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Service Tax - Case Laws
Showing 121 to 140 of 150 Records
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2012 (7) TMI 164
Penalty under Section 76 and 78 simultaneously - Non-payment of service tax liability under the category of Management, Maintenance and Repair Services - appellant before issuance of show cause notice has paid the entire amount of service tax liability, interest and 25% of the penalty imposed under Section 78 of the Finance Act, 1994, within 30 days of the issuance of the adjudication order – Held that:- Provisions of Section 78 was amended from 10.05.2008, wherein an amendment is brought in indicating that, where penalties payable under Section 78, no penalty under the provisions of Section 76 shall be attracted - show cause notice is issued to the appellant on 18.6.2008 and whereas the amendment to Section 78 was carried out on 10.05.2008 – Penalty u/s 76 not sustainable – In favor of assessee
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2012 (7) TMI 163
Waiver of pre-deposit - Demand of Service Tax - Service Tax was not paid in respect of rent-a-cab services provided by the appellant – Held that:- appellant has not been able to show that the vehicles were of more than 12 passenger capacity and they had failed to indicate the Registration No. of the vehicle in the bill. On enquiry from the Bench, the ld.Chartered Accouantant produced 2 invoices and both the invoices were found not containing a word 'Kilometer' at all anywhere in the invoices. Application for waiver dismissed.
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2012 (7) TMI 162
Re-credit of Cenvat credit – service tax paid by utilising the Cenvat credit accumulated - with effect from 1.3.08, the appellant was not entitled to utilise the Cenvat credit for payment of Service Tax on GTA service and such liability was required to be discharge through cash – Held that:- appellants have deposited the amount in cash, which was already paid by them through Cenvat credit. With such deposit in cash, they become entitled for reversal of the credit so utilised by them for payment of the same tax amount. As such, the appellants are allowed to re-credit the amount in their Cenvat credit account.
Regarding penalty – Held that:- there was utter confusion in the field during the relevant period and as such imposition of penalty is not justified, the same is accordingly set aside.
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2012 (7) TMI 140
Refund claim - appellant, a 100% EOU - refund claim of service tax paid by them, as per the provisions of Notification No. 41/2007-ST - held that:- . As the transporters are not making payment of service tax on GTA service, there can be no objection for not mentioning the service tax registration No. on the LRs.
The purchase order Nos. are given in invoices and LRs and invoices Nos. are given on shipping bills. Thus, it can be easily correlated that the transportation of export goods was done and hence refund claim has been correctly sanctioned.
There is no provision in the Central Excise Act to file appeal on the ground that Range Superintendent proposed for rejection of less amount but the Assistant Commissioner has rejected higher amount.
Claim was scrutinized by Range Superintendent, then show cause notice was issued, defence reply was submitted and the claim was sanctioned after considering all the facts. This plea in the departmental appeal is totally frivolous because nothing has been stated that why claim can not be sanctioned.
In place of filing an appeal on such a ground, the Review Cell should have randomly verified the payments of service tax and ascertained that in respect of some invoices, the respondent obtained refund but did not pay the same. In absence of such an allegation, the appellate authority cannot reject already sanctioned claim on the ground that random check of actual payment of service tax was not done.
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2012 (7) TMI 138
Waiver of pre-deposit - Supply of relevant documents to the assessee - Appellant’s claim before the adjudicating authority as well as the first appellate authority that they have not signed the power of attorney in the name of Shri Chudasma who had been interacting with the recipient of service and the service recipients were making payment for the services rendered, to such a person – Held that:- Documents may be needed by the assessee-appellant for defending his case of non-liability of Service Tax, as their claim is that some one has impersonated them. Non-supply of these documents and an order passed is in violation of principles of natural justice and both the lower authorities have passed the orders in violation of principles of natural justice and are liable to be set aside - appeal is allowed by way of remand
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2012 (7) TMI 137
Stay Petition - waiver of pre-deposit - service rendered by the appellant is towards the construction of the roads which was sought to be brought under the category of management, maintenance or repair of the roads for the period 16.06.2005 to 27.07.2009 – Held that:- Issue is covered by Section 97 of Finance Act, 2012 - Finance Act has clearly stated that no Service Tax can be levied on the services which are under the category of Management, Maintenance or Repair of the roads for the period – In favor of assessee
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2012 (7) TMI 136
Refund - inputs as well as input services utilised/ used in the manufacture of goods, which are exported under Notification No. 41/2007-ST – refund granted - revisionary authority not given any reasoning for refund – Held that:- Revisionary authority has not given any reasons to uphold the order of the adjudicating authority, hence, is, as such a non-speaking order - order set aside and matter remanded back to the revisionary authority
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2012 (7) TMI 135
Extended period - authorised service station for Maruti - appellants had received incentive for vehicle loans given to the customers who purchased Maruti vehicles – Appellants paid service tax even though it was their claim that Maruti Udyog Limited has paid the service tax on the full amount of incentive/ commission - Held that:- Service tax cannot be collected twice on the same service and this is the basic principle of law and therefore, once a claim is made that service has already suffered tax, it should have been verified. Further, if the appellant was aware that service tax was being paid by Maruti Udyog Limited, invocation of extended period also may not be fair since there cannot be any suppression of facts or mis-declaration in such a situation.
Regarding trading activity - amendment to Cenvat Credit Rules and various decisions on the issues have not been taken into account, nor the same have been brought up before the lower authorities – Held that:- matter is remanded to the original adjudicating authority
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2012 (7) TMI 134
Cenvat credit and trading of goods - applicants are manufacturing as well as trading in respect of motor vehicles – assessee availed credit in respect of the service tax paid on common services which are in relation to the manufacturing activity as well as trading activity - contention of the applicants is that as per Rule 6 of the Cenvat Credit Rules, the trading activity cannot be considered as an exempted services therefore the demand is not sustainable – Held that:- trading activity is not an exempted service and credit is not admissible on the input services in respect of the trading activity. applicants are directed to deposit an amount of Rs.50 lakhs. - Pre-deposit of the remaining amount of duty, interest and penalty is waived.
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2012 (7) TMI 110
Violation of principle of Natural justice - demand confirmed by Commissioner as a revisionary authority, on revision of the order in original which was in favour of the assessee without waiting for reply of assessee and consideration of his defense - Held that:- This is a serious violation of principles of natural justice. Suffice it to say that the reviewing authority should have given sufficient opportunity to the appellant to file the reply and then considered the issue in a proper perspective. Impugned order set aside and assessee is directed to file reply to the show cause notice within stipulated time - Decided in favor of assessee.
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2012 (7) TMI 109
Renting out of immovable property - demand - assessee contended correct payment of service tax on ground of retrospective amendment to Section 65 of Finance Act, 2012 and extension of benefit of Notification No. 24/2007-ST in respect of property tax paid - Held that:- Issue needs to be considered by the adjudicating authority from the point of view of retrospective amendment and also for the extension of benefit of Notification No. 24/2007-ST, as regards the calculation of the gross value excluding the property tax paid by the appellant. Appeal is allowed by way of remand to the adjudicating authority.
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2012 (7) TMI 108
GTA - receiver of goods transport services - 75% abatement for the purpose of payment of service tax on Goods Transport Agency service paid by the receiver - Notification No. 32/2004-ST - department has taken a view that abatement cannot be allowed after the issue of Circular by the Board, if the service provider did not make declaration in the consignment note itself, even if he made a separate declaration and the same is available with the service receiver – Held that:- instructions issued in the Circular by the Board cannot be a mandatory condition when the notification does not have such conditions and such Circular cannot used to deny substantive rights which arise from the notification.
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2012 (7) TMI 107
Cenvat Credit - denial of credit – Held that:- If invoice is addressed to the head office of a company cannot be a reason enough to deny cenvat credit if it is otherwise available to assessee. In favor of assessee.
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2012 (7) TMI 106
Demand of service tax - advertisement agency service - activity for arranging the celebrities for promotion – Held that:- Applicants does not cover under definition of advertising agency service and from 1.7.2003 they are paying service tax under the category of business auxiliary service as the service has been brought under the service tax with effect from 1.7.2003. In favor of assessee.
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2012 (7) TMI 80
Levy of service tax on the tickets -'Airport Service'- assessee submitted that SCN issued is barred by limitation - Held that:- On verification of the records it was revealed that it does not cover the amount of tickets sold prior to 01.05.2006 for the journey carried out on or after 01.05.2006 - as there exists suppression of fact on the part of the applicants the extended period of limitation has rightly been invoked - failure to make out a case for waiver of pre-deposit of amounts involved - against revenue.
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2012 (7) TMI 79
Demand for service tax - Container Freight Station - department wants to levy service tax for storage of cargo under the category of storage and warehousing service rendered by the applicant – Held that:- in the case of Gateway Distriparks Ltd.( 2009 (2) TMI 181 (Tri)) Tribunal granted unconditional waiver of pre-deposit to the applicant. Waiver of pre-deposit granted.
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2012 (7) TMI 78
Penalty u/s 76 - appellant has already paid the full amount and interest as well as penalty u/s 78 - Held that:- Considering the approach adopted by the appellant this is a case where even penalty under Section 78 was not payable, even then the appellant paid 25% of service tax towards penalty so that unnecessary litigation is avoided and dispute does not arise and thereby paid of all the dues resulting from the adjudication order passed by the Additional Commissioner this is a fit case for waiver of penalty under Section 80 - as a confusion in the minds of the operators of service stations up to 31.10.04 as to whether service tax was payable on this service or not it and after the amendment of the law on 10.09.04, the service tax was being paid regularly by the appellant it cannot be held to be deliberate defiance - in fvaour of assessee.
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2012 (7) TMI 77
Cenvat Credit on Capital goods used for providing output services - Waiver of pre-deposit – Cenvat credit demand in respect of MS Angles, Channels, Beams, Joists, HR Sheets, HR Plates - these items had been used for fabrication for various machinery or parts thereof of their crushing plant - Since, the dispute on this point is of facts and the same can be decided only at the time of regular hearing, pre-deposit waived.
Regarding Cenvat credit demand in respect of tippers – Held that:- activities as unloading of iron ore lumps at the railway siding, arranging its transportation to the factory and loading of the processed or into the trucks are auxiliary activity and unless the appellant's contract with their clients are mixed contract prescribing separate races for their different activities, their activity would have to be classified as Business Auxiliary Service only and in that event the tipper used by them cannot be treated as capital goods. Directed to make deposit.
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2012 (7) TMI 52
‘Management Consultancy Service' - demand of a service tax - assessee contested that they are engaged in the activity of running and managing the Hotel - Held that:- Considering the definition of Management Consultancy Service u/s 65(65) a person who is engaged in providing any service in connection with the management of any organization which means he should provide a service for managing the day to day affairs of the organization. If he himself is managing the affairs of the organization, it does not fall under the ‘Management Consultancy Service'.
Considering the case of BASTI SUGAR MILLS CO. LTD. Versus COMMISSIONER OF C. EX., ALLAHABAD [2007 (4) TMI 25 (Tri)] that the agreement entered entrusting operation of factory and not for advice or consultancy,Appellant being in-charge of operation of factory was performing management functions. The activity was not falling within the scope of taxable service - decided in favour of assessee.
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2012 (7) TMI 51
‘Consulting Engineering Services' - demand of service tax along with penalty - Held that:- As it is revealed that the appellant is the manufacturer of PVC lamination film and are not a “Consulting Engineering Firm" it is onus on the department to prove that the appellant has received this amount as “Consulting Engineering Firm” which the department has failed to prove - in favour of assessee.
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