead Info Technologies India P. Ltd. Vs. CCE[2009]20STT 190(BANG. -CESTAT) |
|
|
| Commercial or Industrial Construction service |
| The assessee had constructed civil structures for Central Government Department and for public sector undertakings. Service tax was demanded from the assessee under the category of Commercial or Industrial Construction Service. However, it was found that the department had classified similar activity under Works Contract service. It was held that, since the definition of Commercial or Industrial Construction service was not modified when works contract services are brought under the tax net, demand of service tax were wrongly found to be due from assessee. |
|
| URC Construction (P) Ltd. Vs. CCE [2009]
20 STT 27 (CHENNAI – CESTAT) |
|
|
| Sales tax on separate sale of SIM cards |
| The assessee received commission for selling SIM cards of a Cellular service provider. Service tax was demanded from the assessee under the category of Business Auxilliary Service. It was observed that, if the SIM card is supplied as a part of service rendered by the service provider, then it would not be charged separately to sales tax. But in the present case, it is a separate object of sale. Hence, Commissioner (Appeals)held that sale of SIM cards was sale of goods. |
|
| CCE Vs. Garage Tools Corporation
[2009]
20 STT
30 ( NEW DELHI – CESTAT) |
|
|
| Recovery of service tax, not paid or levied |
| The appellant rendered taxable service under the category of Rent a cab scheme operator service. He had not followed any statutory obligation like registration, payment of service tax. On issue of show cause notice, the appellant contended that, it was ignorant of the legal provisions and had not wilfully suppressed any fact from the department. The order for demand of service tax and penalty was set aside since the show cause notice did not allege suppression and did not invoke larger period. |
|
| R. Deivendran Vs. CCE
[2009] 20
STT 50 (CHENNAI – CESTAT) |
|
|
| Service tax on service received from outside India |
| The assessee had paid commission to an overseas agent, who had no office in India, for receiving certain services. Service Tax was conformed on the assessee. The demand was set aside on the ground that off shore services are liable to service tax only with effect from
18-4-2006, after insertion of Section 66A and not prior to that period. |
|
| Active International Vs. CCE
[2009] 20 STT
150 (NEW DELHI – CESTAT) |
|
|
| Penalty, not to be imposed in certain cases |
| The assessee a cable operator, excluded from the total value, amounts collected from subscribers towards pay channels. On being pointed out, assessee discharged its liability on the
said excluded amount. However, penalty was imposed on the assessee. The penalty was set side on the ground that, the assessee had a belief that the said amount received was not includible in total value.
|
|
| CCE Vs. Home Entertainment Network[2009]20STT
241(NEW DELHI – CESTAT) |
|
|
| Cenvat credit on mobile phone services |
| Cenvat credit of Service tax paid on mobile phone services was availed by the assessee. The adjudicating authority denied the credit that mobile phones were not installed in the factory premises and therefore could not be treated as ‘input service’. It was clarified that credit cannot be disallowed on the fact that the phones were not installed in the factory premises. |
|
| Cairns Energy (India) (Pty.) Ltd. Vs CC & CE[2009] 20 STT
17(BANG. – CESTAT) |
|
|
| Clarification regarding “commission” paid to Director / Employee of a Company |
| Action taken by an employee for the benefit of the employer cannot be in the nature of service. So long as the activities performed are duties within the framework of the terms of employment, the amount paid by an employer to an employee, even if it is termed as commission, would not be treated as commission mentioned under the definition of Business Auxilliary Service. |
|
| Trade Notice No.
15/2009 2009 (20) STT
20 |
|
|
| Erection, Commissioning and Installation service |
| Assessee was engaged in the manufacture and selling of medical equipments. They provided services of training, erection, commissioning, and installations of machines sold at customers place. Service tax was demanded from the assessee under the category of 'Erection, Commissioning and installation service'. It was held that, since the activity of installation, erection and commissioning was only incidental to delivery of goods and that there was no separate contract for the same, the charges for the same were included in the value of equipment. Hence, the order was set aside. |
|
| Allengers Medical Systems Ltd. Vs. CCE 2009 (20) STT287 (NEW DELHI – CESTAT) |
|
|
| Disclaimer |
| This is not advice. The recipient should not act solely on the basis of the material contained herein. Contents herein are general in nature and do not constitute or convey advice per se. Also, changes in legislation may occur quickly. The material herein is issued as a helpful guide to the reader, for their private information. Therefore it should be regarded as confidential and not be made available to any person without our prior approval. We therefore recommend that our formal advice be sought by contacting the following address before acting in any of the areas: |
|
| Carvalho Associates |
| Chartered Accountants |
| 2B, Park Centre, |
| 25, Venkatanarayana Road, |
| T.Nagar, Chennai -
600 017 |
|
| Phone :
+91 - 44 - 4212 6808 |
| Email : mail@carvalho-associates.com |
|
