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Service Tax - Case Laws
Showing 81 to 100 of 150 Records
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2012 (7) TMI 411
Penalty u/s 76 - assessee submitted that major amount of tax was paid when he came to know that its liability arose - Held that:- The case is remanded back to bring to record about the date on which liability arose, date of return ought to have been filed, date on which admitted tax liability should have been discharged and the date of discharge of duty liability.
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2012 (7) TMI 410
Applicable rate of service tax – year of bill or receipt – the services rendered prior to 14/5/03 the payment for which was received on or after 14/5/06 - Held that:- As decided in Reliance Industries Ltd. vs. CCE, Rajkot [2008 (1) TMI 86 (Tri)] that the rate of service tax chargeable is the rate in force on the date of rendering service and not the rate in force on the date receipt of payment - against revenue
Waiver of the penalty under Section 76 and 77 - short paid amount had been paid only after the issue of show cause notice – Held that:- It is not a case of non-levy or short-levy of service tax on account of any fraud, willful mis-statement or suppression of fact by the respondent as the assessee have been filing ST-3 returns correctly indicating the quantum of service tax required to be paid by them - appellant has discharged service tax liability along with interest - delay in filing in the absence of malafide intention on the part of the assessee, imposition of penalty may not be warranted - against revenue
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2012 (7) TMI 382
Refund - appellant paid and deposited Service Tax in respect of commission agent services provided from outside India - Service Tax was not required to be paid by the appellant - no protest was lodged at the time of deposit of said Service Tax – Held that:- In terms of provisions of section 11B, the refund claim are required to be filed within a period of one years from the relevant date. The relevant date stand defined as date of payment of Service Tax. The refund application filed on 9.12.09 is beyond the period of one year from the date of payment of Service Tax on 17.2.07. It is well settled law that the authorities working under Central Excise Act are bound by the provisions of the Act and cannot grant relief on the basis of justice, equality and good conscious – Appeal rejected
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2012 (7) TMI 381
Eligibility of the respondent for availment of cenvat credit of the duty paid on the Air Compressors purchased by them and received in the factory premises on 05.05.2005 - Air Compressors which are purchased and received by the appellant was for providing out put service Commercial and Industrial Construction Services (Pipeline Services) and the said services were brought into the tax net from 16.6.2005 – Held that:- Cenvat credit could not be availed on duty paid on such Air Compressors though it is capital good as the said capital goods were received in the premises of the service provider i.e. respondent before the services were taxable under the Finance Act, 1994.
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2012 (7) TMI 380
Refund claim - service tax paid on the input services - Courier Services and Transportation services utilised by the appellant for export of the goods – claim denied on the ground that appellant has not provided the original or self attested copies of shipping bills, courier bills, bills of lading, MRs of invoices indicating actual export of the goods – Held that:- Appellant is also directed to show the linkage of the goods which are being exported by them with documents - order is set-aside and matter is remitted back to the adjudicating authority
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2012 (7) TMI 379
Non eligibility for cenvat credit on the input services for the period prior to the registration - Held that:- As decided in J.R. Herbal Care India Limited v. CCE, Noida [2010 (3) TMI 391 (Tri)]no provision in the rules that credit was not available to unregistered manufacturers. Manufacturers exempted from the registration do not cease to be a manufacturer of excisable goods. Therefore, in respect of the goods manufactured during the period when the appellant was not registered, credit can be taken subsequently also - in the case of clandestine removals, even if the duty is paid subsequently, cenvat credit on inputs used will be available to the assessee/manufacturer subject to the conditions that proper documents showing the payment of duty are available.
If the appellant is eligible for cenvat credit, post registration, this availment or showing the account being credited by the service tax paid on input services, but not availing the same for the purpose of discharge of duty, would be more or less the same or an identical situation to indicate that as STP appellant is eligible for refund of underutilized credit - decided in favour of assessee.
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2012 (7) TMI 350
Waiver of pre-deposit - Demand the differential amount of service tax from the appellant on the ground that the appellant has not included the value of the gross amount received by him and as declared in the service tax returns - claim of the assessee that the amount attributable to the sale of food and beverages if entirely taken out from the total consideration received, then he is not liable to pay any amount as he has already discharged the entire service tax liability – Held that:- matter remanded back to the adjudicating authority for reconsideration of the issue
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2012 (7) TMI 349
Stay petition - Waiver of pre-deposit - Service tax liability - Technical Inspection and Certification Service provided - Appellant was informed on 01.08.2006 by the office of the Commissioner of Service Tax that their activities would not fall under the category of services rendered and they would not be covered under the Service Tax - Show cause notice was issued to the appellant on 13.04.2010 for the period October 2004 to March 2006 – Held that:- Department itself has taken a stand that the appellant s services would not fall under the category of services of Technical Inspection and Certification Services, invocation of larger period by the authorities seems to be not in consonance with the law - show cause notice is blatantly time-barred and on this ground itself – order set aside and appeal allowed in favor of assessee
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2012 (7) TMI 348
Cenvat credit of service tax paid on various services has been denied on the ground that the invoices did not contain service tax registration number of the service provider and in some other cases, the name and address of the recipient was not mentioned correctly – Held that:- appellants have also undertaken to get certificates from the service providers and stated that input service for inputs have been received and utilised. Two invoices which would be produced are required to be verified and the provision of Rule 9 have to be applied to see whether omission are condonable. requirement of pre-deposit of balance amounts is waived. Matter is remanded to original adjudicating authority
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2012 (7) TMI 347
Waiver of amount of Service Tax, interest and penalty – denial of credit of Service Tax paid on outward transportation of the goods - applicant relied upon the Board Circular dated 23/08/2007 whereby it has been clarified that in case the outward freight is part of price, the credit of service tax paid in this regard is admissible – Held that:- credit in respect of Service Tax on outward transportation is admissible if the freight is part of price. In absence of any evidence to show that the freight is part of the price, applicant had not made out a case for total waiver of the demand.
Demand of the service tax – BAS - appellant claimed the benefit of Notification No.21/05-ST dated 7/6/05 – Held that:- applicants are also undertaking the activity in respect of other goods also such as petrdidish, dental powder, medical equipments, semi-conductors, irradiation of O ring, LDPE Gaskets etc and these items are not covered under the Notification No.21/05-ST. Applicant has not made out a total waiver of demand
Regarding laying of cables – Held that:- contracts are for laying the cables and the Board vide Circular dated 24/5/10 clarified that laying of cables are not liable to service tax. In favor of assessee
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2012 (7) TMI 346
Waiver of pre-deposit – cenvat credit - suppression of facts or mis-declaration – as soon as the appellant was informed that they are liable to Service Tax, they promptly paid the Service Tax with interest - Held that:- if the appellant was to pay Service Tax on the services received by them, the entire amount was available as CENVAT Credit and could have been utilized for payment of Excise duty on the manufactured goods. By not paying the Service Tax, the appellant have, in fact, lost the benefit of immediate credit and interest element and no benefit could have been derived by avoiding Service Tax in this case. There is no suppression of facts or mis-declaration. Requirement of pre-deposit of penalty is waived. Stay granted.
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2012 (7) TMI 324
Valuation - activities relating to maintaining and operating the equipments - service tax liability on enhanced value including cost of electricity supplied free of cost by the customers in the value of taxable service - Held that:- Argument of the Revenue is not acceptable that the electricity supplied free of cost is a consideration in kind received by the assessee from its customers. Admittedly, the electricity supplied free of cost is meant to be consumed in the manufacture of oxygen and admittedly the oxygen so manufactured is used by the customers in the manufacture of their final product. It is the customers of the assessee who clear the final product on payment of duty and no benefit accrues to the assessee on such clearances. Thus, the electricity supplied free of cost by the customers to the assessee does not in any way amount to additional consideration received by the assessee in kind - sustainability of the demand raised against the assessee being in doubt, it is a fit case for entertaining the appeal without any predeposit - in favour of assessee.
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2012 (7) TMI 320
Waiver of pre-deposit - recalling of final order - COD application - appellants have raised a point of limitation in their memo of appeal which does not stands considered while rejecting the appeal - appellant s contention is that the period involved if 01.04.2000 to 31.03.2007 and the show cause notice stands issued on 27.10.07. During the relevant period, there was conflicting orders of the Tribunal on the said issue and there was utter confusion. As such invocation of longer period was not justified - appellants to deposit an amount of Rs.1.50 lakhs balance amount of duty and entire amount of penalty shall stands waived.
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2012 (7) TMI 319
Construction services - taxability - Construction activities undertaken on own land for residential complexes, which are further sold to the prospective buyers - Held that:- In view of decision in case of Magus Construction P.Ltd (2008 (5) TMI 18 (HC)), wherein it has been held that when a builder, promoter or developer undertakes construction activity for its own self, then in such cases, in the absence of relationship of service provider and service recipient , the question of providing taxable service to any person by any other person does not arise at all - Decided in favor of assessee.
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2012 (7) TMI 318
Waiver of predeposit of service tax - appellant had filed the appeal after more than three years – Held that:- Appeal is filed before the ld. Commissioner (Appeals) after condonable period of three months, the ld. Commissioner (Appeals) has rightly dismissed the appeal on the ground of limitation.
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2012 (7) TMI 317
Application for waiver of penalty - entire amount of Service Tax along with interest paid by assessee before issuance of Show Cause Notice – Held that:- It is a fit case for invoking section 80 of Finance Act, 1994. Accordingly the appeal is allowed
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2012 (7) TMI 316
Denial of CENVAT Credit - demand of service tax under the category of renting of immovable property after the mall was opened was discharged by utilizing the CENVAT credit in respect of tours and travel agent services, security service, air ticket booking services, etc - Held that:- Credit of duty paid on inputs is available when the inputs are used for providing an 'output service'. In the case of 'input service', the definition includes input services used by a provider of taxable service for providing an output service. Therefore the definition of input and input service are pari materia as far as the service providers are concerned.
As decided in CCE, VISAKHAPATNAM-II Versus SAI SAHMITA STORAGES (P) LTD.[2011 (2) TMI 400 HC)] that that without use of cement and TMT bars for construction of warehouse assessee could not have provided 'storage and warehousing service'. In the present case also, without utilizing the service like tours and travel agent services, security service, air ticket booking services,etc. mall could, not have been constructed and therefore the renting of immovable property would not have been possible - in favour of assessee.
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2012 (7) TMI 288
Taxability - Overseas commission agent services received – period prior to 18.04.2006 - Held that:- Liability under Finance Act 1994 for availing service of foreign agents arise after 18.04.2006 following Apex Court decision in case of Indian National Shipowners Association v. Union of India (2010 - TMI - 78723 - Supreme Court of India) - Decided in favor of assessee.
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2012 (7) TMI 287
Storage or warehouse keeper – recipient of service from foreign party i.e. PROSAFE – Held that:- In terms of the agreement, PROSAFE was responsible for maintaining floating storage and offloading unit system and was to operate the system efficiently to receive storage and deliver correctly in accordance with the specification and operating requirements. That does not bring the activity of PROSAFE squarely within the fold of Section 65 (105) (zza) as a storage or a warehouse keeper - Being an agent of the process of production, it was not a storage or warehouse keeper. Therefore, service was not provided by the foreign agency as storage or warehouse keeper - appellant shall not be liable to pay service tax as the recipient of service of the nature not falling within the purview of Section 65 (105) (zza) of Finance Act 1994 read with Section 65 (102) - appeal is allowed
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2012 (7) TMI 286
Penalty under Section 76 and 78 - non-payment of service tax – due to financial hardship – after being pointed out, discharged their service tax liability along with interest – Held that:- case is covered by the provisions of Section 73(3) of the Finance Act and, hence, penalty under Section 76 and 78 is not called for.
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