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Subject News *  Documentary evidence dominates probe, further custody unwarranted: mumbai court grants bail in Rs. 22.44 crore customs duty evasion case. *  Business premises can’t remain sealed for non-participation in GST search: Allahabad High Court. *  GST pre-deposit must be refunded proportionately when taxpayer partly succeeds in appeal: Bombay High Court. *  Supreme Court grants 30 days to file GST appeal; keeps pre-deposit issue open due to deposit in parallel CGST proceedings. *  GST demand can’t exceed amount proposed in SCN: Allahabad High Court quashes Rs. 20.47 Crore order. *  Hundreds-of-crores GST demand and heavy 10% pre-deposit no ground to bypass statutory appeal: Punjab & Haryana High Court. *  Delhi High Court refuses to entertain challenge to gold confiscation due to statutory appeal remedy and unexplained delay. *  Procedural error in customs broker licence inquiry can be rectified through remand: Delhi High Court. *  GSTR-2A mismatch alone can’t justify ITC denial without invoice-wise verification; personal hearing mandatory: GSTAT. *  GST order passed without uploading personal hearing notices violates sec. 75(4): Allahabad High Court. *  TAX EVASION - Sec. 74 GST SCN quashed for not spelling out fraud, wilful misstatement or suppression: Allahabad High Court. *  STPI’s SOFTEX certification and NoC charges taxable as business support services: CESTAT. *  Suspicion can’t replace proof: CESTAT quashes penalty in alleged gold-smuggling operation. *   Limitation runs from communication of order: Madras High Court upholds rejection of delayed GST Appeals. *  Rajasthan High Court quashes GST demand over unsigned show cause notice. *  ITC recovery upheld where supplier failed to deposit GST: Rajasthan High Court. *  Customs commissioner’s empowered to make port trust liable for duty on pilfered goods: Supreme Court. *  Rectification proceedings can’t be used to challenge an uncontested GST assessment through a writ petition: Andhra Pradesh HC. *  GST proceedings against deceased proprietor unsustainable without notice to legal heir: GSTAT. *  Mere availment of ineligible self-assessed ITC doesn’t amount to suppression without evidence of fraud or wilful misstatement: GSTAT. *  Disposal of mining overburden by entity authorised by mining lease holder constitutes taxable service: CESTAT. *  Toll plaza data not mandatory for ITC refund: GSTAT. *  Disputed GST fraud allegations require investigation: Punjab and Haryana High Court makes interim bail absolute in alleged fraud and GST fraud case. *  Non-manufacturer contractor liable to deposit excess excise duty collected from buyer: CESTAT. *  GST order can’t reject taxpayer’s reply as “not satisfactory” without reasons: Madhya Pradesh High Court. *  Uncorroborated statements can’t establish alleged diversion of duty-free goods: CESTAT. *  Erection services were not liable to service tax prior to 10th september 2004: CESTAT. *  Sec. 74 GST notice must spell out statutory ingredients for invoking extended tax demand proceedings: Allahabad High Court. *  No jurisdictional bar under section 6(2)(b) in parallel CGST SGST proceedings: Delhi High Court refuses to bypass GST appeal remedy. *  Madras High Court remits GST demand for fresh adjudication after taxpayer claims it was unaware of SCN following business closure.  

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PJ/CASE LAW/2014-15/2409

Whether re-shelling of old sugar mills rollers leviable to service tax under repair and maintenance service?
Case:- COMMISSIONER OF CENTRAL EXCISE, KOLHAPUR V/S S. B. RESHELLERS PVT. LTD.
 
Citation:- 2014 (340 S.T.R. 605 (Tri. – Mumbai)
 
Brief facts:- Brief facts of the case are that the respondent are engaged in providing services of re-shelling of old sugar mills rollers. Show cause notice was issued to the respondent demanding service tax under Maintenance or Repair Service as defined under section 65(64) of the Finance Act, 1994. The adjudicating authority confirmed the demand and imposed penalties. The respondent filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) held that the value of material used in providing service is not to be taken into consideration while arriving at the assessable value of taxable service. 
 
Appellant’s contentions:-Revenue filed this appeal on the ground that the value of material is to be included in the value of service as the material is not separately supplied but the same is consumed during re-shelling of old rollers.
 
Respondent’s contentions:- The contention of the respondent is that the demand is for the period from 1-7-2003 to 10-9-2004 and the definition of Repair and Maintenance Service is amended with effect from 16-6-2005. The contention is that prior to 16-6-2005 if the repair is carried out under maintenance and repairs contract or agreement the same is liable for service tax and relied upon Board’s Circular F. No. B1/6/2005-TRU, dated 26-7-2005.
 
Reasoning of judgment:- We find that in the present case, there is no maintenance contract or agreement. Therefore, there is no merit in the appeal filed by Revenue, in view of this board’s Circular dated 27-7-2005, wherein it has been clarified in para 16.4, that prior to 16-6-2005 maintenance or repair carried out under an agreement or contract was covered under the service tax. Repairs and service carried out under a contract other than a maintenance contract was not covered within the purview of service tax.
 
Revenue has only raised the issue of valuation of taxable service. In view of the above finding as the activity is not liable for service tax, we find that the issue of valuation will not survive.
 
Decision:- The appeal is dismissed.
 
Comment:- The analogy of the case is that the issue involved in the case is related to prior period from 16-6-2005 wherein the definition of Maintenance and Repairs services stated that repair services provided in terms of a contract is leviable to service tax. Accordingly, as in the present case, there was no agreement for repairs and the issue is also prior to 16-6-2005, it was concluded that no service tax is leviable. As the revenue was in appeal on the valuation issue, the same was also rejected because when there is no liability to service tax, the question of valuation does not arise.
 
Prepared by:- Monika Tak
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