|
Advanced Search Options
Case Laws
Showing 121 to 140 of 14653 Records
-
2013 (12) TMI 1628 - CESTAT BANGALORE
100% EOU - CENVAT credit - input services - renting of immovable property service - credit has been denied only on the ground that services were not received in the manufacturing premises and the premises where it has been received was not registered under Service Tax statute - Held that:- There is no such requirement as far as the input services are concerned that the same should have been received in the manufacturing premises and the premises where received should be registered one - appellant has made out a very strong case for eligibility of the credit.
The matter does not require any further consideration since the basis on which credit was denied is not at all sustainable - appeal allowed - decided in favor of appellant.
-
2013 (12) TMI 1627 - CESTAT MUMBAI
... ...
... ... ..... t has complied with all such condition, therefore they are entitled for refund claim. 4. On the other hand, ld. AR reiterates the impugned order. 5. Considered the submission made by both sides. Admittedly, in this case Service Tax has been paid, service has been utilised. It is not the case that these services do not qualify under Notification 41/2007. Only reason for denial is that there is no correlation of service provided to them to the export goods. The Board Circular dated 19-1-2010 has clarified wherein they have made clear that it is to be seen whether Service Tax has been paid or not, whether service has been used or not, whether service falls within the Notification or not. These facts are not in dispute. Therefore impugned order is not sustainable. Accordingly, same is set aside. Appeals are allowed with consequential relief. The Adjudicating Authority is directed to comply with this order within 30 days of the receipt of this order. (Dictated in Court)
-
2013 (12) TMI 1626 - CESTAT BANGALORE
... ...
... ... ..... notification. In any case, he submits that the Commissioner(Appeals) should have decided the issue instead of remanding the matter as per the decision of the Hon’ble Supreme Court in the case of MIL India Ltd. Vs. CCE 2007(210) ELT 188 (SC) . Since the issue involved is interpretation of law, the Commissioner(Appeals) should have decided the issue on merits and not remanded the case. Accordingly, the appeal is allowed and the Commissioner(Appeals) is directed to decide the issue on merits and not resort to remanding the matter to the original adjudicating authority. (Order dictated and pronounced in open court)
-
2013 (12) TMI 1625 - CESTAT BANGALORE
... ...
... ... ..... ll the documents and they will be able to produce the same given an opportunity. 9. Having regard to the prima facie view about the liability, amount involved in such cases, interest liability thereon from the date on which liability arose till now and the amount of Cenvat credit held as inadmissible and having regard to the fact that in certain cases, the issue is debatable and therefore final decision can be taken only at the time of final hearing, we consider that if the appellants deposit an amount of ₹ 2,60,00,000/- (Rupees two crores sixty lakhs only) within six weeks from the date of receipt of the order and report compliance on 19-5-2014 such deposit would be sufficient for the purpose of hearing the appeal. Accordingly subject to pre-deposit of the above amount, there shall be waiver of pre-deposit of balance dues and stay against recovery during the pendency of appeal. (Operative portion of the order pronounced in open Court on conclusion of the hearing)
-
2013 (12) TMI 1624 - CESTAT MUMBAI
... ...
... ... ..... respect of the goods under exportation. The requirement to be satisfied by the exporter is that the receipt issued by the courier agency specifies the IEC Code of the exporter, export invoice number, nature of courier, destination of courier including the name and address of the recipient of the courier and the exporter produces the evidence to link the use of courier for export purposes. In the present case, it is an admitted position that this condition has not been satisfied by the appellant. Therefore, the rejection of refund claim on this ground is sustainable in law. 6. In view of the above, I hold that the appellant is eligible only for refund of an amount of ₹ 16,458.33 in respect of technical testing and analysis service and the appellant is not eligible for the refund of ₹ 1,64,364.14 on account of their claim for drawback and ₹ 36,802.14 in respect of courier service. Thus, the appeal is partly allowed in the above terms. (Dictated in Court)
-
2013 (12) TMI 1623 - CESTAT NEW DELHI
... ...
... ... ..... is a company located in Korea and have no branch or any establishment in India. In respect of a taxable service provided by an offshore service provider not having any branch office or establishment in India to a person in India, Service Tax could be charged from the service recipient in India w.e.f. 18-4-2006. But neither during the period prior to 18-4-2006 or during period w.e.f. 18-4-2006, there was any provision to charge Service Tax from an offshore service provider in respect of taxable service provided by him to a person in India. Therefore, irrespective of whether the service provided by the appellant to M/s. Samcor Glass Ltd. was taxable or not, no Service Tax can be charged from them in view of the judgments of the Tribunal in the cases of Philcorp Pte. Ltd. (supra) and Mitsui & Co. Ltd. (supra). The impugned order, therefore, is not sustainable. The same is set aside. The appeal is allowed. (Operative portion of the order already pronounced in the open Court)
-
2013 (12) TMI 1622 - CESTAT MUMBAI
Rejection of Refund claimed by service recipient - ground alleged for rejection of refund claim is that refund can be claimed only by the person, who has paid the service tax and the appellant who is the service recipient is not eligible for claiming of refund - GTA Service - Held that:- This ground is patently absurd and irrational - Notification No. 41/2007 which provides exemption through a refund mechanism clearly and unequivocally states that it is the exporter who can refund claim and not the service provider except in a situation where the exporter and the person discharging the tax liability is one and the same - rejection of refund claim is unsustainable in law.
Refund claim - service tax on transportation charges incurred from the port/container yard to the factory in respect of empty containers - denial on account of nexus - Held that:- The issue is settled in favor of the appellant in the case of Vippy Industries Ltd. v. CCE, Indore [2014 (8) TMI 377 - CESTAT NEW DELHI], where it was held that the appellant would be eligible for refund of service tax on transportation charges incurred from the port/container yard to the factory in respect of empty containers as the said transportation was in connection with the exports undertaken and therefore, there is a nexus between the transportation of empty containers with the export of the goods - refund allowed.
Appeal allowed - decided in favor of appellant.
-
2013 (12) TMI 1621 - CESTAT BANGALORE
... ...
... ... ..... t is a waste of time going into all the aspects and commenting on the order. In my opinion, the claim made by the assessee that they have maintained separate accounts and Chartered Accountant’s certificate submitted by them have to be accepted in the absence of any contrary evidences produced by the Revenue. Once separate accounts have been maintained, there was no obligation on the assessee to pay the amount and interest as demanded. In any case since the appellant is not contesting the service tax demand and interest thereon, the same is upheld as not contested. As regards penalty, in the facts and circumstance of the case, there is no case whatsoever for imposition of penalty. 6. Even though the matter was listed only for hearing the stay application, the circumstances discussed above compelled me to decide the appeal itself and accordingly, the appeal is allowed with consequential relief, if any, to the appellants. (Order dictated and pronounced in open court)
-
2013 (12) TMI 1620 - CESTAT BANGALORE
... ...
... ... ..... of third parties including Gangavaram Port Ltd. and BPCL; the proceedings have also not adverted to any lease agreements to support a conclusion that the petitioner had any transferable interest in immovable property including vacant land, which were leased to third parties. 7. In the above circumstances, to conclude as it did, that the petitioner had provided renting of immovable property service, an independent taxable service earlier to 1-7-2010, and a service falling within the ambit of port service after 1-7-2010, is a conclusion that prima facie appears to be an ipsi dixit without any critical examination of relevant facts. 8. For the aforesaid reasons, we are of the considered view that the petitioner has made out a strong prima facie case for grant of relief. We accordingly grant waiver of pre-deposit and stay of proceedings for recovery of the assessed liability. The stay application is accordingly disposed of. (Order dictated and pronounced in open Court)
-
2013 (12) TMI 1619 - CESTAT MUMBAI
... ...
... ... ..... ctivity undertaken by the appellant is laying of paver blocks. Whether it is rendered to M/s. Thakur Infra-projects Pvt. Ltd. or M/s. Man Projects Ltd. or to the Port authorities, the activity remains the same and, therefore, the service also would remain the same. There cannot be any change in the nature of service depending upon who received the service. Laying of paver blocks, by no stretch of imagination, can be considered as ‘Business Auxiliary Service’ and would form part of construction activity. Since the construction activity undertaken in the port area is excluded from the scope of ‘Commercial Construction Service’, we are prima facie, of the view that the appellant is not liable to discharge service tax liability on the laying of paver blocks in the port area. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal. (Dictated in Court)
-
2013 (12) TMI 1618 - CESTAT BANGALORE
... ...
... ... ..... invoice was not in the name of the appellant would make them ineligible for the credit. According to Rule 9 of Cenvat Credit Rules, address of the recipient is not one of the essential requirements for allowing credit. Even in the absence of the name of the recipient of the goods credit can be allowed provided the assessee is able to satisfy the officer that goods have been received/used for providing service or manufacture and duty has been paid. In this case admittedly appellants have been able to show that the strips were received by jobworker, were utilized in providing service and excise duty due on the straps has been paid. Under these circumstances, the benefit of Rule 9 has to be given to the appellants treating the same as procedural omission. In view of the above I find that the credit was admissible to the appellant and denial was wrong. Accordingly appeal is allowed with consequential relief if any to the appellants. (Order dictated and pronounced in open court)
-
2013 (12) TMI 1617 - CESTAT MUMBAI
... ...
... ... ..... s the goods to other dealers/retailers. Thus, the transaction is one of sale of goods and not of rendering any service. Therefore, we find that the appellant has made out a prima facie case in support of their contention that the activity undertaken by them does not attract service tax. In these circumstances, the order of the lower appellate authority directing the appellant to make a pre-deposit of entire service tax along with interest is not sustainable in law. Accordingly, we set aside the same. 4. Inasmuch as the appeal has not been decided on merits by the lower appellate authority, the matter has to go back to the lower appellate authority for consideration of appeal on merits. Accordingly, we remand the matter back to lower appellate authority for consideration of the appeal on merits after giving a reasonable opportunity to the appellant of being heard. 5. Thus, the appeal is allowed by way of remand. Stay petition is also disposed of. (Dictated in Court)
-
2013 (12) TMI 1616 - CESTAT MUMBAI
... ...
... ... ..... ctivity was not taxable for the prior as held by the Hon’ble High Court of Bombay in the case of Indian National Shipowners Association v. UOI - 2009 (14) S.T.R. 289 (Bom.) and affirmed by the Hon ’ble Apex Court in 2011 (21) S.T.R. 3 (S.C.). Therefore, the argument of the Revenue that the said activity merits classification under the Consulting Engineer’s Service prior to 1-7-2003 is not sustainable in law. In fact the definition of Consulting Engineer Service was amended vide Finance Act, 2006 so as to include consulting engineering services rendered by body corporate also within the scope of the said services. The decision of this Tribunal in the case of Thermax Babcock & Wilcox Ltd. also applies squarely to the facts of the case. 6. In view of the above, we find that the impugned order is not sustainable in law. Accordingly, we set aside the same and allow the appeal with consequential relief, if any, in accordance with law. (Dictated in Court)
-
2013 (12) TMI 1615 - CESTAT BANGALORE
... ...
... ... ..... ue under Section 67 of the Act. For this reason, we grant waiver of pre-deposit in full and stay all further proceedings for realization of the adjudicated liabilities, pending disposal of the appeal. 5. It requires to be noticed that out of the tax demand of ₹ 9,68,44,164/-, ₹ 1,20,21,082/- relates to receipts by the petitioner from the service recipient SCCL towards bonus and miscellaneous payments for efficient use of consumables during the course of providing the taxable service. It is stated by the petitioner that this component of the total service was remitted even prior to the adjudication order. We record this fact to make it clear that the waiver of pre-deposit granted herein does not include the Service Tax component of ₹ 1,20,21,082/-. If this amount was not remitted by the petitioner, the same could be recovered by the due process of law. 6. The stay application is accordingly disposed of. (Order dictated and pronounced in open Court)
-
2013 (12) TMI 1614 - CESTAT KOLKATA
... ...
... ... ..... ;procurement of goods or services, which are inputs for the clients”, would be extended to re-sale of goods. In this connection, we find that this Tribunal in the case of A.P. Heavy Machinery & Engineering Ltd. (supra) is relevant, wherein, it had been observed that during the ‘in transit sales’, the element of profit earned, could not be considered as liable to Service Tax under the category, ‘Business Auxiliary Service’. Following the said observation, we are also of the opinion that prima facie, the ‘mark-up’ charges cannot be subjected to Service Tax levy, even if the same is considered as profit of the applicant. In the result, the applicant could be able to make out a prima facie case for total waiver of the dues adjudged against them. Accordingly, pre-deposit of the dues adjudged is waived and its recovery stayed during the pendency of the appeal. Stay petition allowed. (Operative part of the order pronounced in the Court)
-
2013 (12) TMI 1613 - CESTAT BANGALORE
... ...
... ... ..... ved the service also make the payment to the company in US and that transaction would become an import of service. It can be said that the service provided by the appellant to the US company becomes an input service to US company (Verint) and service received by the Indian company from US would become an output and thereby becomes import of service. Prima facie we feel this is the situation that emerges from the facts of the case. Therefore, we consider that the appellants have made out a case on merits for complete waiver and accordingly requirement of pre-deposit is waived and stay against recovery granted during the pendency of appeal. At this stage we take note of the fact that a miscellaneous application has been filed by the Revenue for early hearing of the appeal which is in reality premature since the stay application itself had not been heard till date. Accordingly, the miscellaneous application is rejected as premature. (Order dictated and pronounced in open Court)
-
2013 (12) TMI 1612 - CESTAT BANGALORE
... ...
... ... ..... mmissioner (Appeals) that the appellant did not produce evidence of utilization especially unit was not even required in the show cause notice issued to the appellant. I find myself in agreement with the submission of the counsel that the Commissioner (Appeals) has travelled beyond the show cause notice as far as this aspect is concerned. As regards the non-mentioning of the credit particulars in the bill, I find it is not an essential requirement and it could have been waived by the Deputy Commissioner on a specific submission by the appellant. In my opinion having regard to the amount involved and the nature of dispute, this is a fit case where this lapse of not claiming the benefit of Rule 9 can be ignored and it can be presumed that they have made a request now and it is allowed. Under these circumstances, I find no merit in the impugned order and accordingly allow the appeal with consequential relief if any to the appellant. (Order dictated and pronounced in open Court)
-
2013 (12) TMI 1611 - CESTAT BANGALORE
... ...
... ... ..... prima facie view of the scope of the taxable/works contract service enumerated and defined in Section 65(105)(zzzza) of the Act and in particular, the specification that construction of a new building or civil structure wherein transfer of property in goods is involved in the execution of a contract for providing this facet of the service, primarily for the purpose of commerce and industry; construction of cottages for TTD, is not a taxable service. Whether the incentive of accommodation provided by TTD for promotion or propagation of Hindu religion amounts to a business of promoting religion is a larger issue requiring to be examined in detail; but at the hearing of the appeal. For the nonce, we think not. 4. On the aforesaid analysis, we grant waiver of pre-deposit in full and stay all further proceedings for realization of the adjudicated liabilities, pending disposal of the appeal. Application is accordingly disposed of. (Order dictated and pronounced in open Court)
-
2013 (12) TMI 1610 - JHARKHAND HIGH COURT
... ...
... ... ..... earned CESTAT and the same is pending. 3. Learned counsel for the petitioner submits that even when the appeal is pending, the department has attached the bank account of the petitioner as a result of which petitioner in not in a position to operate his business and discharge the business obligation. In such circumstance, learned counsel for the petitioner prays that a direction may be issued to the learned CESTAT to hear the matter out of turn, since there are number of cases pending before the learned CESTAT. 4. We are not informed about the volume of matters pending before the learned CESTAT. However, having regard to the fact that the petitioner’s bank account has been attached and he is not in a position to carry out his business, we direct the learned CESTAT to consider the request of the petitioner. 5. The writ petition is disposed of with the aforesaid observation. However, petitioner is at liberty to approach this Court if aggrieved any further.
-
2013 (12) TMI 1609 - ITAT BANGALORE
... ...
... ... ..... (ITA No.390/Bang/2011 dt.8.6.2012) and Vijaya Bank (ITA No.455/Bang/2011 dt.22.4.2012). Following, the aforesaid decisions of the co-ordinate bench of the Tribunal (supra), we delete this addition of ₹ 73,58,708 made by the Assessing Officer under section 41(1) of the Act as being unsustainable. 9. In the Ground raised at S.No.4, the assessee denies itself liable to be charged interest under sections 234B & 234D of the Act. The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter. In this view of the matter, we uphold the Assessing Officer’s action in charging the said interest. The Assessing Officer is, however, directed to recompute the interest, if any, chargeable while giving effect to this order. 10. In the result, Revenue’s appeal for Assessment Year 2007-08 is dismissed and the assessee's appeal for the same year is partly allowed. Order pronounced in the open court on 31st Dec., 2013.
............
|
