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Service Tax - Case Laws

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• 2020 (3) TMI 1156
  
  Club or Association Service - Mutuality of Interest - distinct entities or not - providing various facilities and advantages only to its members and collects amounts from them in the form of subscriptions, tennis fee, billiards fee, games fee, gym fee, building fund, rent for roof garden etc. - relevant period 16.06.2005 to 31.03.2009 - HELD THAT:- There is no doubt that the service has been rendered and amounts have been received for the service from the members - This specific question of law was decided by the Hon’ble High Court of Jharkhand in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT]) and it was held that club is formed on the principle of mutuality and therefore if the club provides services to its members, it is not a service by one legal entity to another and is not liable to service tax. Appeal allowed - decided in favor of appellant.

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• 2020 (3) TMI 1101
  
  Valuation - inclusion of warranty claims in assessable value - reverse charge mechanism - Section 66A of FA - Revenue neutrality - extended period of limitation - It was held that When the Overseas Distributor is establishing the network of Authorized Repairers for carrying out the warranty responsibility of the appellant, indeed, this will satisfy ‘customer care services’ provided on behalf of the client contained in Sub-Clause (iii) of the definition of ‘Business Auxiliary Service’, and would be taxable. HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.

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• 2020 (3) TMI 1100
  
  Valuation - Franchise services - Whether bifurcating the amount of weekly gross sales into the payment of royalty (@ 8% thereof) and the payment towards Franchise Advertisement Fund (@ 4.5% thereof) takes the later value out of the ambit what is called as transaction value/the gross value? - It was held that The amount of weekly gross sales @ 4.5% but for franchise advertisement fund is nothing but the part of gross value of the contract for providing the franchise service and, hence, was equally taxable as 8.5% of the said weekly gross sales is taxable. HELD THAT:- There are no reason to interfere with the impugned order(s) passed by the Tribunal - appeal dismissed.

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• 2020 (3) TMI 1099
  
  Refund of service tax - rejection on the ground of time limitation - service tax paid on various activities, which were exempt from service tax in terms of Mega Exemption N/N. 25/2012-ST dated 20/06/2012 - HELD THAT:- Every refund claim arises on account of fact that the same was not required to be paid - Reference can be made to the Hon’ble Madras High Court decision in the case of ASSISTANT COMMISSIONER OF SERVICE TAX, CHENNAI VERSUS M/S NATARAJ AND VENKAT ASSOCIATES [2014 (5) TMI 179 - MADRAS HIGH COURT] laying down that the refund claim beyond the period of limitation provided under law is totally barred by limitation. Even the fact that the tax was paid under a mistake of law, cannot be adopted for grant of such refund. There are no justifiable reasons to interfere in the impugned order of Commissioner (Appeals) - appeal dismissed - decided against appellant.

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• 2020 (3) TMI 1098
  
  Club and Association Service - Levy of service tax - advance entrance/enrollment fee collected from prospective members - Mutuality of interest - HELD THAT:- The issue herein is squarely covered in favour of the appellant/assessee by Hon’ble Supreme Court in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] and also by the Hon’ble Jharkhand High Court in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT] where it was held that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members’ clubs in the incorporated form. Thus, there being mutuality of interest between the club and its members, there is no transfer of ownership of the service - appeal allowed - decided in favor of appellant.

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• 2020 (3) TMI 1005
  
  Levy of service tax - pilotage charges - whether the appellant is liable to pay service tax on Port Service as per Section 65(105)(zzl) in respect of the services rendered by them in Ravva Port with permission of the Port Authority? - it was held that the appellant was fully liable to pay service tax on the pilotage charges which they received from their customers under the head “Port Services”, under section 65(105)(zzl) of Finance Act, 1994. HELD THAT:- There is no need to interfere with the impugned order passed by the Tribunal - appeal dismissed.

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• 2020 (3) TMI 1004
  
  Maintainability of appeal - appropriate forum - Recovery of service tax - classification of services - Construction of Complex Services or Commercial or Industrial Construction Service - period from April, 2005 to March, 2010 - HELD THAT:- Indeed, whether the services provided by the Respondent were classifiable directly as 'Construction of residential Complexes and Commercial or Industrial Construction Service' or as 'Works Contract Service' was a neat question of law. The case involves the issue of classification and, therefore, in such instance an appeal against the order of the CESTAT would lie in the Supreme Court under Section 35L of the Central Excise Act, 1944, even if there are other questions involved. The present appeal before this Court is not maintainable.

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• 2020 (3) TMI 1003
  
  Clubs or association service - doctrine of mutuality - scope and exclusions from the definition of “club or association” or not - HELD THAT:- The issue decided in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] where it was held that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members’ clubs in the incorporated form. It is evident that the proposed demand in the impugned show cause notice can no longer be sustained - petition allowed - decided in favor of petitioner.

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• 2020 (3) TMI 1002
  
  Maintainability of appeal - time limitation - it is submitted that the order passed by the adjudicating authority dated 27.1.2011 was not served on the appellant - Business Auxiliary services - non-payment of service tax - HELD THAT:- The Commissioner (Appeals) has dismissed the appeal observing that it is time-barred and also noting that the Order-in-Original was received and acknowledged by the appellant on 10.2.2011. However, on perusal of records, we do not find any document to show that the appellant has been served with the copy of the Order-in-Original dated 10.2.2011. Though the Bench directed the department to produce documents to prove that the Order-in-Original has been served to the appellant, they have not been able to do so. The appellant has to be given a chance to contest the case on merits - The impugned order is set aside and the appeal is allowed by way of remand to the Commissioner (Appeals).

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• 2020 (3) TMI 917
  
  Supply of Tangible Goods Services - non-payment of Service Tax - appellant had been collecting Service Tax from its customers since 2008, but had not deposited the same with the Government Exchequer - demand alongwith interest and penalty - extended period of limitation - HELD THAT:- The appeal is admitted on substantial questions of law. Issue notice - List on 28.05.2020 in the category ‘After Notice Miscellaneous Matters’ for final disposal.

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• 2020 (3) TMI 916
  
  Nature of activity - service or sale - appellant has made payment towards tanker hire charge to various foreign suppliers in foreign currency for hiring ISO tanker which was mostly used for export purpose - case of Department is that ISO tank owned in such a case does not transfer the right of possession and no VAT/Sales Tax has been paid, it is liable to classify under “supply of tangible goods service’ - reverse charge mechanism - HELD THAT:- The appellant have referred to a contract under which ISO tank was hired by them on lease from foreign supplier. The Adjudicating Authority as well as the appellate authority has held that the renting of ISO tank falls under the category of “supply of tangible goods service” only on the reasoning that there is no transfer of right of possession and effective control in respe....... + More

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• 2020 (3) TMI 915
  
  Liability of service tax of sub-contractor - appellant’s contention was that the main contractor has discharged the entire service tax liability on the full amount including the service tax liable to be paid by the appellant as sub-contractor - HELD THAT:- Admittedly, prior to the declaration of law by the Larger Bench of the Tribunal, in favour of the Revenue, there were catena of judgements laying down that if the main contractor has paid the entire service tax liability in respect of a particular contract, the demand against the sub-contractor would not survive. The lower authorities have expressed their doubt about the payment of the entire service tax by the principal contractor, which fact requires verification and examination by the lower authorities. As such, for the limited purpose of verifying the fact of payment of entire service tax by the main contractor, the matter is remanded to the lower authorities for doing the needful. Appeal allowed by way of remand.

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• 2020 (3) TMI 914
  
  Non-payment of service tax - Water supply / sale to customers in the port - Renting of immovable property - Transport of goods by road - demand of service tax alongwith interest and penalties - excessive adjustment of service tax - extended period of limitation. Water supply / sale to customers in the port - HELD THAT:- It is evident from the records of the case as well as the submissions of the Ld. Counsel for the appellant that they had purchased water and sold it to ships at a higher price. Thus, this is in our considered view, a case of purchase and sale of goods. Sale of goods is a taxable event for Sales Tax or VAT levied by the State Government. It appears from the records, that the appellant had reported the sales in their VAT returns to the State Government claiming an exemption from VAT available on sale of water. The availabili....... + More

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• 2020 (3) TMI 913
  
  Business Auxiliary Services - promotion or marketing of goods produced or provided by or belonging to the client - transfer of right to use - demand of interest and penalties - extended period of limitation - HELD THAT:- By stating that the goods namely concentrate was transferred for use by M/s Coca Cola India Pvt Ltd to the Appellant for consideration, a fact not in dispute, the sale of the goods in term of Central Excise Act, 1944 has occurred. The imposition of restrictions or conditions in respect of the usage and consumption of the concentrate, by the seller cannot alter that position. Hence there are no merit in the submission of the Authorized Representative that this transaction was not a truncation of sale but only “transfer to use”. In any case if the arguments advanced by the Authorized Representative, were to be a....... + More

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• 2020 (3) TMI 912
  
  Refund of service tax - tax paid under protest - Club and Association service - rejection of claim on the ground that the appellant has not been able to prove that the burden of tax has not been passed on to another - HELD THAT:- The issue as to whether “Club” or “Association” Services is subject to levy of service tax is decided by the Hon’ble Apex Court in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] in favour of the assessee. The Commissioner (Appeals) has observed that the issue whether the refund claim is hit by the bar of unjust enrichment is too premature to be considered. However, he has proceeded to reject the refund claim - the appellant has to ....... + More

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• 2020 (3) TMI 852
  
  Refund of service tax - time limitation - principles of unjust enrichment - refund denied on the ground that appellant did not produce evidence or documentary proof that the appellant has not passed the incidence of duty to its customers - Section 11B of the Central Excise Act, 1944 - HELD THAT:- Larger Bench of the Tribunal in the case of M/S VEER OVERSEAS LTD. VERSUS CCE, PANCHKULA [2018 (4) TMI 910 - CESTAT CHANDIGARH] examined the decisions of various Courts where Section 11B has been held to be not applicable to refund of any amount made under any mistake of law. In the present case, the refund claim filed by the appellant would be governed by the provisions of limitation prescribed under Section 11B of Central Excise Act, 1944. Since the refund was filed after expiry of limitation the same cannot be entertained. Unjust enrichment - ....... + More

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• 2020 (3) TMI 851
  
  Maintainability of appeal - incorporation of additional grounds in the appeal - Rule 10 of CESTAT Procedure Rules,1982 - Refund of service tax - service tax paid on transportation of iron ore, from the mining site to the appellant’s crusher plant, located 6 km away from mining area - reverse charge mechanism - Section 11B of the Central Excise Act,1944 as applicable to service tax vide Section 83 of the Finance Act,1994 - HELD THAT:- In view of the specific provision under Rule 10 of the CESTAT Procedure Rules, we are inclined to entertain the misc. applications, seeking incorporation of additional grounds. The misc. applications are allowed, which have substantial bearing on the main appeals. On going through the relevant documents, such as, the contract between the appellant and the raising contractors, the monthly bills raised by....... + More

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• 2020 (3) TMI 850
  
  Levy of Service Tax - Cleaning Activity - removal of fly ash from the pond - HELD THAT:- The cleaning activity has been defined under Section 65(24b) of the Finance Act. “Cleaning activity” means cleaning, including specialized cleaning services such as disinfecting, exterminating or sterilizing of objects or premises, of- (I) commercial or industrial buildings and premises thereof: or (ii) factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, But does not include such services in relation to agriculture, horticulture, animal husbandary or dairying; - thus, cleaning service has been also defined in the Board’s Notification F. No. B1/6/2005-TRU dated 27/07/2005. Also, in the present case, the activity of excavation and transportation of fly ash from the pond, for c....... + More

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• 2020 (3) TMI 849
  
  Applicability of interest to CENVAT credit recovery - Availed versus Taken and / or utilization of credit - Recovery of CENVAT credit wrongly taken or erroneously refunded - rule 14 of CENVAT Credit Rules, 2004 - HELD THAT:- From a perusal of rule 14 of CENVAT Credit Rules, 2004 and, in particular, of the disjunctive collation of ‘taken’, ‘utilized’ and ‘erroneously refunded’ with the expression ‘wrongly’ qualifying, not three but only two, it would appear that the assumption of credit and a refund of credit, if wrong, would have to pay the price in the form of ‘interest.’ However, it is unusual for ‘utilization’ to be qualified with ‘ineligibility’ on its own as ‘utilization’ is solely for the purpose of discharge of tax/duty liability which, ....... + More

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• 2020 (3) TMI 848
  
  Interest on delayed refund - relevant time for calculation of interest - appellant have challenged that portion of the order to which the interest was not granted i.e. from date of deposit till the date of the order - HELD THAT:- The refund in case of pre-deposit governed by Section 35FF according to which the interest is payable from three months of the order by which the demand was set-aside. Therefore, there is no question of interest from the date of deposit. A similar issue has been considered by the Division Bench in the case of M/S. PETRONET LNG LIMITED VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [2018 (8) TMI 111 - CESTAT AHMEDABAD] where it was held that in terms of clause (b) of sub-Section (1B) of Section 27, the period of one year shall be computed from the date of Commissioner (Appeal) order. Thus the interest is payable under Section 35FF wherein there is no provision for payment of interest on refund from the date of deposit - appeal dismissed - decided against appellant.

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