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Service Tax - Case Laws
Showing 41 to 60 of 150 Records
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2012 (7) TMI 670
Valuation - inclusion of statutory fees and levied - Transport of passengers embarking in India for International journey by Air Service - Demanding Service Tax amounting to ₹ 1,22,91,57,595/- for period 1.5.2006 to 30.9.2007 and ₹ 6,16,96,722/- for tickets sold prior to 1.5.2006 but used for journey afterwards - held that:- In the present case appellant has not come forward to show that it fulfilled all the conditions of Rule 5(2). Therefore under Section 67 of the Finance Act and Rule 5 of the Service Tax (Determination of Value) Rules, 2006 no benefit can be given to the appellant on account of statutory levies and charges and the confirmation of demand on these charges by the Commissioner is liable to be upheld. - Decided against the assessee.
Levy of service tax on tickets sold before 1.5.2006 and used after 1st May 2006. - held that:- Tribunal in the case of CCE v. Krishna Coaching Institute (2008 (10) TMI 34 - CESTAT NEW DELHI) has held that since service tax liability on commercial training and coaching institutes arising from 1.7.2003, tax on advance received prior to such date for service provided after said date is leviable, Tribunal in the case of CCE v. Ashok Singh Academy (2009 (8) TMI 288 - CESTAT, NEW DELHI) following the decision of the Krishna Coaching Institute (2008 (10) TMI 34 - CESTAT NEW DELHI) upheld the demand on advances received prior to 1.7.2003 holding that taxable event in service tax is providing of the service. Following these decisions accordingly, we uphold the confirmation of demand of service tax and cess by the Commissioner with regard to the air ticket sold prior to 1.5.2006 and journey undertaken on 1.5.2006 or thereafter. - Decided against the assessee.
Self adjustment of excess service tax paid by the appellant on account of cancellation of tickets - held that:- Since the appellant is ready to produce all the details, this finding of the Commissioner on denial of the self adjustment is set aside and the matter is remanded back to the Commissioner on the issue of self adjustment of the service tax paid by them on account of cancellation of tickets after giving an opportunity of hearing to the appellant.
Penalty - held that:- appellant was collecting the service tax on basic fare from the passengers but not depositing the amount with government and then service tax was deposited with government after 15 months attracting the provisions Section 76 of the Finance Act. Similarly taxable value showing the service in tax Returns filed by appellant to the department was also suppressed and in some of the months no value of the taxable service was shown in the Returns. Therefore, there was clearly suppression of the taxable value attracting provisions of Section 78 of the Finance Act. - Penalty levied but an option given to pay the penalty equal to the 25% of the deposited tax amount within 30 days
The penalty with regard to levy of service tax on fuel and insurance charges, on tickets issued prior to 1.5.2006 and on the component of statutory levies and charges is set aside.
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2012 (7) TMI 669
Commercial Coaching or Training Services and Management, maintenance and repair services - training in Aircraft Maintenance Engineering - maintenance and repair of air-crafts owned by their members. - held that:- What is recognized under the law is the licence issued by the DGCA and not course completion certificate issued by the appellant. With that certificate, the student can not get any employment or engage in self-employment, without clearing the examination conducted by the DGCA. - Decided against the assessee.
Charitable institute - Since the appellant is a charitable institution, can they be considered as a commercial training or coaching centre? - held that:- Here again the answer is negative. - Merely because the appellant is registered as a Charitable Institution under the Income Tax Act, 1961, that does not entitle the appellant to claim exclusion from the ambit of service tax. - Decided against the assessee.
Exemption under notification No.24/2004-ST dated 10-9-2004 - vocational training institute - held that:- on completion of the training by the appellant, the trainee can not seek any employment or undertake self-employment directly after such training or coaching. - Therefore, prima facie we are of the view that the appellant is not eligible for the benefit under the aforesaid exemption.
Applicability of Ruling of AAR in another issues - held that:- the status of AAR is higher than that of this Tribunal and therefore, this Tribunal cannot ignore the ruling by the AAR in a case where the facts are similar/identical and the questions of law are identical.
Overhauling work of the aircrafts - held that:- prima facie, the activity of overhauling for a consideration comes under the purview of "management, maintenance or repair service" and is liable to service tax.
Part per-deposit ordered.
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2012 (7) TMI 668
Difference between gross receipts shown in the profit and loss account and the value of service rendered by them as declared in their service tax return. - Construction of Residential Complexes - held that:- The amounts are confirmed with reference to figures shown in profit and loss account as per AS7 standards prescribed by the Institute of Chartered a Accountants for maintaining accounts of Construction companies. This standard is for ascertaining the profit and loss of a construction company and does not straight away reflect the position of receipt of payments which is the relevant factor for paying service tax. Amounts received against taxable activities can be arrived at only if the accounts are examined diligently by a person having some knowledge about accounting methods which is not done in this case. - Pre condition of pre-deposit waived.
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2012 (7) TMI 667
Short payment of service tax on Compliance Services - assessee is paying service tax on activities for Management Consultancy Service - adjudicating authority stated that meaning of management covers Compliance Services - assessee contested demand to be time barred - Held that:- The Tribunal in the case of Futura Polyesters Ltd. (2011 (7) TMI 802 - CESTAT, CHENNAI) clearly stated to the effect that most of the impugned activities could not fall under the definition of Management Consultancy Service - though compliance with laws is part of the responsibilities of management such responsibility per se cannot bring it into the ambit of the words "in connection with the management of any organisation" used in section 65(105)(r) and section 65 (65) of Finance Act, 1994 to tax such services - clarification given by CBEC circular dated 27-06-2001 that the ordinary meaning of management will not cover Compliance Services & a taxing entry should be understood in the same way in which these are understood in the ordinary parlance.
As the demand is time-barred because the appellants were acting on the basis of a circular issued by CBEC, invoking the powers under section 37B of Central Excise Act - If the public act relying on such circulars and still the charge of suppression is slapped on them it can be the worst travesty of justice. So there is no case for invoking suppression in this case - allowed in favour of assessee both on merits as well as on the ground that the notice is barred by time limit specified under section 73 of Finance Act, 1994.
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2012 (7) TMI 633
Demand of Service tax, interest and penalty – site survey, designing, foundation, fabrication of steel structures, transportation, assembly and erection of structures on the foundation, roofing, installation of lighting, false ceiling, painting etc. - whether their activity was 'Commercial or Industrial construction service' taxable w.e.f. 10/9/04 or the same was "erection, installation and commissioning" service (erection of structures) which became taxable only from May 2006 – Held that:- plea of the appellant which has a bearing on the quantum of duty demand is that during period w.e.f. 1/5/06 they were paying service tax as the gross amount received by them after availing abatement, not just on the job charges. This plea of the appellant has not been considered by the Commissioner - matter remanded to the Commissioner for denovo adjudication
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2012 (7) TMI 632
Refund of unutilized CENVAT credit on input services - partial refund to the claimant - Held that:- Commissioner (Appeals) passed order directing the original authority to refund CENVAT credit on the input services in question subject to production of Chartered Accountant's certificate as per the Board's Circular dated 19.1.2010 - the order passed by the Commissioner (Appeals) can hardly be said to be remand order.
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2012 (7) TMI 631
Waiver of pre-deposit – Service Tax demand along with interest and various penalties - appellant was receiving income by way of incentives from media in form of volume discount – Held that:- Appellant cannot function as a business auxiliary service agent of the media who can promote the business of the media - incentive is received by way of discount, whether prompt payment discount or volume discount - discount is the reduction in the price given to the buyer/receiver of the goods/services - Merely because the transaction is routed through the advertising agency, should the treatment be different - definition of “business auxiliary service” given in the Finance Act, 1994 does not warrant such a view - service tax is not leviable on the iscounts/incentives received by the advertising agency from the media - waiver of pre-deposit of the entire dues has been granted to the applicants during the pendency of the appeal
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2012 (7) TMI 630
Regarding demand for service tax under the category of ‘Intellectual Property Right Services' - horse race club - licensed book makers (bookies in short) accept bets from public - Club conducts live telecast of races which can be viewed from other racing clubs in India - neither the show-cause notice nor orders-in-original gives a clear proposal or findings as to what is the intellectual property rights involved in the transactions – Held that:- No categorization or findings by the learned Commissioners in any of the orders and, therefore - appellants have made out a strong case in their favour against the demand of service tax under the category of ‘Intellectual Property Right Services'.
Regarding Broadcasting Services - horse race club - licensed book makers (bookies in short) accept bets from public - Club conducts live telecast of races which can be viewed from other racing clubs in India – Held that:- Duty demand is for the period 01.04.2007 to 31.03.2009, they will not be, prima facie, liable to service tax during this period and would come under the service tax net only from 2010 onwards.
Regarding Business Support Services - horse race club - licensed book makers (bookies in short) accept bets from public - Club conducts live telecast of races which can be viewed from other racing clubs in India – Held that:- Neither of services rendered by the race course to the book makers will come under the category of ‘Business Support Services” - unconditional waiver of dues granted
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2012 (7) TMI 629
Manpower Supply Service - Appellant had undertaken the job of feeding of husk into the boiler in the factory of manufacturer and received consideration for the service provided - whether the appellants were undertaking the job of feeding husk into boiler or whether he was supplying man power – Held that:- There was confusion in understanding the scope of the levy – penalty and demand set aside – appeal allowed
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2012 (7) TMI 602
Clearing & forwarding agent's services - assessee's contention that review order passed by the Commissioner is time barred confirming the service tax demand including the amount already confirmed and paid by the appellant - Held that:- Review power under Section 84 should be exercised correctly and properly within the prescribed limitation period prescribed which starts from the date on which the order sought to be reviewed was passed - since the Assistant Commissioner's order has been passed on 15/12/04, in view of the provisions of Section 84(5), the review order should have issued within a period of 2 years i.e. by 14/12/06, while in this case the order was signed on the note sheet of the review file on 8/12/06,the fair copy of the order for issue/distatch was signed only on 29/12/06 - though the endorsement regarding dispatch signed by the Superintendent (review) and enclosed with the order bears the date "8/12/06" below the signatures of the Superintendent, forwarding of the fair copy on 8/12/06 would be impossible when the fair copy itself was signed on 29/12/06 - the impugned order is not sustainable and, hence, has to be set aside - in favour of assessee.
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2012 (7) TMI 601
Refund claim - Export of services - exemption notification for 'Medical Transcription Services' withdrawn effective from 01.03.2006 - respondents filed refund claims on 20.07.2006 under Rule 5 read with Notification 5/2006 CE (NT) dated 14.03.2006 which was rejected by the original authority on the ground that claim relating to earlier period cannot be entertained - claim related to the period from March 2006 to September 2006 - Commissioner (Appeals), holding that the ground on which the original authority rejected the refund claim was beyond the scope of the show-cause notice issued for proposing rejection for the refund claim – Held that:- denial of refund merely on the ground that the refund relates to period prior to registration not be justified. Therefore, there is no justification to interfere with the findings of the Commissioner in so far as the same related to the eligibility of the refund claim. Decided in favor of assessee.
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2012 (7) TMI 600
Penalty under Sections 76,77 and 78 - assessee discharged the Service Tax liability on pointed out by the Department – the interest for the period in question is still outstanding - Held that:- As the assessee has paid entire amount of Service Tax, he also agreed to pay the said interest as due – waiver of penalty u/s 78 as though there was a delay in making the payment of the Service Tax same was not by way of suppression, misdeclaration etc., as the entire value of taxable services for the relevant period has been correctly shown in the Balance Sheet – as there was a delay in payment of Service Tax and the short payment was made good on being pointed out by the Department the Appellant are liable to penalty under Section 76 only.
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2012 (7) TMI 574
CENVAT Credit of Service Tax paid on the Banking and financial services receive from City Bank has been denied on the ground that the invoices were issued in the name of another unit of the same company and not in the name of the appellant – Held that:- If another opportunity is given, they will submit the relevant details and also their books of accounts and satisfy the adjudicating authority that the services have actually been received by the appellant and not by the 100% EOU and the bills received by them cover the services provided - order is set aside and the matter is remanded to original adjudicating authority
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2012 (7) TMI 573
Whether the appellant is eligible for credit of Service Tax paid on courier service in respect of goods issued by them to the customers and for sending samples – Held that:- In the case of Continental Foundation Jt.Venture (2007 (8) TMI 11 (SC) ) held that appellant is eligible for credit of Service Tax – In favor of assessee
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2012 (7) TMI 568
Scope of input service - Rule 2(l) cenvat credit rules, 2004 - contention by AO that services allowed are having no nexus with the manufacturing activity - assessee contention that definition of input service is an inclusive definition and services used even in relation to setting up, modernization, renovation or repairs of a factory etc. are included in the ambit of "input service" - Held that:- Considering the case of CCE, MUMBAI-V Versus GTC INDUSTRIES LTD.[2008 (9) TMI 56 (Tri)] Commissioner has failed to discuss individually how each of the services claimed by the respondent-assesses as input services in the light of inclusive part of the definition has been accepted by him - every input service availed by the manufacturer cannot be treated as eligible for input credit without looking into the nexus - the matter is remanded to the Commissioner (Appeals) to record his finding in respect of each of the disputed services have been treated as falling under input service in terms of Rule 2(1) of the CENVAT Credit Rules
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2012 (7) TMI 566
Cargo handling service - service tax demand and penalty of identical amount u/s 78, 75A, 76 and 77 - Held that:- After examining the activity undertaken by the appellant as reflected in the agreement the prime work for which the contract was awarded to the appellant for crushing, screening and sieving of the dolomite in the mining area. The movement of the end-product from site of one activity to the site of second activity for further work upon the same is within the mining area. As such, it can be safely concluded that the said activity, being within mining area cannot be held to be covered by the definition of cargo handling service.
The activity of loading of finally processed dolomites at Dadhapara Railway sidings for transportation of the same to Bhilai would get covered by the definition of "cargo handling service" as it is not the case of unloading from where transportation has already been completed but a case of loading, for further transportation of the same.
The issue involved is of legal interpretation of the definition of the various services and being a complicated issue, the assessee cannot be saddled with any suppression or misstatement or mala fide intention so as to invoke longer period of limitation - direction to re-quantify the demand of the service tax only on consideration received for movement for loading of dolomite for further movement within normal period of limitation - as no mala fide on the part of the appellant, imposition of penalty upon them is not justified - partly allowed in favour of assessee.
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2012 (7) TMI 565
Whether the activities relate to field of Management or Engineering - ERP implementation – Held that:- ERP software has been prepared obviously taking inputs from various domain experts such as inventory control, production engineering, finance, labour management, marketing etc. However, the software is predominantly a product evolved by engineers - It cannot be said that everybody who is concerned with ERP implementation should be a Management consultant as such consultant can be from any other discipline as well - Activities clearly are in the field of engineering and not in the field of management.
Whether the service falls under Management Consultant - Appellants are claiming that their activities are only in relation to ERP implementation – Held that:- appellants are actually implementing applications software like SAP, Oracle, people soft. They are also into upgradation of application software from existing release level to higher version. They are also specifically into running of electronic data processing centre, business of data processing, word processing etc. - Same appears to be limited only to the field of Engineering and the services would fall under the category of consulting engineers only.
Whether the doctrine of estoppel can be invoked - Commissioner has, invoking the doctrine of estoppel, held that the appellants have treated themselves as rendering the services of 'management or business consultant' - Appellants have availed the benefit of Notification No. 16/2004 ST - demand stands confirmed only on the ground that the activities of the appellants can be considered to be in the field of management to bring them under the category of "management consultant"/"management/business consultant". This is held to be not sustainable - Commissioner has chosen to treat as if there were no exports at all and demanded service tax on the entire turnover and there is no justification for demanding service tax on the export of services - denial of credit amounting to ₹ 2.33 crores during the period October 2005 to March 2008 was on the ground of non-production of the necessary documents. This is being contested by the appellants stating that they have produced the necessary documents to department - Regarding the taxability of services which is in favour of the assessee - Order of the Commissioner is set aside and the appeal allowed
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2012 (7) TMI 564
Eligibility for exemption under Notification No. 12/2003-ST, dated 20.6.2003 – reimbursement expenses - Held that:- As the respondent was not merely acting as a Commission Agent but was also doing business promotion activity, the reimbursements of expenses of the staff employed by the respondents were being given is clearly not covered by the definition of commission agent in Notification No.12/2003-ST. So this issue is answered in favour of the Revenue.
Taxability of the consideration received as reimbursable expenses – Held that:- Without employing manpower the respondents could not have provided the service in question. The case laws on "reimbursable expenses" developed around expenses incurred by Clearing and Forwarding agents for godown rented out for keeping the goods of the principal and freight paid for forwarding the goods. These essentially do not form part of the value of the services of C&F agents. Now such decisions are being further interpreted to argue that any amount like wages of the personnel employed by the service provider, the telephone expenses incurred by the service provider, office rent of the service provider etc. will not form part of the value if billed as reimbursable expenses. This matter has been examined by a Larger Bench of the Tribunal in the case of Sri Bhagavathy Traders v. CCE [2011 (8) TMI 430 - CESTAT, BANGALORE] the ratio laid down in that decision would apply and service tax has to be paid on value inclusive of such amounts even if billed as reimbursements.
In the matter of Misc. expenses like Registration fees for label or brand, the expenses is not for providing the service being provided by the respondents. So if there is any proof of such expenses incurred by the respondent and reimbursed by SBL, such reimbursed amount will not form part of gross value of services.
Similar is the case of transportation expenses paid by respondents on behalf of the SBL. The respondents are not in the business of organising or doing transportation. Transportation is not part of business promotion activity. So actual transportation cost reimbursed will not form part of value of service rendered by the respondents.
Invoking section 80 – Held that:- A person giving his own interpretation of notification and then arguing that he was under the bona fide belief cannot get the protection of such section 80 - as the adjudicating authority did not give the option of paying 25% of the duty demanded within 30 days of the order for discharge of the liability imposed as penalty the matter is remanded to the adjudicating authority for calculation of penalty payable based on rulings given above - there is no need to impose penalties under Section 76 when penalty is imposed under Section 78.
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2012 (7) TMI 538
Permissibility of collection of service tax from the service receiver in case of foreign based service providers before 18.04.2006 - Held that:- It is only after enactment of Section 66-A that taxable services received from abroad by a person belonging to India are taxed in the hands of the Indian residents. In such cases, the Indian recipient of the taxable services is deemed to be a service provider. Before enactment of Section 66-A there was no such provision in the Act and therefore, the Respondents had no authority to levy service tax on the members of the Petitioners-association - Respondents are restrained from levying service tax from the members of the Petitioners-association for the period from 1-3-2002 till 17-4-2006 - in favour of assessee.
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2012 (7) TMI 508
Penalty - stockbroking services - defaulted in making payment of service tax liability – Held that:- Service tax liability was duly reflected in ST-3 Return filed with the Department before being pointed out by the Department - It also indicates his bona fideness in discharging service tax liability - Service tax liability was not discharged on being detected by the Department, but paid voluntarily pursuant to the disclosure already made in the ST-3 Returns - case covered under section 80 of the Finance Act and the penalty on the appellant is not warranted - Appeal is allowed
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