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Service Tax - Case Laws
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- 2021 (10) TMI 849 - CESTAT NEW DELHI
Refund of the pre-deposit - Conflict with transitional provisions or not - dispute for the period prior to 30.06.2017 (i.e. prior to GST regime) - HELD THAT:- Appreciating that order of Commissioner (Appeals)/(Audit) dated 9.3.2018 is in conflict with the transitional provisions, as contained in Section 142 of CGST Act, wherein it has been provided that on or after 1.7.2017, any adjustment regarding refund of the duty or liability on the assessee has to be adjusted in cash. The Adjudicating Authority directed to disburse refund of ₹ 41,94,304/- in cash. It is further held that the appellant/assessee is entitled to interest on the said amount from the date of reversal (03.11.2015) till the amount of refund in cash, @12% p.a., as held by the Hon’ble Supreme Court in SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT]. Appeal allowed - decided in favor of appellant.
- 2021 (10) TMI 848 - CESTAT CHENNAI
Levy of service tax - postal charges/courier charges - reimbursable expenses - period is from 12/2004 to 3/2009 - HELD THAT:- During the relevant period, reimbursable expenses were not includible in the taxable value for determining the tax liability. The amendment in this regard so as to include reimbursable expenses also in the gross amount came to be introduced only w.e.f. 14th May, 2015. The issue stands decided by the judgment of the Hon’ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. Appeal allowed - decided in favor of appellant.
- 2021 (10) TMI 811 - CESTAT MUMBAI
CENVAT Credit - providing of taxable as well as exempt service - exempted service/ job work - non-maintenance of separate record - Rule 6(3) of the Cenvat Credit Rules, 2004 - HELD THAT:- N/N. 214/86-CE (NT) though was effective from April 1996 has been amended extensively vide N/N. 49/2002 dated 16.09.2002 so as to make the manufacturer accountable for discharging his obligation in respect of goods under Rule 6 of the Cenvat Credit Rules, 2002. As such when the notification was made service was not treated as an taxable incident in India and the said notification has clearly excluded job workers from the purview of payment of excise duty if ultimate manufacturer was to pay the duty at the time of clearance. Therefore, this amendment of 2005 since has only fixed manufacturer liable to comply with Rule 6 of Cenvat Credit Rules, 2004, to my....... + More
- 2021 (10) TMI 763 - KARNATAKA HIGH COURT
Rejection of declaration for Tax Relief under the provisions of Sabka Vikas [Legacy Dispute Resolution) Scheme, 2019 - mistake apparent on record or sufficient reasons for review - misconception of fact or not - Whether this Court, in exercise of the jurisdiction under section 114 and Order XLVII Rule 1 of CPC, must review the order on the ground that the learned counsel for the petitioner in not arguing the grounds (now urged) has made a mistake apparent on record in misconstruing the facts, or such circumstances would constitute sufficient reasons for review? HELD THAT:- The provisions of Section 73(1B) of the Finance Act, 2019 or Section 121(r) of the Scheme substantiate the petitioner’s case that it’s liability was ‘quantified’ for the purposes of Tax Relief under Section 124(c) of the Scheme. Even otherwise, t....... + More
- 2021 (10) TMI 704 - CESTAT NEW DELHI
Refund of unutilized CENVAT Credit - rejection on the ground that the appellant did not debit the amount of refund claimed at the time of fling the refund claim, but have debited such amount subsequent to the filing of the refund claim but before adjudication - Rule 5 of Cenvat Credit Rules read with N/N. 27/2012-CE (NT) - HELD THAT:- The debit of the amount of refund claim in the cenvat credit account suo moto before the adjudication, is sufficient compliance Condition No.2(h) of the Notification No.27/2012-CE. Further relying on the ruling of the Hon’ble Supreme Court in the case of CCE VERSUS M/S HARI CHAND SHRI GOPAL [2010 (11) TMI 13 - SUPREME COURT] it is further held that the Commissioner (Appeals) have mis-conceived and mis-directed himself by ignoring the ruling of the Hon’ble Supreme Court, which is both judicial ind....... + More
- 2021 (10) TMI 703 - CESTAT MUMBAI
Dispute mitigation scheme by enactment of chapter VI in Finance Act, 2013 and notification of Service Tax Voluntary Compliance Encouragement Rules, 2013 - computation of liability undertaken by the competent authority on submission of their declaration dated 13th December 2013 was in error - incorrect disqualification attached to ‘substantially false’ declarations for denying the privileges of escapement from interest and penal detriments appended to non-payment/short-payment of tax liability - coverage of exclusion/exemption to ‘maintenance’ of lifts - HELD THAT:- The catena of decisions cited by Learned Counsel lead to a conclusion that are not in consonance with the findings of the adjudicating authority in the impugned order. Every authority empowered under Finance Act, 1994 is bound by, and required to adhere ....... + More
- 2021 (10) TMI 702 - CESTAT NEW DELHI
Levy of service tax - service to financial institutions in relation to selling of their loan products to their customers - taxability of commission as received by the appellant in terms of sub section 19 of 65 of Finance Act or not - imposition and quantum of penalty - HELD THAT:- The services being rendered by the appellant are defined under section 65(19) of Finance Act, 1994. When the provision is read with section 68 thereof, it becomes clear that service was taxable and the appellant was liable to pay the service tax. There has been a major change in Finance Act with effect from 01.07.2012 by virtue of negative list under section 66B of the Act was provided. It was held that the services which are not covered under the said list are taxable. Apparently, the services of DSA to Financial institute is not mentioned in the said negative ....... + More
- 2021 (10) TMI 642 - CESTAT CHENNAI
SEZ units - refund of service tax paid on input services used in the authorized operations - rejection of claim on the ground that the refund claim is filed beyond the time-limit of one year from the date of payment of Service Tax - Chartered Accountant certificate not signed by the statutory auditor - services included in the specified list of services or not - original invoices have not been submitted - applicability of N/N. 09/2009-ST dated 03.03.2009, as amended vide N/N. 15/2009-ST dated 20.05.2009 superseded by N/N. 17/2011-ST dated 01.03.2011. Rejection on the ground of time limitation - HELD THAT:- It is not disputed that all claims had been filed on or before the last date for filing the refund claims. These were returned by issuing Deficiency Memo since the appellant had not furnished necessary documents - It can be seen from th....... + More
- 2021 (10) TMI 641 - CESTAT ALLAHABAD
Refund of service tax paid - Export of services or not - intermediary - services provided by the appellant to its parent company in Hong Kong - Period Oct 2015 to March 2016 and April 2016 to Sept 2016 - HELD THAT:- Admittedly, the appellant have received the charges for their services in convertible foreign exchange. Rule 2(f) read with Rule 9 of Place of provision of Service Rules, 2012, clearly provides that ‘intermediary’ which means one who procure or an agent, does not include a person who provides the main service or supply of goods on his account. The appellant have provided the services to their holding company located India outside India, on their own account. Thus, the appellant have exported their services. The appellant is entitled to refund of the service tax paid under mistake. Further, the tax has been paid und....... + More
- 2021 (10) TMI 640 - CESTAT MUMBAI
Classification of service - Franchise Service or not - one stop painting solution to the customers - respondent recovered certain income under the head Home Solutions Operations - Revenue was of the view that these services will fall under a category of franchisee service as defined under Section 65(105)(zze) of the Finance Act, 1994 - HELD THAT:- It is not settled law that unless and until representational rights have been actually transferred to the franchisee, the service tax could not have been levied under the category of franchisee services. The terms of the agreement clearly provide that home solution service provider is barred from making any statement on behalf of the company or in any manner how to represent the respondent. When there is a specific clause in the agreement which bars the home solution service provider from repres....... + More
- 2021 (10) TMI 590 - DELHI HIGH COURT
Principles of natural justice - seeking directions to the Respondent No. '4' to give an opportunity of hearing to the Petitioner to present its case in relation to the Second Declaration - HELD THAT:- The Respondent vide its letter dated 08th August, 2019 had pointed out that, even according to the Petitioner’s own calculation, service tax liability was due and outstanding. The Petitioner was asked to deposit the balance service tax liability as calculated by the Petitioner vide the said letter. In fact, from the summons dated 20th May, 2019, it is apparent that the case was under investigation under Sections 70 and 174 of the CGST Act and the Petitioner has been asked to furnish a large number of documents including copies of challans showing its service tax liability deposited after the date of service - the said communica....... + More
- 2021 (10) TMI 589 - CESTAT BANGALORE
Refund of service tax paid as pre-deposit - duty paid under protest - applicability of time limitation - HELD THAT:- Hon’ble High Court of judicature at Madras in one of its decisions in the case of M/S. 3E INFOTECH VERSUS CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, COMMISSIONER OF CENTRAL EXCISE (APPEALS-I) [2018 (7) TMI 276 - MADRAS HIGH COURT] has considered an almost identical issue and, has, after considering decisions of the Hon’ble Apex Court as well as other High Courts, held that application under Section 11B for refund cannot be rejected on the ground that it is barred by limitation. On merits, the adjudicating authority has observed that the appellant’s claim was not supported by any documentary evidences. Further, also the Chartered Accountant certificate furnished by the appellant is given in 2019 ....... + More
- 2021 (10) TMI 588 - CESTAT HYDERABAD
Short payment of service tax - Business Auxiliary Services - Share Transfer Agent services - Registrar to an Issue services rendered by them - appropriation of amount paid towards the demand of tax - demand of tax on Intellectual Property services” received by them from foreign service providers - Manpower Recruitment or Supply agency services received by them from foreign service provider - demand of interest alongwith penalty - HELD THAT:- Undisputedly, the appellant is rendering the service of ‘Registrar to Issue’ services and ‘Share transfer agent’ services, both of which became chargeable to service tax w.e.f. 01 May 2006 and it has been paying service tax from that date. Reimbursable expenses recovered by the appellant from its clients - HELD THAT:- It has now been settled by the Supreme Court in UNION ....... + More
- 2021 (10) TMI 587 - CESTAT AHMEDABAD
Classification of services - Repair & Maintenance or Commercial or Industrial Construction Service or Works Contract Service? - eligibility of abatement available for commercial or industrial construction service under N/N. 18/2005-ST - HELD THAT:- Reliance placed in the earlier appeal of the appellant this tribunal in M/S H KANT & CO. VERSUS C.C.E. & S.T. VADODARA-I [2019 (2) TMI 1304 - CESTAT AHMEDABAD] where Tribunal remanded the matter for verifying the fact of execution of work with material and whether the same falls under works contract. In the present case also the same fact is involved therefore, this matter also needs to be remanded for denovo adjudication to the Adjudicating Authority - Appeal is allowed by way of remand.
- 2021 (10) TMI 536 - MADRAS HIGH COURT
Permission for withdrawal of appeal - Principles of natural justice - maintainability of appeal filed by the Department without considering the plea as to the necessity of possessing a registration certificate for availing CENVAT credit of service tax paid on input services for the purpose of claiming refund - HELD THAT:- The learned Senior Standing Counsel appearing for the appellant sent a letter dated 28.9.2021 to the Registry seeking to list the above appeal for withdrawal. Hence, the matter is listed today under the caption 'for withdrawal'. Today, when the case is called, a similar request is made to that effect. The appeal is dismissed as withdrawn.
- 2021 (10) TMI 535 - KARNATAKA HIGH COURT
Denial of CENVAT Credit with penalty - extended period of limitation - first year of service tax implementation - recovery of service tax not paid - failure to submit half yearly returns in time - service tax was not paid in time - suppression of facts or not - Section 73(1) of the Finance Act, 1994 - HELD THAT:- The respondent-Bank has maintained separate accounts in respect of service tax and education cess. The service tax was implemented with effect from 10.09.2004. The Commissioner and the Tribunal both have arrived at a conclusion that the assessee are new to service tax matters. The Commissioner as well as the Tribunal have also arrived at a conclusion that the respondent-Bank has accounted service tax and education cess separately while making cash payments. The material on record does not indicate that the respondent-Bank has ind....... + More
- 2021 (10) TMI 534 - MADRAS HIGH COURT
Seeking order to repay the amount under SABKA VISWAHS SCHEME 2019 - the petitioner has given a representation to the respondents on 23.10.2020 to reconsider the issue and to accept the payment and permit the petitioner to avail the benefit of the scheme - HELD THAT:- The said representation since has been considered by the respondents and it has been rejected through the order, dated 10.03.2021 and the copy of the same also has been annexed in the typed set of papers filed by the petitioner, without challenging the said order, dated 10.03.2021, since the petitioner has moved this writ petition once again seek for a writ of Mandamus to consider his representation, dated 23.10.2020, therefore, the same cannot be entertained by this Court. Petition dismissed.
- 2021 (10) TMI 533 - CESTAT BANGALORE
Refund of CENVAT Credit - denial of refund on the ground that the appellant had not debited the amount claimed as refund from their CENVAT credit account, which according to the said authority, was in violation of Para 2(h) of N/N. 27/2012-CE (NT) dated 18.06.2012 - Rule 5 of CENVAT Credit Rules, 2004 (CCR) - HELD THAT:- It is the case of the appellant that the claim of the appellant has been filed before the expiry of the quarter in which one year period from the last date of receipt of falls and accordingly the applications for refund is well within time. But, however, as regards the reversal, it could be gathered from the records, that the adjudicating officer had no chance of verifying the veracity of the appellant’s claim vis-à-vis ST-3 Returns in the subsequent period wherein the said reversal was claimed to have been m....... + More
- 2021 (10) TMI 532 - CESTAT BANGALORE
Refund of service tax paid - services provided to Military Engineering Services (MES), which were exempted from payment of service tax vide N/N. 25/2012-ST dated 20/06/2012 as amended by N/N. 09/2016-ST dated 01/03/2016 - denial of refund on the ground of unjust enrichment - HELD THAT:- This Bench on an earlier occasion, in an almost identical situation, in the case of SN ATIWADKAR VERSUS COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, BELGAUM [2019 (5) TMI 661 - CESTAT BANGALORE] where it was held that the appellant is claiming the refund as a representative of the MES and not on his own account and therefore the principle of unjust enrichment under the provisions of Section 11B of the Central Excise Act is not applicable to the present case. The denial of refund cannot be sustained and hence, the impugned order deserves to be set aside - Appeal allowed - decided in favor of appellant.
- 2021 (10) TMI 531 - CESTAT CHENNAI
Claim of Refund - Post GST, on demand, appellant paid service tax under reverse charge basis and claim refund as the same is eligible as Input Tax Credit under the erstwhile law - denial of credit on the ground that the payment made by the appellant is consequent to an assessment/adjudication proceeding and therefore, when recovered as an arrears of tax, the appellant is not admissible for the input tax credit - transitional provisions under GST for claim of refund - HELD THAT:- It is not in dispute that the appellants have been called upon to pay service tax under reverse charge mechanism. During the process of audit it was noticed that they have made certain foreign remittances and that they are liable to pay service tax for the input services received from their parent company. Consequently, they are eligible for credit. However, the s....... + More
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