HighCourt
- Cenvat credit - outdoor catering- eligible to extent borne by employer (Dalmia cement Ltd. 2015 (39) S.T.R. 982 (Mad.)
- Manufacturer availing outdoor catering services provided to employees.
- Cenvat credit of service tax paid eligible. If cost recovered from employees, credit cannot be claimed to that extent.
Comment: The judgment has been rendered for issue prior to 1.4.2011. Since then, the definition of input service has been amended to exclude the catering services primarily used for personal consumption of employees. In our view, credit could be still availed if the facility has been extended to all the employees/workers employed by the employer, since it is not primarily for personal consumption of employees.
- Recovery provisions under section 87(b)(iii) of Finance Act, 1994 invokable after determination of amount due (GSP Infratech Development Ltd. 2015(39) S.T.R. 945 (Kar.)
- Recovery proceedings under section 87(b)(iii) can be applied on conclusion of adjudication proceedings under section 73 and determination of amount of liability.
- Freezing of bank account on directions of Directorate General of Central Excise Intelligence (DGCEI) without determining the amount due is illegal.
- Letter issued by DGCEI to bank asking not to allow withdrawals from bank account is not correct and the letter quashed.
- Deputy commissioner cannot refuse to give authorization in form A-2 when due approval obtained from ‘Approval Committee’ (Sai Wardha Power Company2015 (39) S.T.R. 953 (Bom.)
- Exemption to SEZ Unit under Notification No. 12/2013 is available once approval obtained from ‘Approval Committee’ to list of service for which exemption claimed.
- There is nothing in impugned notification that positive NEF has to be achieved for availing exemption. Hence Deputy Commissioner of Central Excise cannot refuse to give authorisation in Form A-2.
Comment: Form A-2 are not issued in certain Commissionerate on the premise of the possible evasion of tax or other clerical mistake in making application. This judgment has held that when inbuilt safeguard mechanism have been built in Notification itself, department officers not authorised to deny benefit on arbitrary basis and bound to issue Form A-2.
- Adjudication order and communications sent at wrong address and ex parte order passed is violation of principle of natural justice (Ventrapathi Financial Services 2015 (39) S.T.R. 956 (A.P.)-Service of Order
- The assessee has been served adjudication order and other communications at wrong address. The order has been passed ex parte as assesse could not reply. The assessee came to know by bank when recovery proceedings initiated.
- Department has violated provision of statutory requirements of serving notice by dispatching order at wrong address. Hence order set aside. communications sent at wrong address and ex parte order passed is violation of principle of natural justice
Advance Ruling
- Membership fee received by club from its members is taxable service (M/s Emerald Leisures Limited 2015-TIOL-07-ARA-ST)
- Deeming provision has been introduced with effect from 01.07.2012 to the effect that the club and members are deemed to be separate persons.
- The principles of mutuality laid down by the courts for the period before 01.07.2012 are no more relevant. Hence membership fee, annual fee and other charges received form members from time to time are liable for service tax.
Comment: The decision has not dealt the principle which was laid down by Jharkhand High Court which in our view can be applied even after the amendment made post July 2012 as the wordings similar to explanation 3 to definition of service was existing in explanation to section 65.Until the issue is finally decided by Hon’ble Supreme Court, the decisions of Jharkhand High Court and Gujarat High Court is going to apply.
TRIBUNAL
- Reimbursable expenses not to be included in computing gross value of service ( Tetra Pak India Pvt. Ltd. 2015 (39) S.T.R. 995 (Tri.- Mumbai)
? Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 has been held ultra virus by Delhi HC in case of Intercontinent Consultant & Technocrats Pvt Ltd. Reimbursable expenses incurred for travelling, lodging & boarding and hotel charges are not liable to be included in gross value of service.
Comment: With the budget amendment 2015-16, the definition of consideration as provided in explanation 2 of section 67 of Finance Act has specifically included reimbursable expenditure. Hence, the ratio of the judgment may not be relevant post 14th May 2015.