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Service Tax - Case Laws
Showing 61 to 80 of 121 Records
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2013 (1) TMI 404 - CESTAT AHMEDABAD
Goods Transport Agency service - denial of benefit of Notification No. 34/2004-ST dated 03.12.2004 - Held that:- As in respect of the very same assessee, for the subsequent period the very same first appellate authority has held that the appellant is eligible for the benefit of Notification No. 34/2004-ST.
Finding strong force in the contentions raised by the Chartered Accountant that in respect of an identical issue, in the case of Essel Mining & Industries Limited [2009 (6) TMI 386 - CESTAT, KOLKATA] the coordinate bench of the Tribunal has granted an unconditional stay where the gross amount charged by the service provider is Rs. 1500/- or less - appellant has made out a case of the waiver of pre-deposit of amounts involved.
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2013 (1) TMI 403 - CESTAT MUMBAI
Waiver of pre-deposit - Denial of CENVAT credit - on furniture and fittings under Chapter 96 - service tax paid on canteen services - Circular dated 29.04.2011 - Held that:- During the relevant period the furniture classifiable is not covered under the definition of capital goods and as the canteen service is not free to the employee, therefore, we find that the applicants have not made out a case for total waiver of pre-deposit. Direct to deposit pre-deposit
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2013 (1) TMI 379 - CESTAT KOLKATA
Recovery of interest - Commissioner(Appeals) has directed that interest should be charged only w.e.f. 05.04.2008 even though PAN based Service Tax registration was granted to the Appellant from 12.05.2008 - Held that:- As before the Commissioner(Appeals), no argument was advanced citing the provisions of law now mentioned in the grounds of appeal by the department, and as there was no Show Cause Notice issued by the Appellant directing payment of interest for the month of February, 2008 and March, 2008, except a remark by the assessing officer, thus the Commissioner(Appeal) has no occasion to refer and record his finding on the relevant provisions. In these circumstances it is necessary that the case be remanded to Commissioner(Appeals) to which the A.R. has no objection.
The department is free to raise all the grounds now raised before this Tribunal and the Commissioner(Appeals) is directed to consider the said grounds and decide the issue afresh with a reasonable opportunity be afforded to both sides. Appeal of the Revenue is allowed by way of remand.
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2013 (1) TMI 377 - CESTAT KOLKATA
Service tax on GTA services - availing the abatement of 75% on the gross taxable value in terms of Notification No.1/2006-ST dated 01.03.2006 - denial of abatement on general declaration filed by GTA service provider - period from April, 2007 to December, 2007 - Held that:- Recently, the Hon ble High Court of Gujarat in the case of CST, Ahmedabad vs. Cadila Pharmaceuticals [2013 (1) TMI 353 - GUJARAT HIGH COURT] has allowed the abatement of CENVAT Credit to the extent of 75% on the basis of the general declarations filed by the respective Goods Transport Agencies. Also see CCE, Rajkot vs. Sunhill Ceramics Pvt. Ltd.[2007 (12) TMI 24 - CESTAT, AHMEDABAD], CCE, Vapi vs. Neral Paper Mills P. Ltd [2008 (12) TMI 121 - CESTAT AHMEDABAD] - in favour of assessee.
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2013 (1) TMI 376 - CESTAT NEW DELHI
Demand of Service Tax - Extended period of limitation - Photography services - non-inclusion of cost of goods and materials - Circular F. No. 233/2/2003 CX-4 dated 7.4.04 - Held that:- Following the decision in case of SHOBHA DIGITAL LAB. (2011 (8) TMI 721 - CESTAT, NEW DELHI)wherein it was observed that due to divergent views of various judicial /quasi-judicial authorities on the issue of inclusion of cost of goods in the assessable value of photography services, there could be a bonafide doubt on the part of the assessee. Therefore demand raised in 2009 for the period 2003-2006 is hopelessly barred by limitation. In favour of assessee
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2013 (1) TMI 375 - BOMBAY HIGH COURT
Validity of Order - Non-consideration of relevant evidence – Order without following the direction of High Court - Whether order of Tribunal stands vitiated since the hearing was concluded on 17-8-2011 and the order was passed on 14-2-2012 with a delay of nearly six months in passing the order from the date of conclusion – Held that:- The Tribunal has not specifically dealt with some of the aforesaid vital issues in spite of the directions given to that effect by this Court. The order of CESTAT (2012 (4) TMI 456 - CESTAT, MUMBAI) is quashed and set aside. CESTAT is directed to pass fresh order.
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2013 (1) TMI 350 - CESTAT KOLKATA
Clearing and Forwarding Agent services - failure to pay service tax and education cess & failure to obtain registration as required under the Finance Act, 1994 - assessee paid the demand when questioned - Held that:- As assessee after realizing their mistake had voluntarily paid the entire service tax along with interest in October, 2006 & also filed necessary ST 3 Returns for the period August, 2005 to March, 2006 in November, 2006 the Department was wrong in issuing a show-cause notice in the month of June, 2007 demanding the said service tax and also accepting that the said amount had already been paid by the appellant.
As from the records, it is found that the mistake committed by the appellants is a bonafide one as is evident from the facts that they have duly reflected the entire amount of service charges received in their Audited Balance Sheet and also paid the service tax on realizing their mistake voluntarily along with interest before being pointed out by the Department there is no substance proved of suppression of facts leveled by the Department against the appellants. In these circumstances, this is a fit case for invoking Section 80 - in favour of assessee.
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2013 (1) TMI 349 - BOMBAY HIGH COURT
Ship Management Services - Management Consultancy Services - Whether the CESTAT was justified in directing the appellant to deposit for entertaining the appeal against the order - Assessee is engaged in providing ship management services to shipping companies - Show-cause notice was issued on 12th February 2009 - Demand of tax by an order-in-original dated 10th December 2009 – Against order assessee file an appeal before CESTAT for waiver of pre-deposit - In the year 2007 assessee has collected and paid tax from ABG Shipping under the heading 'Manpower Recruitment and Supply Agency Services' – Held that:- From the judgment of the Tribunal in the case of Creative Marine Services (2011 (8) TMI 610 - CESTAT, MUMBAI), it appears that the Revenue was seeking to tax such services under the head 'Management Consultancy Services'. Thus, it is seen that prior to 1st May 2006, there is inconsistency in the stand of the Revenue. Therefore, it would be just and proper in the facts of the present case to hear the appeal on merits without insisting on any pre-deposit. In favour of assessee
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2013 (1) TMI 348 - GUJARAT HIGH COURT
Services of a Valuer - Ambit and scope of Consulting engineer services under service tax - Service provided to a client - held that:- for the purpose of falling within the ambit of "consulting engineer", a person should provide advice, consultancy or technical assistance in any one or more disciplines of engineering. From the above discussion, it is apparent that the services rendered by a valuer, whether it be by an engineer or any other person, is not in relation to advice, consultancy or technical assistance in any one or more disciplines of engineering. In the circumstances, the said services would not fall within the ambit of "consulting engineer" as defined under Section 65(31)/65(48) of the Finance Act, 1994.
The services rendered by the petitioners as valuers would not fall within the ambit of services rendered by a "consulting engineer" as defined under the Finance Act, 1994. The respondents are, accordingly, restrained from levying service tax in respect of services provided by the petitioners as valuer to a client/any person as taxable service liable for payment of service tax as "consulting engineer".
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2013 (1) TMI 347 - KARNATAKA HIGH COURT
Cenvat Credit of service tax on catering, pick up service and mobile telephone services - in relation to manufacturing activity - held that:- The identical questions of law came up for consideration before this Court in the case of CCE v. Stanzen Toyotetsu India (P.) Ltd. [2011 (4) TMI 201 - KARNATAKA HIGH COURT]. This Court held that the transportation/Rent-a-Cab service is provided by the assessee to their employees in order to reach their factory premises in time which has a direct bearing on manufacturing activity. In fact, the employee is also entitled to conveyance allowance which would form part of his condition service. Therefore, by no stretch of imagination it can be construed as welfare measure by denying the availment of Cenvat credit to the assessee for providing transportation facilities as a basic necessity which has a direct bearing on the manufacturing activity.
While so holding the Court was of the view that if the credit is availed by manufacturer then the question is what are the ingredients that are to be satisfied for availing such a credit. That the said service should have been utilized by the manufacturer directly or indirectly in or in relation to the manufacture of final products or used in relation to activities relating to business. If any of the test is satisfied then the service falls under input service and the manufacturer is eligible to avail Cenvat credit and the Service tax paid on such credit.
In favor of assessee.
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2013 (1) TMI 323 - CESTAT KOLKATA
Utilizing CENVAT Credit in discharging service tax liability of GTA service (outward freight) - imposition of penalty under Section 76 - Held that:- It is not in dispute that utilization of CENVAT Credit on the GTA service (inward freight) was available to an assessee, till 18.04.2006 in discharging service tax on GTA service (outward freight) & under a bona fide mistake and belief, they had continued to utilize the CENVAT Credit availed on the amount of the service tax paid on the GTA service (inward freight), while discharging the liability as consignor for the GTA service (outward freight). The availment of the CENVAT Credit and its utilization were duly reflected in their ST-3 returns filed with the Department periodically
As decided in CCE & C, Daman vs. PSL Corrosion Control Services Ltd [2010 (3) TMI 784 - GUJARAT HIGH COURT] & CST, Bangalore vs. Motor World [2012 (6) TMI 69 - KARNATAKA HIGH COURT] Section 80 stipulates that no penalty shall be imposable on an assessee under Sections 76, 77 or 78 ibid if the assessee proves that there was reasonable cause for the said failure. The Appellants have submitted that the lapse occurred due to their presumption that the adjustments of output service tax against input service tax is allowable, which has not been otherwise communicated to them by the Department. Hence, this is an appropriate case to invoke the provisions of Section 80 - in favour of assessee.
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2013 (1) TMI 322 - ANDHRA PRADESH HIGH COURT
Consulting Engineering Services v/s Scientific and Technical Consultancy Service - assessee contested that services shown as research projects did not fall under the above category prior to 16.7.2001 and for the period prior to 16.7.2001 the "scientific and technical consultancy services" i.e research projects are not liable to levy of Service tax - Held that:- Admittedly, levy of Service Tax on "Consulting Engineering Services" was introduced with effect from 7.7.1997 by notification No.23/97 dated 2.7.1997 under the Finance Act, 1994 through the Finance Act, 1997. It is also not disputed that " Scientific or Technical Consultancy " was brought under Service Tax net with effect from 16.7.2001 only.
The assessee was not only providing "Consulting Engineering Services" but also "Scientific or Technical Consultancy" i.e. Scientific Research. The activities of "Scientific Research" and "Consulting Engineering Services" are different. The assessee in their letter dated 25.9.2002 had given a calculation indicating that only Rs. 15,58,750/- is payable towards service tax liability on "Consulting Engineering Services" (other than for research) for the period 1997-98 to 2001-02. They had included service tax liability on "Scientific and Technical Consultancy Services" i.e. research also for the period subsequent to 16.7.2001. They have also paid the said amount by TR-6 challans dated 21.1.2002 and 3.6.2002 as noted in para 7 of the order of the Commissioner of Central Excise and Customs (Appeals). Thus the Commissioner of Central Excise and Customs (Appeals), rightly allowed the appeal of assessee and rightly confirmed by Tribunal as the nature of activities undertaken by the respondent was not challenged before it - no substantial question of law arising in this appeal,l hence dismissed.
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2013 (1) TMI 321 - CESTAT KOLKATA
Goods Transport Agency Services (GTA) - demand & penalty confirmed - Held that:- As amount of service tax involved in this case is only Rs.4503/- which had already been paid by the appellants even though the same were discharged earlier by the respective transporter and bills to them also mentioned in their reply to the show-cause notice.
As it is not in dispute that the appellant had discharged the same along with interest on being pointed by the Department and filed necessary ST 3 Returns after taking registration there is no material produced by the Revenue in support of imposition of penalty under Section 78 - this is a fit case for invoking Section 80 - in favour of assessee.
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2013 (1) TMI 320 - CESTAT AHMEDABAD
Appeal not filed within the period of limitation - appeal submitted to the office of the Commissioner of Service Tax instead of Commissioner of Service Tax (Appeals) - Held that:- Appellant had filed the appeal and submitted the same in the office of Commissioner of Service Tax, Ahmedabad at 5th Floor while the office of the Commissioner of Service Tax (Appeals) is situated at 7th floor in the same building, Central Excise Bhawan. The appellant had, in fact served a copy of such an appeal to the office of the Assistant/Deputy Commissioner, Service Tax and there is a signature of the person receiving such an appeal.
Thus such a small procedural infraction should not come in the way of substantive rights of the appellant for considering the appeal on merits. FAA has erred in not considering the appeal on merits but deciding the same on technicalities, thus set-aside the impugned order and hold that appellant had in fact filed the appeal on 13.02.2008, which is within the period of limitation, may be before the wrong forum - restore the stay petition and appeal in the files of Commissioner of Service Tax (Appeal) to its original number with directions to consider the same on merits.
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2013 (1) TMI 300 - CESTAT MUMBAI
Reverse charge u/s 66A - Import of service - Appellant did not discharge the service tax liability - Interest and penalty levied - Intention to evade the tax - Appellant contended that whatever tax they paid on reverse charge basis, they were eligible to take credit - In view of the revenue neutral situation
Held that:- On account of revenue neutrality, service tax need not be paid is a proposition which cannot stand to any common sense or logic. It completely nullifies the levy of service tax u/s 66A and therefore, such a proposition should be rejected outright. The law cannot be interpreted in such a way so as to negate the very objective of taxation.
When a tax liability arises it should be discharged in time. If there is a default, then liability to interest is automatic and consequential and therefore, if there is a delay in payment of service tax which is the position in the present case, the appellant is liable to pay interest on delayed payment of tax. Direct to deposit pre-deposit of interest
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2013 (1) TMI 299 - CESTAT MUMBAI
Waiver of pre-deposit - Manpower Recruitment Agency - Applicant is a Management Institute - Employers came to their Institute for recruitment - Revenue contended that applicants are charging same amount from the students against the placement services - Held that:- Following the decision in case of MOTILAL NEHRU NATIONAL INSTITUTE OF TECH. (2010 (11) TMI 599 - CESTAT, NEW DELHI) the pre-deposit of dues are waived. Stay granted
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2013 (1) TMI 298 - CESTAT, AHMEDABAD
Condonation of delay - Delay of 29 days - Waiver of pre-deposit - Commission paid to the foreign agents - Signatory director of the applicant company was abroad during the time when the orders were received from the superintendent - Held that:- Appellant has paid of the entire amount of the service tax liability along with interest. Hence allow the application for the waiver of the pre-deposit and condone the delay
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2013 (1) TMI 297 - CESTAT MUMBAI
Franchisee service - Business auxiliary service - Consideration received for the services rendered as cum tax - Appellant has not collected service tax from the recipient of the services – Held that:- The entire consideration received has to be treated as cum tax and the amount received should be apportioned between the assessable value and the service tax liability. In favour of assessee
Penalty u/s 76 - failure to pay service tax in time – Assessee argues that imposition of penalty u/s 76 is quite harsh, especially when there is no intention to evade service tax on the part of the assessee - Held that:- Following the decision in case of Krishna Poduval (2005 (10) TMI 279 - KERALA HIGH COURT) that there can be a situation where even without suppressing value of taxable service, the person liable to pay service tax fails to pay. Penalty can certainly be imposed on erring persons. Therefore, for failure to pay service tax in time, the appellant is liable to penalty u/s 76. In favour of revenue
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2013 (1) TMI 296 - CESTAT BANGALORE
Waiver of pre-deposit - Stay of recovery - Held that:- When the department wanted the tax liability of the assessee to be revised, it was incumbent on the appellate authority to record a clear finding and to spell out in quantitative terms what should be the correct tax liability of the assessee. Further, when the department wanted the assessee to be penalised under the provisions invoked in the show-cause notice, again, it was incumbent on the appellate authority to consider the plea and, in the event of the assessee being found liable to any such penalty, determine the quantity of the penalty. None of these is forthcoming in this case. With request to the Commissioner (Appeals) to pass fresh speaking order hence remand back.
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2013 (1) TMI 272 - CESTAT NEW DELHI
Whether long term lease of 90 years will be covered by the meaning of "renting" or "leasing" used in section 65 (105) (91a) - Held that:- The ordinary meaning of "renting" will not cover long term leasing. The inclusive definition given in section 65 (105) (zzzz) including renting, letting, leasing and licensing in the same type of services would suggest that the word "leasing" used in the said section does not cover long term leasing where a property is given to a person with rights to transfer, assign and mortgage the rights. Such transfers are more akin to sale and less to renting of property. Such view is supported by the decision of Delhi High Court in the case of Krishak Bharati Co-operative Ltd Vs. Dy. CIT [2012 (7) TMI 526 - DELHI HIGH COURT] holding that payments made to GNIDC is an expenditure in the nature of capital expenditure and not a revenue expenditure.
The question whether the functions carried out by the appellant is a service also needs to be examined. A government authority doing an activity as per a mandate in an Act of the legislature by itself cannot take away the character of service from the activity. If that is not the case transportation functions done by Indian Railways would not amount to service. Considering such legal aspects and also in view of the fact that the appellant is an Authority set up by a State Government, which should not be put to hardship that may be caused by ordering pre-deposit in such a matter involving basic legal issues, it is proper to grant waiver of pre-deposit of dues for admission of appeal. Further there shall be stay on collection of dues arising from the impugned order during the pendency of the appeal.
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