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Service Tax - Case Laws
Showing 61 to 80 of 29303 Records
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2024 (4) TMI 679
Classification of service - Business Support Service or Renting of immovable property - appellant is an operator of individual or multiple cinemas screen at multiple complexes as owner/lessee having ownership/lease hold rights - HELD THAT:- There is no service as such which has been provided by the appellant to the distributors. The appellant has agreed for exhibiting the distributor’s film without any interference of the said distributors. The distributors had actually granted licence to exhibit the theatrical exihibition rights of the film in the lincesed theatre.
As far as the time and number of shows are concerned, the distributor has agreed for getting share in the Revenue collected from the sale of the tickets that to within 10 days of completion of every week to which it pertains. The agreement clarifies that it is the transfer of copyright by the distributor in favour of the appellant to the exclusion of all including the owner of the said copyright.
The issue is otherwise no more res-integra. Various decisions have clarified that Revenue sharing arrangement in itself does not necessarily imply provision of service, unless service provider and service recipient relationship is established - reliance can be placed in DELHI INTERNATIONAL AIRPORT P. LTD. & MUMBAI INTERNATIONAL AIRPORT P. LTD. VERSUS UNION OF INDIA & ORS. [2017 (2) TMI 775 - DELHI HIGH COURT] - there is otherwise nothing on record to establish the said relationship.
There are no reason to differ with the findings arrived at in the Order-in-Appeal, the same is accordingly upheld - appeal of Revenue dismissed.
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2024 (4) TMI 678
Classification of service - Business Auxiliary Services or not - process of washing of coal - period 16.06.2005 to 31.03.2007 - HELD THAT:- The decision of the Tribunal in ARYAN ENERGY (P) LTD. VERSUS COMMR. OF CUS. & C. EX., HYDERABAD-I [2008 (5) TMI 248 - CESTAT BANGALORE], M/S SPECTRUM COAL AND POWER LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2012 (9) TMI 24 - CESTAT, NEW DELHI] and M/S. ARYAN COAL BENEFICATIONS PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX NEW DELHI [2012 (9) TMI 205 - CESTAT, NEW DELHI] have consistently held that the activity of beneficiation of coal by the assessee is part of mining activity and, therefore, would be liable to service tax only w.e.f. 1.6.2007 and once it is established that the activity is mining, it cannot be taxed under the “Business Auxiliary Service” for the period prior to 1.6.2007.
It is found that it is settled by the judicial pronouncements that the activity of beneficiation/washing of coal is a taxable service in relation to mining of minerals only w.e.f. 1.6.2007 and, therefore, the Commissioner rightly decided that no demand can be made by the Department for the period prior to 01.06.2007 under the category of “Business Auxiliary Service”.
There are no reasons to differ from the settled law and which is squarely applicable in the facts of the present case - The impugned order is accordingly affirmed - appeal filed by the Revenue stands dismissed.
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2024 (4) TMI 677
Classification of services - mining services or not - hiring pay loader and tipper/dumper for loading - HELD THAT:- The findings of Bombay High Court in the case of INDIAN NATIONAL SHIPOWNERS' ASSOCIATION VERSUS UNION OF INDIA [2009 (3) TMI 29 - BOMBAY HIGH COURT] have been quoted by the Adjudicating Authority and it has been held that the transportation of coal as performed by the Assessee herein on tippers/trucks upto siding has no direct/indirect nor any proximate relation with the mining of coal (mining activity).
The issue is no more res-integra, the authorities have rightly followed the judicial discipline while applying the ratio of the Hon’ble Supreme Court’s decision in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT]. Hence, there are no infirmity in the order under challenge.
The order under challenge is hereby upheld - the appeal filed by the department is dismissed.
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2024 (4) TMI 676
Recovery of service tax alongwith interest and penalty - Business Auxiliary Service - the facts and the law and binding judicial precedents on the identical issue not properly appreciated - violation of principles of natural justice - Extended period of limitation - HELD THAT:- The identical issue has been considered by the Tribunal in the case of M/S S.R. MEDICAL AGENCIES VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-II [2023 (8) TMI 1150 - CESTAT CHANDIGARH] and this Tribunal after considering all the submissions of both the parties has held This issue has been considered by various benches of the Tribunal and has consistently been held that the assessee is not liable to pay service tax under the category of ‘Business Auxiliary Service’.
The impugned order is not sustainable in law and therefore, the same is set aside - appeal allowed.
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2024 (4) TMI 675
Levy of penalty upon both the appellants, being the Director/ Authorized Signatory in terms of Section 78A of Finance Act, 1994 - benefit of Section 124 (1) (b) of SVLDRS - HELD THAT:- Apparently and admittedly, it was the main co-noticee i.e Wisdom Guards Pvt. Ltd. who has been issued the discharge certificate (SVLDRS Form No. IV) under the SVLDRS, Scheme, 2019. There are no such provision in the scheme which may extend immunity to the other co-noticees because of the discharge certificate in favour of the one of the co-noticee. Hence, the said contentions of the appellant not agreed upon.
Coming to the another aspect of Section 78A of Finance Act to have been introduced only w.e.f. 10.05.2013, we hold, based upon the settled position of law, that all provisions of statute have to be given prospective effect unless and until, they are expressly made to apply retrospectively. Section 78A of the Act is perused. There is nothing in the Section to reflect that the section has to be applied retrospectively - the section can be invoked w.e.f. 10.05.2013. The period involved in the present appeal is 2011-2012 to 2013-2014. Hence, it is clear that the periods is pre as well as post the insertion of Section 78A in the impugned Act - there are no reason to extend any benefit of said provisions to the appellant.
Appeal allowed in part.
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2024 (4) TMI 674
CENVAT Credit - non-payment of amount equivalent to 6% on the value of exempted services as required under Rule 6 (3) (i) of Cenvat Credit Rules, 2004 - HELD THAT:- In the present case, it is observed that, undisputedly entire Cenvat credit taken/availed by the appellant during the period under dispute, whether in respect of taxable service or exempted service, have been deposited along with interest well before the issuance of the show cause notices and got appropriated by the adjudicating authorities vide the impugned order. The law in this respect is settled that if credit originally availed is reversed subsequently it would amount to as if not credit has been awaited.
Support drawn from the decision of Hon’ble Supreme Court in the case of CHANDRAPUR MAGNET WIRES (P) LTD. VERSUS COLLECTOR OF C. EXCISE, NAGPUR [1995 (12) TMI 72 - SUPREME COURT]. It is observed that the Commissioner (Appeals) has considered the decision of this Tribunal as well as of Hon’ble Madras High Court which are based on the aforesaid decision of Hon’ble Supreme Court.
There is no infirmity in the order under challenge, the same is accordingly upheld - Appeal of Revenue is dismissed.
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2024 (4) TMI 673
Recovery of short paid service tax alongwith interest and penalty - Valuation of Security Agency Service - inclusion of various charges like, accommodation, vehicle running and maintenance, Telephone, Stationary and other expenses, in the gross value for calculation of service tax liability - HELD THAT:- The principal Bench of the Tribunal recently in the case of SR. COMMANDANT CENTRAL INDUSTRIAL SECURITY FORCE (BHEL UNIT) BHARAT HEAVY ELECTRICALS LTD. VERSUS COMMISSIONER OF CUSTOMS, & CENTRAL EXCISE [2023 (4) TMI 608 - CESTAT NEW DELHI] while relying upon the another decision of the Tribunal in the case of M/S BHARAT COKING COAL LTD. VERSUS COMMR. OF CENTRAL EXCISE & S. TAX, DHANBAD [2021 (9) TMI 23 - CESTAT KOLKATA] held that Allahabad Bench of the Tribunal in the case of CENTRAL INDUSTRIAL SECURITY FORCE VERSUS COMMISSIONER OF CUSTOMS, C.E. & S.T., ALLAHABAD [2019 (1) TMI 1661 - CESTAT ALLAHABAD], has already settled the issue in favour of the appellant to hold that expenses incurred towards medical Services, vehicles, expenditure on Dog Squad, stationery expenses, telephone charges, expenditure incurred by the service recipient for accommodation provided to CISF etc are not includible.
There are no reason to differ from those findings. Findings otherwise stands acknowledged by the Department itself. Resultantly, the order under challenge has been wrongly confirmed the impugned demand in total ignorance of the above said decisions - the impugned order set aside - appeal allowed.
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2024 (4) TMI 628
Valuation of service - works contract service - inclusion of cost of material (for which separate bill raised) in providing the service - inclusion on the ground that the service is classifiable under ‘works contract service’ and accordingly all the goods used for providing such ‘works contract service’ should be included in the gross value of the service under the composition scheme - HELD THAT:- As per the facts of the present case there are clear contracts between the appellant and the service recipient separately for sale of goods and for Erections, Commissioning and Installation services. Since there is a clear contract for supply of material and supply of services and in respect of the goods sale bills were issued by the appellant and VAT on the sale of goods were paid the transection of supply of goods is clearly and independently a transection of sale of goods which has no connection with the provision of service.
In the present case the contract of the service namely erection, commissioning, installation service being a pure service the same is not exigible to Sales Tax, VAT/CST etc. as per the law therefore the condition Number 2 above is also not applicable therefore in the present case being a service simpliciter as per the separate contract the same is not classifiable under works contract service. The appellant have admittedly paid the service tax on the erection, commissioning, and installation at the applicable rate of service tax therefore the allegation of the department that the appellant have not included the value of goods in the works contact service is incorrect.
This issue has been considered by the Hon'ble Supreme Court, in BSNL v. Union of India [2006 (3) TMI 1 - SUPREME COURT], wherein it has held that works contracts involved a kind of service and sale at the same time. In such a case, the splitting of the service and supply was constitutionally permitted. Further, it has been held that if there is an instrument of contract which may be composite in form in any case and if the transaction in truth represents two distinct and separate contracts and is discernible as such, in that case it has become permissible to separate agreement to sale from the agreement to render service.
The Hon’ble Supreme Court in the case of Imagic Creative Pvt. Ltd. v. Commissioner of Commercial Taxes [2008 (1) TMI 2 - SUPREME COURT] has categorically held that payments of VAT and service tax are mutually exclusive. Further, it was observed that even in case of indivisible contracts, it would be difficult to hold that the entire contract value be subjected to service tax or VAT.
Similarly in the case of Commissioner of Service Tax-V, Mumbai v. UFO Moviez India Ltd. [2022 (7) TMI 1064 - SUPREME COURT], the Hon'ble Supreme Court has held that where a person has regularly paid sales tax on a particular transaction, there is no question of levying service tax on the same transaction.
In the present case undisputedly the appellant had manufactured and also purchased the goods from the independent supplier and sold to its customers therefore irrespective of whether the said goods were sold in transit or by way of high seas sale, when the provisions itself prescribes non-taxability of trading of goods, no service tax can be levied on the profit margin arising from such trading of goods.
Thus, no service tax can be demanded on the sale of goods or by way of including the value of goods in the service. Further as per the contract and the transaction made thereunder there is clear distinction between the provision of service and transaction of sale of goods therefore the service has been correctly classified under erection commissioning and installation service and paid the service tax correctly.
The impugned orders are set aside - appeal allowed.
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2024 (4) TMI 627
Classification of service - Business Support services or not - service of delivery provided to some customers - Arranging transportation - The revenue contended that GTPL collected excess freight charges from customers compared to the amount paid to transporters, suggesting it as additional consideration for the goods sold - HELD THAT:- An identical issue has been decided in the case of PUSHPAK STEEL INDUSTRIES PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX PUNE - III [2018 (10) TMI 84 - CESTAT MUMBAI] wherein it was held that Since transportation cost, incurred was in context with delivery of goods at the buyers premises, it cannot be said that such facility extended by the appellant should be considered as a taxable service, leviable to Service Tax under the category of 'business support service'. Further, the appellant, in the present case, had not supported the business of the buyers in any manner and arrangement of transportation was just to facilitate delivery of the duty paid excisable goods at the buyer's premises. Thus, the activities undertaken by the appellant, in our considered view, do not confirm to the definition of taxable service, for the purpose of levy of Service Tax thereon.
It is noticed that no specific case of the service being provided under the head of business support service has been made out. As observed in Order In Original there is no contract for provision of the business support service between GTPL and their buyers. Even the notice does not show that GTPL were engaged in other than simply organizing transportation of goods.
Relying on the decision of Tribunal in the case of Pushpak Steel Industry Private Limited, there are no merit in the appeal filed by revenue.
Appeal allowed.
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2024 (4) TMI 561
SVLDRS - Benefit of the Amnesty Scheme opted - non-payment of service tax in respect of services rendered under the head of commercial training and coaching services - failure to make payment on account of technical glitch or not - HELD THAT:- Taking note of the report issued by the Assistant Director attached to the office of the Principal Additional Director General of Systems and Data Management GST and Central Excise, GST Bhavan, Chennai, the contention of the appellant regarding technical glitches of the system cannot be accepted - this is a case where the appellant who had applied for the benefit of the Amnesty Scheme was well aware of the strict time schedule that had to be adhered to for making payments under the Scheme. It clearly comes out through the affidavit of the appellant himself that he came to know of the SVLDRS-3 intimation only on 15.06.2020, which was well after the last date of 31.03.2020 for making payments as originally envisaged under the Scheme.
While the appellant apparently accessed the web portal of the SVLDRS on 29.06.2020, he does not appear to have attempted to make the payment envisaged since such details have not been captured by the system.
The terms of the Amnesty Scheme being of the nature of an exemption from the requirement to pay the actual tax due to the government, have to be considered strictly in favour of the revenue and against the assessee, and hence the appellant cannot be permitted to avail the benefit of the Scheme on the facts of the instant case - Appeal dismissed.
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2024 (4) TMI 560
Refund of service tax paid - time limitation - Business Auxiliary Service or not - rejection of refund claim on the ground that the petitioner had filed the said application after one year, the statutory period prescribed under Section 11B of the Central Excise Act, 1944 - principles of unjust enrichment.
Unjust Enrichment - HELD THAT:- The Revenue took up this matter before the CESTAT against the order passed in Ext. P2 by the Commissioner (Appeals). The Tribunal vide the order dated 19.01.2018 in Ext. P3, remanded the matter back to the original authority to examine the record of the petitioner afresh and pass a fresh order. On remand, the 2nd respondent/original authority had considered the issue afresh and issued order dated 25.03.2021 in Ext. P5. The 2nd respondent had found that the payment of Rs. 15,66,169/- was made under protest. However, the petitioner did not produce any convincing document to prove that the tax paid by him of Rs. 15,66,169/- had not been passed on to the consumer of services ie., the respective distilleries and therefore, the petitioner had been held not to be entitled for claiming refund in absence of the evidence to prove that the petitioner had not passed on the tax liability on the distilleries, and he had paid an amount of Rs. 15,6,169/- from the own pocket.
Time Limitation - 2nd respondent found that out of the said amount, Rs. 2,78,100/- was paid by the petitioner on 04.01.2007 and the application was made after one year, which would be barred under Section 11B of the Central Excise Act, 1944 - HELD THAT:- The question is of evidence and not on of the law. Whether the petitioner had passed on the tax liability on the distilleries, the consumers of the services of the petitioner is a matter of fact and evidence, and this Court cannot go into this question in exercise of its jurisdiction under Article 227 of the Constitution of India. In respect of the amount of Rs. 2,78,100/-, the original authority had categorically held that the application had been filed after one year of prescribed limitation period, and in respect of the other amount, he had failed to prove that the said tax liability had not been passed on to the consumers of the petitioner service. Therefore, this Court cannot examine the issue, which is only a question of fact and evidence and not of the law.
This Court find no substance in this writ petition. Thus, the writ petition is hereby dismissed.
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2024 (4) TMI 559
Reversal of CENVAT Credit - exempted service rendered as trading activity - whether the option exercised by the appellant by intimating to the Department under Rule 6(3A) dated 24.05.2011 and 02.05.2012 is legal and valid? - HELD THAT:- It is found that in the various cases, the issue for consideration was whether the demand can be sustained even when the appellant has not complied with the requirement of intimating the Department about availing the option under Rule 6(3A) of the CCR, 2004. In all the decisions, the appellant has reversed the credit attributable to the exempted services and it has been held by the Tribunal consistently that the said requirement is only a procedural requirement and the demand cannot be confirmed for such procedural lapse.
Further, in the present case, the appellant is on a better footing because he has exercised the option by submitting intimation letters under Rule 6(3A) dated 24.05.2011 and 02.05.2012, but the Department has not considered the option exercised by the appellant simply on the ground that the option cannot be operative retrospectively from 01.04.2011 and 01.04.2012 respectively.
The impugned order is not sustainable - Appeal allowed.
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2024 (4) TMI 558
Refund of service tax paid - Construction of Residential Complexes Service - rejection on the grounds of non-submission of the required documents despite seeking time for submission of the same - HELD THAT:- Commissioner (Appeals) in the impugned order has upheld the order of the original authority on the ground that no documentary proof to satisfy that their service/activity falls within the purview of Board Circular 96/2007-ST dated 23.08.2007 was submitted. The contention of the appellant that their service would fall under ‘Works Contract’ was also not considered by Commissioner (Appeals) as they have not taken any registration under ‘Works Contract’ and discharged appropriate service tax.
In this case the appellant contends that they are not in the activity of ‘Construction of Residential Complexes’ to attract levy of service tax. They have contended that they are purchasing land, building flats and selling them to the customers. They are in the business of buying and selling of flats and hence they are not liable for service tax.Nonetheless they have registered and paid service tax, realizing that they ought not to have paid service tax they have filed a refund claim for the service tax paid. However, since the required documents as proof of payment of service tax as well as non-collection of same from the buyers was not produced by way of documents, their refund claim was rejected by the original authority as well as by the first appellate authority.
The required documents are not brought on record even in the appeal before this Tribunal and the appellant has not appeared for hearing on the last three occasions - the appeal filed by the appellant is dismissed.
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2024 (4) TMI 534
Seeking permission to withdraw these Civil Appeals with liberty to seek remedies in accordance with law - Levy of service tax - Business Auxiliary service or not - commission paid by the appellants to the commission agents - reverse charge mechanism - Revenue neutrality - HELD THAT:- The Civil Appeals are dismissed as withdrawn.
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2024 (4) TMI 533
Recovery of service tax with interest and penalties - Reverse Charge Mechanism (RCM) - Commissions paid to a foreign service provider - non-discloser of detailed in the Shipping Bill - benefit of exemption under notification no. 18/2009-ST - suppression of facts or not - Extended period of limitation - HELD THAT:- The appellant had filed the requisite details in the manner prescribed by the Notification with the jurisdictional authorities. Just for the reason that the same was not produced before the auditors at the time of audit cannot be ground for stating that these Forms were not filed. This fact could have been verified with jurisdictional officers. When all the details including the details of the shipping bill export invoices etc., were filed by the appellants in the manner as prescribed, revenue should have before issuance of the show cause notice demanding the duty, should have verified and replied to the audit.
Admittedly the fact about commission paid by the appellant to the foreign service provider was not indicated by the appellant in the Shipping Bill as required under the said notification. However all the details as required under the notifications were made available by way of Form-EXP2 filed by the appellant.
Extended period of limitation - Suppression of facts or not - appellant had not produced the copy of agreement with the foreign service provider and the relevant documents to audit at the time of audit - HELD THAT:- Though these documents were in existence and were made available to revenue authorities even before the issuance of show cause notice. As all the information which was necessary to determine eligibility under Notification No.18/2009-ST was available with the Revenue and the prescribed Return/Form was filed by the appellant they could not have suppressed any fact from the Department for which extended period of limitation could have been invoked. Where merely a procedural violation in respect of complying with a condition of Notification cannot be said to be an act of suppression for invoking extended period of limitation. No justification for invoking extended period of limitation is forthcoming from the show cause notice, order in original or the impugned order.
As the demand not sustainable on the ground of limitation, the issue on merits not discussed.
Appeal allowed.
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2024 (4) TMI 532
Scope of SCN - SCN does not mention the category of service under which the demand is raised - Violation of principles of natural justice - HELD THAT:- On perusal of the SCN as well as the order-in-original, it is noted that the category of service has not been mentioned at all. It is merely stated that from the statements recorded from persons of M/s Neyveli Lignite Corporation, various services in the nature of “Management, Maintenance or Repair Services, Manpower supply Agency Services and Commercial or Industrial Construction Services” have been provided by the appellant. On perusal of the annexure to the show cause notice, it is seen that there is nothing mentioned as to the category of service. The annexure merely states the description of work done in the invoices. The adjudicating authority, while confirming the demand, has not made any discussion as to what is the amount that would fall under each category of service or whether the entire amount falls within one category of service.
The Hon’ble Supreme Court in the case of Commissioner of Central Excise, Vs. M/S Brindavan Beverages (P) Ltd. [2007 (6) TMI 4 - SUPREME COURT] has observed that the show cause notice, being the foundation of litigation, has to contain the necessary details so as inform the assessee to defend the allegations. In the case of CCE & ST Pondicherry Vs. A.M. Manickam [2017 (6) TMI 57 - CESTAT CHENNAI], the Tribunal had occasion to consider the demand of service tax on show cause notices issued to various persons who had provided services to M/s Neyveli Lignite Corporation. The Tribunal observed that these show cause notices did not contain any mention of the category of service and therefore the demand was set aside.
Since the department has not mentioned the category of service in the show cause notice as well as the order-in-original much prejudice has been caused to the appellant. The proceedings are therefore vitiated and the demand cannot sustain.
The impugned order is set aside - Appeal allowed.
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2024 (4) TMI 494
SVLDRS - Quantification of liability - Prayer for issuance of Discharge Certificate after allowing the petitioner opportunity to pay up the requisite amount under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - short payment of service tax - HELD THAT:- It is no longer res integra that a Circular issued by CBIC, here under Section 133 (1) of the Scheme would bind the Revenue Authorities insofar as it is beneficial to the assessee/declarant. In UCO BANK, TAMIL NADU INDUSTRIAL INVESTMENT CORPORATION LTD. VERSUS COMMISSIONER OF INCOME-TAX [1999 (5) TMI 3 - SUPREME COURT], an issue arose as to the binding effect of circulars issued by CBIT under the Income Tax Act, 1961. It was held in the case that The officers, therefore, were asked to intimate to all the companies that if the loans were repaid before 30th of June, 1955 in a genuine manner, they would not be taken into account in determining the tax liability of the shareholders to whom they may have been advanced despite the new section. This circular was held by this Court as binding on the Revenue, though limiting the operation of Section 12(1B) or excluding certain transactions from the ambit of Section 12(1B). It was so held because the circular was considered as issued for the purpose of proper administration of the provisions of Section 12(1B) and the court did not look upon this circular as being in conflict with Section 12(1B).
Once, the audit party had recorded the admission of the petitioner with respect to the quantum of duty admitted to be payable by it, that admission recorded in writing may have amounted to a written communication. However, no independent adjudication is required to be made on the point, in view of clarification made by the CBIC. Plainly, the CBIC itself has remedied the situation to include admissions recorded during the course of audit within the meaning of "quantified", as defined under Section 121 (r) of the Scheme.
Seen in that light, the declaration made by the petitioner was with respect to amount quantified prior to 30.06.2019. Therefore, the petitioner's declaration was maintainable. It ought to have been dealt with on its own merits. It may not have been rejected for reason of show cause notice issued after the cut-off date, i.e. 15.7.2019.
The order dated 31.12.2019 passed by the Designated Committee is set aside. The matter is remitted to the Designated Committee to pass an appropriate order treating the petitioner's declaration to be in accordance with law with respect to amount quantified before the cut-off date i.e. 30.06.2019 - petition allowed by way of remand.
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2024 (4) TMI 475
Classification of service - Works Contract service - erection, commissioning or installation service - exemption from service tax under N/N. 25/2012 (S.No. 12), dated 20.6.2012 - period October 2010 to March 2015 - HELD THAT:- Appellant are required to erect poles and for this purpose, dig pits, prepare concrete base as per specifications and install the poles. The appellant was not required to supply the poles but it was required to provide the materials towards construction of the base. It also required the appellant to ensure that the quality of the materials used were as specified. Thus, there was use of materials in these contracts though not supply of poles themselves.
In this case, since the appellant was required to use cement and concrete as per the contracts, they squarely fall under the definition of works contracts under section 65B (54) of the Finance Act. Therefore, the SCN, the OIO and the impugned order were incorrect in assuming that they were not works contracts. The demand, interest and penalties in the impugned order therefore, cannot be sustained.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 474
Recovery of Service Tax - Business auxiliary services - sale and purchase of cargo space - demand of service tax on the difference between the amounts shown in the TDS certificates issued by the airlines to the appellant and the amounts on which the appellant had paid service tax - HELD THAT:- If the cargo space is sold by the airlines to the appellant, and by the appellant to the exporter, there is no privity of contract between the airlines and the exporter. The appellant gets the cargo space on that flight and pays the airlines for it. There is another contract between the appellant and the exporter whereby the appellant sells a part of the cargo space which it had bought to the exporter and the exporter pays the appellant. In such an arrangement, the appellant is not acting as an agent of the airlines but as an independent business acting on its own account. Since the appellant buys the cargo space in bulk, the airlines offers a better price and the appellant sells the cargo space at a higher price to the exporter and earns a profit. Neither is the appellant a service provider nor is the airlines a service recipient in such an arrangement and no service tax can be levied.
This issue is no longer res integra and it was decided so in COMMISSIONER OF SERVICE TAX, MUMBAI VERSUS GREENWICH MERIDIAN LOGISTICS (I) PVT LTD [2013 (8) TMI 453 - CESTAT MUMBAI], M/S. TIGER LOGISTICS (INDIA) LTD. VERSUS COMMISSIONER OF SERVICE TAX-II, DELHI [2022 (2) TMI 455 - CESTAT NEW DELHI] and M/S BHATIA SHIPPING PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX-I, MUMBAI [2022 (1) TMI 1175 - CESTAT MUMBAI].
In these appeals, it is not in doubt that the appellant was buying and selling cargo space on airlines and it has been specifically recorded so in the impugned order dated 1.3.2016. The Commissioner, however, confirmed the demand under the erroneous impression that unless the buyer becomes a permanent owner of the cargo space, this arrangement amounts to rendering a taxable service and accordingly confirmed the demand. The demands for the subsequent periods were confirmed on the same grounds.
The impugned orders cannot be sustained and need to be set aside - appeal allowed.
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2024 (4) TMI 473
100% EOU - Refund of the unutilized cenvat credit - Rule 5 of the Cenvat Credit Rules, 2004 - denial of refund on the ground that the appellant has not established the nexus of input services with the output services provided by them - rejection of refund also on the ground that there was mismatch of the figures of the refund claims and the cenvat credit as disclosed in the relevant ST-3 returns - rejection of some amount of refund on the ground that the premises is unregistered - interest on delayed refund - CENVAT Credit - nexus with output service.
Denial of refund on the ground that the appellant has not established the nexus of input services with the output services provided by them - HELD THAT:- The definition of ‘input service’ prior to 1.4.2011 had wide ambit as it included the words “activities relating to business”. Further, in case of output services provider as per first limb of definition of ‘input services as given in Rule 2(l ) of CCR 2004, it is merely sufficient to establish that input services were used for providing output services. The first limb of the definition does not use the words ‘directly’ and merely says ‘inputs used for providing output services’. The finding of the Commissioner (Appeals) that the appellant has not established that input services were directly used for providing output service is adding words into the definition of “input service” and therefore not acceptable. The appellant therefore is eligible for the refund of credit of input service prior to 1.4.2011. The finding of the adjudicating authority that the refund is not eligible for the reason that the input service did not have nexus with the output service is set aside.
Denial of refund on the ground of difference in the amount of the cenvat credit disclosed in the ST-3 returns and the refund of credit filed by the appellant for the relevant period - HELD THAT:- On perusal of records, it is not forthcoming as to which of the services this difference in amount is spread over. For this reason, it is opined that the matter requires to be remanded. In case the appellant is able to furnish that they have availed these input services of higher amount, the original authority is directed to consider as per law and as per findings rendered in this order.
Rejection of some amount of refund on the ground that the premises is unregistered - HELD THAT:- The Hon’ble Karnataka High Court in the case of MPORTAL INDIA WIRELESS SOLUTIONS (P.) LTD. VERSUS COMMISSIONER OF SERVICE TAX [2011 (9) TMI 450 - KARNATAKA HIGH COURT] has held that credit cannot be denied for the reason that the premises is not registered. Following the same, we are of the view that rejection of refund claim on this grounds is not justified - there is difference in amounts as reflected in the ST-3 returns as well as refund claim as discussed above, the entire matter requires to be remanded to the adjudicating authority to reconsider afresh, the claims which have been rejected.
Interest on delayed refund - HELD THAT:- There is difference in the amount of the refund claim and the amount of credit disclosed in the ST-3 returns. All these require much correlation and consideration by the adjudicating authority. For these reasons, we do not find any ground to grant interest as there is not much delay in sanctioning refund. The issue of interest on delayed refund is held against the appellant and in favour of the Department.
The matter is remanded to the adjudicating authority for reconsideration in above terms within a period of three months from the date of receiving this order. The impugned orders are set aside. The appeals are allowed by way of remand to the adjudicating authority.
CENVAT Credit - input service - having nexus with output service or not - Renting of Immovable Property Services (Parking Service) - Air Travel Agency Service - Photography Service - Management Consultancy Service - Commercial or Coaching Service - Event Management Service - Supply of Tangible Goods service - out of pocket expenses - Security agency services - Pandhal & Shamina Services - HELD THAT:- The services described in the table furnished by appellant do not fall under the exclusion clause of definition of input services (post-1.4.2011). The department therefore cannot reject the refund alleging that the services do not have nexus with output services - For this period post-1.4.2011 also, there is difference in the amount of refund claim as well as the amount of credit disclosed in the ST-3 returns. For these reasons, these appeals also require to be remanded to the adjudicating authority for reconsidering the issue of refund. In such consideration of the matter, the original authority is directed to verify the invoices as well as the services of the air travel agency service, photography services, as to whether these are used for personal consumption. If they are used for the activity of the company the appellant would be eligible for credit - appeals also stand allowed by way of remand to the adjudicating authority.
Appeals allowed by way of remand.
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