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Service Tax - Case Laws

Showing 101 to 120 of 150 Records

• 2012 (7) TMI 285 - CESTAT, MUMBAI
  

  Reclassification of service - maintenance and repair service – Held that:- appellant has never disputed the classification of service and they have been discharging the service tax liability under the category of “Consulting Engineers” right from the beginning. Issue of classification of service was never a point for decision before the adjudicating authority and the only point for decision was the valuation of the services rendered. Any change in classification can only be prospective and the issue has to be raised before the appropriate authority for consideration and decision. Miscellaneous application is non-maintainable.

  Value of such taxable service - electricity is supplied free of cost by the service receiver – Held that:- electricity is required for rendering the service of operation and maintenance of the plant, then the cost of supply of electricity is a consideration for the service rendered and such cost will have to be included in the value of the taxable services rendered. Appellant directed to make a pre-deposit of Rs.1.00 Crores.

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• 2012 (7) TMI 284 - CESTAT, NEW DELHI
  

  Valuation - transportation of passengers for International journey by air along with other services to its clients - While issuing tickets to the passengers, they were collecting passenger service fees (PSF) on behalf of the International Airport Authority of India (IAAI) and remitting it to IAAI - They had not included these amounts collected from the passengers, in the value of their services – Held that:- As per Section 67 of the Finance Act, 1994, the value of any taxable service shall be the gross amount charged by the service provider for such service provided or to be provided. The amount in question is not paid for the services provided by the appellants. Wavier of pre-deposit granted.

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• 2012 (7) TMI 258 - CESTAT, AHMEDABAD
  

  Service tax on waterfront royalty and way leave facility compensation - extended period of five years has been wrongly invoked - Held that:- Commissioner has come to the conclusion that there was suppression of facts only on the ground that the agreement was drafted in a complicated manner with intention to evade payment of duty. For this, there is no evidence forthcoming and it was submitted that agreement was entered into before the liability of Service Tax arose. This submission would show that invocation of extended period is not based on a strong ground and the appellant has been able to make out a prima facie case as far as extended period is concerned - as extended period should not have been invoked and stay was granted directing the appellant to deposit an amount of Rs.25 lakhs, as condition of hearing of their appeal - in favour of assessee

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• 2012 (7) TMI 257 - CESTAT, KOLKATA
  

  Invocation of section 80 - Service of Rent-A-Cab scheme to another operator of rent-a-cab – non-payment of service tax under the bonafide belief that Service Tax is not applicable to them as they were providing services of rent-a-cab operator to another rent-a-cab operator and not to clients directly as per circular of CBEC bearing F. No. B 43/7/97-TRU dated 11.07.97 - Additional Commissioner's denial of benefit on the ground of non-segregation of amount fortifies the reason of their bonaflde belief that their service was not taxable - Additional Commissioner did not show any reason why the appellant's appeal and grounds for invocation of section 80'could not be given any cognizance to – Held that:- They paid the tax and interest when non-applicability of the said notification was pointed out to them without going into any dispute. This bona fide conduct as also argument of the appellant showing sufficient and reasonable cause for the failure certainly call for invocation of I section 80 of the Act – Commr. (Appeals) has rightly invoked Section 80 of the Finance Act.

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• 2012 (7) TMI 256 - CESTAT, MUMBAI
  

  Waiver of pre-deposit - Demand of service tax - Advertising Agency Service - For the selling activity in Ukraine, the applicants have appointed dealers/agents for promoting the sale of the applicant's products – Held that:- Dealers/agents are promoting the business of the applicant and they are not the advertising agency, therefore, the demands in the category of advertising agency is not sustainable. In favor of appellant.

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• 2012 (7) TMI 255 - CESTAT, NEW DELHI
  

  Business Auxiliary Service - procuring blank cards, loading operating system on these cards, obtaining photo/thumb impression and other information, storing and printing the said information in the card, and ultimately dispatch the loaded cards to the customers on behalf of the transportation authority on B.O.T. basis.- assessee contested that it operated under a contract to build a system for benefiting the Regional Transport Authority and District Transport Authority as well as the consumers - Held that:- Looking into the functional specifications and reading all these clauses states that the appellant carried out specific independent activities with different kinds of remuneration, package for such works. There was also no split of the contract made to examine different aspects to ascertain taxability - when there is no effort made to judge the activity carried out by the appellant in accordance with the letters of law, adjudication fails to sustain.

  Revenue also fails to get helping piecemeal reading of the law without proving that the services provided by the appellant was auxiliary in nature to serve the purpose of business of client - in favour of assessee.

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• 2012 (7) TMI 254 - CESTAT, NEW DELHI
  

  Demand of service tax - 'consulting engineers service' - payments made to the foreign consultant - services having been provided before 18.04.06 – Held that:- no clear findings given by adjudicating authority in spite of all relevant documents presented before him. Law has undergone evolution. Authority should be very specific to bring out what was the activity carried out, nature of same. Matter remanded.

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• 2012 (7) TMI 227 - CESTAT, CHENNAI
  

  Referral charges which was the consideration received by appellant from the banks for promoting and marketing their services – Held that:- Adjudicating authority found that agreements were entered into by the appellant with ICICI Bank, HDFC Bank and Oriental Insurance Company to provide them infrastructural facility by its dealers and authorized service centres to promote their business extending the credit facility and insurance service to the prospective customers identified by appellant - Facts and evidence aforesaid when tested on the touch stone of Section 65 (105) (zzb) read with Section 65 (19) of the Act that warrants taxation of the consideration received by the appellant from banks and insurance company as business auxiliary service provider and the service so provided becomes input service for banks to provide the output service of banking and financial service as well as insurance service by insurance company. Thus, the business auxiliary service provided by the appellant during the impugned period was liable to be taxed and that has rightly been done in adjudication without calling for interference in this appeal.

  Regarding penalty – Held that:- knowable breach of law made the appellant to suffer adjudication. Accordingly, no immunity from penalty is possible to be granted on the plea of tax compliances made which was found to be a case no payment of tax on the impugned services provided during the relevant period - penalty under Section 78 will meet the ends of justice and hence separate penalty under Section 76 is set aside - appeal is dismissed except for allowing the cum-tax benefit, and setting aside penalty under Section 76.

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• 2012 (7) TMI 226 - CESTAT, AHMEDABAD
  

  Taxability - discounts/incentives received by appellant as an advertising agency from the Media - Held that:- Issue has been decided in favor of assessee in earlier year, wherein it was held that discounts/incentives received by the assessee from the print media will not be liable for service tax under the category of advertising agency services. If that be so, the said discounts/incentives itself cannot be considered for the purpose of taxability under the head business auxiliary services as the amounts which are received are in respect of the services provided under the category of advertising agency services and the amount are discounts and incentives and not as charges for services - Decided in favour of assessee.

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• 2012 (7) TMI 225 - CESTAT, AHMEDABAD
  

  Cenvat credit - service tax paid on GTA for outward transportation – Held that:- In the definition of 'input service' the term 'upto the place of removal' is substituted by 'from the place of removal' w.e.f 01.04.2008. Matter remanded to the original adjudicating authority for denovo adjudication.

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• 2012 (7) TMI 224 - CESTAT, MUMBAI
  

  Demand of service tax - 'Commercial or Industrial Construction Service' - services of repair, renovation, widening of roads and construction of toll sheds, providing electrification of high mast poles at toll sheds etc. – Held that:- in the view of Board's Circular No. 110/4/2009-ST dated 23.2.2009. Activity undertaken by the appellant is not covered under the category of "commercial or industrial construction service"

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• 2012 (7) TMI 223 - CESTAT, NEW DELHI
  

  Cenvat credit - outward transportation of goods up to the place of their buyers - supplies made by them to their buyers of FOR destination basis – Held that:- Assessee is eligible for cenvat credit for the period prior to 1.4.2008. Appeal is allowed

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• 2012 (7) TMI 199 - CESTAT, AHMEDABAD
  

  Stay petition - appellant herein has already deposited an amount towards service tax liability, interest and penalty – Held that:- Amounts deposited by the appellant as enough deposit to hear and dispose the appeal - Stay petition is allowed and application for waiver of pre-deposit of balance amounts is allowed - If the appellant is able to satisfy the lower authorities they are eligible for the benefit of small scale service provider under the Notification No 6/005-ST, than the service tax liability on the appellant would reduce considerably - matter remanded back to the adjudicating authority to reconsider the issue afresh

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• 2012 (7) TMI 196 - CESTAT, AHMEDABAD
  

  Penalty - Invocability of extended period - Appellant company is engaged in the manufacture and supply of Wind Energy Turbines within and outside India - appellant voluntarily paid the Service Tax and interest thereon on 06.02.2007. Proceedings were initiated by way of issuance of Show Cause Notice on 24.04.2009 – Held that:- Invocability of extended period in cases where the receiver of Service Tax is eligible to avail CENVAT Credit, is no longer res-integra and in such cases, it has been held that no penalty can be imposed - when the situation is revenue neutral and the appellant manufacturer is entitled to CENVAT Credit, it cannot be said that there was an intention to evade duty and extended period can be invoked - penalty imposed on the appellant cannot be sustained – In favor of assessee

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• 2012 (7) TMI 195 - CESTAT, AHMEDABAD
  

  Abatement in respect of amount charged by GTA - Notification No 32/2004 - denial on ground that appellants have filed only revised declaration from the transporter for non-availment of CENVAT Credit of input or capital goods but has not filed such declaration on each and every consignment - Held that:- Issue is no more res-integra. High Court in case of Neral Paper Mills Pvt.Ltd (2010 (9) TMI 297 (HC)) held that exemption is provided by way of notification and the Board can prescribe the procedure for availing the benefit of the said exemption notification. When nothing has been brought on record or alleged that GTA has availed credit on inputs and capital goods, denial of benefit of Notification No. 32/2004 is not correct in law. Following aforesaid decision issue decided in favor of assessee.

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• 2012 (7) TMI 194 - CESTAT, AHMEDABAD
  

  Mandap Keeper services - abatement of the value of the food provided - denial of benefit of Notification No.1/2006 - Held that:- Since the aspect that whether any CENVAT Credit is availed by appellant of any services, input or capital goods, required for rendering the services of Mandap keeper has not been verified. Therefore, matter remanded back to adjudicating authority to reconsider the issue afresh.

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• 2012 (7) TMI 193 - CESTAT, AHMEDABAD
  

  Dismissal of appeal for non-compliance of the pre-deposit ordered - issue involved, whether services rendered as to the measurement of land would fall under the category of Consulting Engineering service - period July 2001 to March 2004 - Held that:- Definition of Consulting Engineers during the relevant period needs to be considered by first appellate authority before coming to any conclusion. Since the issue has not been addressed by the first appellate authority on merit, therefore, in the interest of justice, the matter needs to be reconsidered by first appellate authority. Also, appellant has made out a prima facie case for waiver of pre-deposit of amounts involved - appeal allowed by way of remand to first appellate authority.

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• 2012 (7) TMI 192 - CESTAT, AHMEDABAD
  

  Refund of the service tax, which was used as input services for export of goods under Notification No 41/2007 - Adjudicating authority, after considering all the evidences which were produced before him, allowed the refund claim filed by the assessee - objections to the grant of refund – Held that:- Grant of refund of duty or any other sum due to an assessee should not be denied for mere technical or procedural lapses if it is otherwise due substantively on merits - Matter remanded to the reviewing authority - Appeal is allowed by way of remand.

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• 2012 (7) TMI 191 - CESTAT, CHENNAI
  

  Valuation under service tax - inclusion of TDS (withholding tax) where burden born by the recipient (payer) in the gross value - Technical consultancy and project consultancy services - Held that:- As per Section 66A the service covered by that section is treated as if the recipient had himself provided the service in India. Thus by such legal fiction the consideration inclusive of income tax deducted at source shall be assessable value for the purpose of the Act in the hands of the service recipient - No pleading on material facts by the appellant as to how the facts in issue suggest and support defence of appellant that income tax deducted at source shall not form part of the gross amount of taxable service received when Rule 7(1) of Service Tax (Determination of Value) Rules, 2006 provides that actual consideration charged for the service provided or to be provided shall be assessable value in respect of services covered by Section 66A.

  The agreement with the service providers abroad speaks of the price of contract payable was net of taxes and taxes if any payable in addition to the price of contract was payable by the payer thereon as price of the contract and such factual aspect remaining unrebutted by appellant clearly establishes that tax payable in India was to form part of contract price. Thus consideration charged for the service provided shall include income tax deducted at source as per terms of contract and is in accord with Section 66A read with Rule 7(1) of the Service Tax (Determination of Value) Rules 2006.

  There shall not be levy of service tax on the engineering consultancy services availed from foreign consultant abroad prior to 18.4.2006, and at the applicable rate for the period 19.4.2006 to 30.9.2007 on the gross amount of consideration inclusive of income tax deducted at source - no levy of penalty u/s 78 considering the difficulty in understanding the law applicable at inception and date of incidence to taxability - partly in favour of assessee.

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• 2012 (7) TMI 165 - CESTAT, AHMEDABAD
  

  Export of goods - denial of refund of cenvat credit on the ground that the appellant is not eligible for the refund of service tax paid on input services i.e. on Terminal Handling Charges - terminal handling charges and REPO charges were paid to JNPT/NSICT and GTIL port services – Held that:- Department could have easily verified whether THC and REPO charges were actually charges paid towards service tax for port services or not since Expressing Shipping and Logistics clearly says that whatever they have collected they have paid to the port authorities. Once REPO have been allowed, no justification to deny terminal handling charges – in favor of assessee

  Regarding bill of lading charges - no certificate given by Express Shipping and Logistics and from the invoices also it cannot be found out as to under which category of services the service has been classified - Since refund of service tax is allowed based on specific category of services, it is necessary for the refund sanctioning authority to know under which head service tax has been paid - as regards service tax on bill lading charges, the matter is remanded to the original adjudicating authority - in favour of the assessee

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