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Service Tax - Case Laws
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- 2019 (11) TMI 676
Valuation - Commercial and Industrial Construction Service - benefit of N/N. 1/2006-ST (Abatement) - It appeared to Revenue that appellant have wrongly availed benefit of Notification No. 1/2006-ST (Abatement) and that they have undervalued the gross value of service. Revenue was of the view that appellant should pay service tax on the gross value (including the material components) - extended period of limitation. HELD THAT:- The admitted fact is that the contracts executed by the appellant, the copies of which were scrutinised by the Department, are composite, or to be performed alongwith supply of material. No separate cost of material to be supplied was shown. The invoices raised, also contained classification of the material as “sales-tax free”, “sales against D-Form” etc. Further in para 9 of the SCN, it is r....... + More
- 2019 (11) TMI 675
Erection, Commissioning or Installation Service - Composite works contract or not - Demand of service tax - project which they have undertaken for construction of floodlighting along the Indo-Bangladesh Border - Benefit of N/N. 45/2010-ST, dt. 20.07.2010 and 11/2010-ST, dt. 27.02.2010 - demand of mobilization advance which they have received from their clients which was subsequently adjusted in the final bill - service tax under reverse charge mechanism on the freight paid to the vendors under GTA services - extended period of limitation - penalties. Project for construction of floodlighting around Indo Bangladesh Border in the State of Tripura - demand of service tax - HELD THAT:- It is evident from the records before us that the project was awarded by Ministry of Home Affairs to M/s Coastal Projects Private Limited, A Government of Indi....... + More
- 2019 (11) TMI 616
Refund of service tax - Rule 5 of CCR 2004 - export of services - service of the appellant are classifiable under BAS and being ineligible service, duly exported, the appellant filed refund claim for the period 2008-09 - HELD THAT:- Except as provided in the agreement, the appellant have not raised any invoices for after sale service. They have raised invoices for the marketing services rendered, classifiable under BAS and have received commission from the manufacturer located in Japan - Accordingly in terms of the export of service rules, 2005 rule 3 (2) (a) read with Rule 3(2)(b)(ibid), the appellant have satisfied both the conditions, as the receiver of the services is located outside India and have received remittance for the services in convertible foreign exchange. The appellant have exported their services outside India. Accordingly they are entitled to refund under Rule 5 of CCR 2004 - appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 615
Denial of abatement claim - GTA Service - reverse charge mechanism - N/N. 32/2004-ST dated 3.12.2004 - Department proceeded to deny such abatement claim for the reason that the appellant was unable to submit declaration in respect of all the consignment notes from the Goods Transport Agencies to the effect that they have not availed the benefit of CENVAT credit - HELD THAT:- The issue in dispute is the claim of abatement by the appellant to the extent of 75% in terms of N/N. 32/2004 dated 3.12.2004. The issue is no more res integra and stands settled in favour of the appellant in the case of LYKES LINE LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2016 (11) TMI 192 - CESTAT MUMBAI] in which the Tribunal has taken the view that the condition if any imposed on the GTA cannot be practically complied by the recipient of service - As such, the Tribunal held that the benefit of abatement cannot be denied to the recipient of service. Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 614
Voluntary Compliance Encouragement Scheme - the condition of payment of 50% of the declared tax dues under the scheme not fulfilled - section 107 (3) of the Finance Act, 2013 - whether the VCS- 1 application filed by the appellant have been rightly refused observing that they have declared tax dues for the period October, 2007 to December, 2012, for not satisfying/ fulfilling the condition of payment of 50% of the declared tax dues under the scheme, on or before 31st December, 2013 as stipulated under section 107 (3) of the Finance Act, 2013? HELD THAT:- There have been a clerical error on the part of the appellant in filling up the form VCES-1 properly, as already aforementioned. Accordingly, I hold that the substantial benefit should not be disallowed for venial mistake of clerical nature. Moreover, in the calculation sheet annexed to f....... + More
- 2019 (11) TMI 613
Condonation of 67 days delay in filing the appeal before the CESTAT by the Revenue - Section 86(2) of the Finance Act, 1994 - HELD THAT:- In the absence of any acceptable/believable reason for not filing an appeal, no fault can be found with the impugned order of the Tribunal, in holding that the reason given for the delay as sufficient cause, namely, the introduction of GST is on the face of it is unacceptable as the orders in question were all passed much after the introduction of GST. The occasion to adopt a liberal approach in matters of condonation of delay would only arise if some cause is made out for the delay - Therefore, the view taken by the Tribunal in the present facts cannot be said to be perverse. The proposed question of law does not give rise to any substantial question of law. Thus, not entertained - Appeal dismissed.
- 2019 (11) TMI 567
Refund of service tax - time limitation - export of services - commission paid to overseas agents - claim was rejected on the ground that the claim pertaining to the period October 2008 to December 2008 was filed on 28.05.2009 i.e. within the period of six months as prescribed in notification however, without the duty paying challans which was dated 11.08.2009 - HELD THAT:- In the appellant’s own case, the issue has been decided by the Tribunal in M/S SOPARIWALA EXPORTS PVT LTD VERSUS CCE & ST- VADODARA-I [2018 (5) TMI 1460 - CESTAT AHMEDABAD] where it was held that the refund claim cannot be rejected on the ground of time bar, since, they have complied with the condition of filing the refund claim within 6 months from the date of export of goods for the relevant quarter i.e. from July, 2008 to Sept., 2008. Refund allowed - appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 566
Refund of service tax - unjust enrichment - section 11B of CEA - SCN was issued detailing unjust enrichment provisions in Section 11B as well as on the ground that sub-contractors are liable to pay service tax as well as main contractor - HELD THAT:- The Commissioner (Appeals) should have decided the matter only on the aspect of unjust enrichment as all other issues were either not raised at the first stage of SCN or settled in favour of the appellant. Though the appellant claimed that they have submitted various records however there is no particular records which show that incidence of service tax initially borne by the appellant was not passed on any other person. The fact remains that the sub contractor has charged the service tax and the same was reimbursed by the appellant to the sub contractor. The provision of the service tax was ....... + More
- 2019 (11) TMI 565
Nature of activity - service or not - Levy of service tax - service of erection and installation are provided by the foreign party to the appellant - reverse charge mechanism - N/N. 19/2003-ST dated 21/03/2003 - HELD THAT:- The entire transaction is of purchase of imported bubble wrap machines. The appellants have discharged custom duty considering the total value of machine shown in the invoice. There is no separate charge for service such are erection and installation of such machinery. On the total value of the invoice, Custom duty was paid. The erection and installation is incidental to the sale/supply of the machine. Therefore, the entire transaction is of sale and purchase of the machine and, hence, no service is involved. Therefore, no Service Tax can be demanded. Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 564
Recovery of the service tax amount collected from the customer - Invocation of Section 73A of the Finance Act, 1994 - recovery sought on the ground that the appellant had claimed the benefit of N/N. 24/2007-ST dated 22.05.2007 and the benefit of the said notification was availed by the appellant, was not passed on to the customer - HELD THAT:- It is an admitted fact on record that the disputed amount in question was paid back by the appellant to its customer subsequent to issuance of the show cause notice. Thus, under such circumstances, it cannot be said that the provisions of Section 73A ibid should be applicable for recovery of such amount, considering the same as a collection of excess service tax from the customer. Under an identical situation, this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS VINAYAK AGROTEC....... + More
- 2019 (11) TMI 563
Waiver of penalty - short paid service tax paid later - intent to evade or not - HELD THAT:- Nowhere the appellant has made any defence regard the short fall of service tax paid by them. If the same is not detected by the Revenue, the said short fall remains a short fall of service tax which the appellant would have enjoyed - As the short fall has come during the investigation itself and the appellant did not explain the reasons and kept lingering on the matter for two years, in that circumstance, melafides of the appellant have been established by the Revenue. The appellant is not entitled for any relief from this Tribunal - Appeal dismissed.
- 2019 (11) TMI 562
100% EOU - Refund of service tax - export of services - applicability of Section 11B of the Central Excise Act, 1944 - HELD THAT:- This Bench after considering the plea of the Ld. Consultant Shri. S. Ramachandran that the payment of service tax in respect of Renting of Immovable Property was by mistake however, concluded, that the refund could not be claimed under Rule 5 ibid - It is surprising to note as to how the adjudicating authority chose to read conclusion as direction, which was not there, in her order dated 31.10.2017 as to the filing of a separate claim under Section 11B ibid. She has also gone farther, when she concludes that clause (ec) to Explanation B of Section 11B ibid would come to the rescue of the appellant. The appellant consciously filed its application for refund under Rule 5 ibid and even though there were no such d....... + More
- 2019 (11) TMI 561
Demand of service tax - works contract service - reverse charge mechanism - demand of interest and penalty - HELD THAT:- The revenue could not establish the said service as ‘works contract service’ throughout the proceedings - the demand as also interest and penalty set aside related to confirmation of service tax on ‘works contract service’ under reverse charge mechanism from the appellant who is service receiver. The document produced before the Original Authority established that the said service was ‘repair and maintenance service’. The issue is no more res-integra and stands settled by this Tribunal’s decision in the case of SIEMENS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PONDICHERRY [2013 (2) TMI 609 - CESTAT CHENNAI] wherein it was held that if the adjustment of excess paid amount is de....... + More
- 2019 (11) TMI 539
Exemption from service tax - Works Contract Services or Commercial or Industrial Construction Services? - construction of railway lines for private parties and construction of private roads - case of the revenue is that both CICS and WCS exclude railways or roads - Demand of interest and penalty as well - HELD THAT:- In respect of one of the appeals herein viz., M/S UNITED RAIL ROAD CONSULTANTS PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE & SERVICE TAX, HYDERABAD-III [2019 (6) TMI 1409 - CESTAT HYDERABAD] has decided that the charging section of works contract under section 65(105)(zzzza) of the Finance Act, 1994 excludes railways. Since it does not qualify the term by saying “railways for public carriage or railways by the Government”, it was held that the term “railways” includes any form of railways....... + More
- 2019 (11) TMI 538
Refund of service tax - time limitation - refund claims has been rejected as time barred filed under N/N. 27/2012-CE N.T dated 18.06.2012 - period April 2016 to June 2016 and January 2016 to March 201 - refund rejected on the ground that the foreign remittances were received prior to one year from the date of filing the refund claims are barred by limitation in terms of the Notification - HELD THAT:- In the cases, in hand, the refund claim required to be filed on quarterly basis in terms of Rule 5 of CCR, 2004. Therefore, the appellant were required to file refund claims within one year from the date when the quarter ends and the same view was taken by this Tribunal in the case of M/S. NEO GROUP SERVICES INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX, BENGALURU EAST [2018 (11) TMI 978 - CESTAT BANGALORE]. The refund claims filed by the appellant are in time - Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 537
Refund of service tax - benefit of N/N. 41/2007-ST dated 06.10.07 - rejection of refund on the ground that the appellant has not exported the goods, the services for which the refund claim has been filed i.e. transportation of goods from their factory premises to the port of export and terminal handling charges at port are not port services and the documents produced by the appellant are not in their name for availment of Cenvat credit. Denial of refund on the ground that the appellant has not produced the proof of export - HELD THAT:- As it is a case of revenue that appellant has not exported the goods, in that case, the adjudicating authority was not required to go into the issue no. 2 & 3 and straight way could have rejected the refund claim as they have not exported the goods, but it is evidence on record that the appellant has fi....... + More
- 2019 (11) TMI 498
Condonation of delay in filing appeal - an appeal was filed by the Managing Director of the petitioner-firm with a delay of 272 days, due to reasons, beyond his control, like death of his mother, hospitalization and recovery of his illness - power of Commissioner (Appeals) to condone delay - HELD THAT:- This Court is not inclined to interfere with the order of the Tribunal, on the ground that in a similar case in M/S. FALCON TYPES LTD. VERSUS THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, THE COMMISSIONER OF CUSTOMS (SEAPORT-IMPORT) [2016 (7) TMI 40 - MADRAS HIGH COURT], we have considered the power of the appellate authority to condone the delay beyond the extendable period and it was held that It is well settled law that When the appeal itself is time barred and when the appellate authority or the CESTAT, Chennai, cannot condone the delay, in terms of the statutory provisions, prescribing a specific period of limitation. Petition dismissed - decided against petitioner.
- 2019 (11) TMI 497
Rectification of mistake - error apparent on the face of record or not - reopening of the case - HELD THAT:- Para-13 of the impugned final order which, in fact, has been quoted in the impugned application is itself sufficient to reflect that all the contentions as were raised by the appellant have duly been dealt with in the said final order. As far as the arbitrary/vagueness of a show-cause notice is concerned, the same is held to be correct in principle. The decision cannot be re-opened under the guise of rectification of mistake. Reliance placed in the case of M/S. SRF LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE-CHENNAI-I [2019 (4) TMI 750 - CESTAT NEW DELHI] which clarifies that a decision on debatable point of law or fact cannot be corrected by way of rectification. Otherwise also the impugned final order has remanded the matter to....... + More
- 2019 (11) TMI 496
Condonation of delay in filing appeal - service of order - change in email address - address changed to new one - HELD THAT:- A perusal of the application does not indicate that any letter in writing was submitted by the Appellant to the Department regarding change of address. Only the change in the e-mail address had been intimated to the Department and this change of e-mail address would not necessarily lead to a conclusion that the postal address had also changed in the meantime. Mere submission of the certificate of registration cannot also be made a ground that the Department should have changed the address of the Appellant. In the absence of any specific communication from the Appellant regarding change of address, the Department was justified in sending the order at the recorded address - This apart, it is also not the case of the ....... + More
- 2019 (11) TMI 495
Maintainability of appeal - non-payment of pre-deposit - section 35F (1) of the Central Excise Act 1944 - Imposition of penalty - renting of immovable property - duty demand against renting of immovable property with retrospectively effect from 1-6-2007 for the period between 2008-09 and 2011-12 - extended period of limitation - HELD THAT:- It is observed that Learned Commissioner (Appeals) had dismissed the appeal before him under section 35F (1) of the Central Excise Act 1944 for non-payment of pre-deposit at the required rate and simultaneously also discussed on the merit of the appeal. Going by the statutory provision contained in section 35F (1), he should not have entertained the appeal for hearing without payment of pre-deposit and in such a case merit of the appeal should not have been discussed since the same amount to admission ....... + More