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Service Tax - Case Laws
Showing 1 to 20 of 2090 Records
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2013 (12) TMI 1742
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... ... ..... o demand service tax. We find that the show cause notice in this case was issued on 11.11.2005, demanding service tax for the period 2001-02 to 2003-04, The Appellant submits that the entire demand is barred by limitation. Accordingly, we hold that the demands confirmed in the impugned order by invoking the extended period is not sustainable on the ground of limitation. The Appellant is liable to pay service tax, if any, along with interest, for the normal period of limitation. As suppression with intent to evade payment of tax has not been established, no penalty imposable on the Appellant. 8. In view of the above discussion, we hold that the demands confirmed in the impugned order by invoking the extended period is not sustainable. The Appellant is liable to pay service tax, if any, along with interest, for the normal period of limitation. No penalty imposable on the Appellant. The appeal is disposed of on the above terms. (Order pronounced in the open court on 19.12.2023.)
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2013 (12) TMI 1692
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... ... ..... similar revision in respect of assessee for the assessment year 2009-10 has already been dismissed. This revision pertains to the assessment year 1010-11. In this assessment year tax liability was created against the assessee for the reason that it had purchased goods from an unregistered dealer. The tribunal by the impugned order dated 22.3.2013 has returned a categorical finding that the selling dealer was duly registered at the relevant time and that all sales were made against the tax invoice and the payment was made through bank. In view of the above, as the goods purchased by the assessee were all tax paid, there was no question of any liability of the entry tax. The revision has no merit and is dismissed.
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2013 (12) TMI 1663
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... ... ..... f Cenvat credit, it cannot be said that it is a case of evasion of duty. In the ST3 returns filed by the assessee, it could be determined as to whether the appellant is paying more than 20 or not. Moreover, it has to be taken note that the appellant was paying service tax under the category of storage and warehousing service even though the export cargo was lying with them beyond 7 days. In this regard, the Commissioner himself has taken a view that this was basically a technical error. There is no appeal filed by Revenue against this observation. Therefore, it is to be treated as technical error. In these circumstances, only for utilization of more than 20 of Cenvat credit, nominal penalty would be appropriate in view of the fact that the Commissioner himself accepted it as technical error. Accordingly, the penalty imposed on the appellant is reduced to ₹ 10,000/- (Rupees Ten thousand only). The appeal is decided in above terms. (Pronounced and dictated in open court)
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2013 (12) TMI 1640
CENVAT credit - various input services - Place of removal - Held that: - the credit taken up to the stage where goods have reached from the place of removal would be admissible if the same can be related to business of manufacture - in respect of exports place of removal would be port.
Even though the definition was amended on 1-4-2008 and words 'from the place of removal' in the definition and definition of input services were replaced by 'up to the place of removal', once we take a view that the port has to be treated as place of removal in respect of exports, the services utilized by the appellant would be covered even after the amendment of the definition. Moreover by the very words used for in respect of different services would show that they have nexus to the goods manufactured and exported and therefore it cannot be said that they have nothing to do with the business of manufacture.
Appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1639
Recovery of service tax due and payable by the service provider M/s. Ashish Enterprises - section 87 of FA - Held that:- Considering the provision of Section 87 of the Act when any amount payable by a person to the credit of the Central Government is not paid, the Central Excise Officer shall proceed to recover the amount by one or more of the modes mentioned in Section 87 of the Act and as per Section 87(b)(i) of the Act, the Central Excise Officer may, by notice in writing, require any other person from whom money is due or may become due to such person, or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government either forthwith upon the money becoming due or being held or at or within the time specified in the notice, not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount.
Thus, there can be a recovery of the amount due and payable by the service provider from the petitioner, out of the amount which is due and payable by the petitioner to the service provider and which is held by the petitioner - Therefore, when an amount of more than ₹ 2 crores is due and payable by the petitioner to the service provider, which is held by the petitioner to be paid to the service provider, out of which the petitioner is directed to make payment of ₹ 38,27,023/ towards the Service Tax due and payable by the service provider, it cannot be said that the impugned notice/communication is in anyway without jurisdiction and/or without authority under the law. The impugned demand is absolutely in consonance with Section 87 of the Act.
It cannot be said that the impugned demand is illegal and/or arbitrary and/or without jurisdiction and authority under the law - appeal dismissed.
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2013 (12) TMI 1638
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... ... ..... Trust (Order No. A/1158/13/CSTB/C-I dated 24/05/2013 and Bhogavati Janseva Trust (Order No. A/1274-1279/13/CSTB/C-I dated 12/06/2013 have held that the services of sugarcane harvesting and transportation is not classifiable under Manpower Supply Service and is more appropriately covered under Business Auxiliary Service. In view of the above decisions of the Tribunal, the impugned orders are not sustainable in law and the appeals be allowed. 4. The learned Additional Commissioner (AR) appearing for the Revenue reiterates the findings of the adjudicating authority. 5. Inasmuch as the issue has been decided against the Revenue and in favour of the assessee in the case laws cited supra, following the same, in the present case also, we hold that the impugned demands are not sustainable in law and accordingly we set aside the same and allow the appeals with consequential relief, if any, in accordance with law. 6. The appeals are allowed and stay applications are also disposed of.
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2013 (12) TMI 1635
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... ... ..... h Court. A contrary view is reflected in the judgment of the Karnataka High Court in Commissioner of Central Excise, Bangalore-III v. Stanzen Toyotetsu India (P) Ltd. 2011 (23) S.T.R. 444 (Kar.) where several services like canteen, rent-a-cab/transportation, insurance and health insurance policy for employees was held to fall within “input service”, provided in relation to the manufacturing activity of the assessee. 5. There is thus apparent a conflict of opinion on application of the provisions of Rule 2(1) of the 2004 Rules in the peculiar factual settings. There is however no apparent conflict in the interpretation of Rule 2(1) of the 2004 Rules. 6. Since we discern a strong prima facie case in favour of the petitioner, we waive the pre-deposit requirement and stay further proceedings for realization of the assessed liability, pending disposal of the appeals. Stay applications are accordingly disposed of. (Order dictated and pronounced in open Court)
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2013 (12) TMI 1630
Whether the respondent/assessee is liable to pay service tax in the form of cash and also as to whether the respondent is entitled to utilise Cenvat Credit for paying service tax?
Held that: - the respondent/assessee is not liable to pay service tax in the form of cash and also entitled to utilise Cenvat credit for the purpose of paying tax - reliance placed in the case of Commissioner of Service Tax Versus Hero Honda Motors Ltd. [2012 (12) TMI 734 - DELHI HIGH COURT], where it was held that there is no legal bar to the utilisation of Cenvat credit for the purpose of payment of service tax on the GTA services.
Appeal dismissed - decided against Revenue.
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2013 (12) TMI 1628
100% EOU - CENVAT credit - input services - renting of immovable property service - credit has been denied only on the ground that services were not received in the manufacturing premises and the premises where it has been received was not registered under Service Tax statute - Held that:- There is no such requirement as far as the input services are concerned that the same should have been received in the manufacturing premises and the premises where received should be registered one - appellant has made out a very strong case for eligibility of the credit.
The matter does not require any further consideration since the basis on which credit was denied is not at all sustainable - appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1627
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... ... ..... t has complied with all such condition, therefore they are entitled for refund claim. 4. On the other hand, ld. AR reiterates the impugned order. 5. Considered the submission made by both sides. Admittedly, in this case Service Tax has been paid, service has been utilised. It is not the case that these services do not qualify under Notification 41/2007. Only reason for denial is that there is no correlation of service provided to them to the export goods. The Board Circular dated 19-1-2010 has clarified wherein they have made clear that it is to be seen whether Service Tax has been paid or not, whether service has been used or not, whether service falls within the Notification or not. These facts are not in dispute. Therefore impugned order is not sustainable. Accordingly, same is set aside. Appeals are allowed with consequential relief. The Adjudicating Authority is directed to comply with this order within 30 days of the receipt of this order. (Dictated in Court)
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2013 (12) TMI 1626
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... ... ..... notification. In any case, he submits that the Commissioner(Appeals) should have decided the issue instead of remanding the matter as per the decision of the Hon’ble Supreme Court in the case of MIL India Ltd. Vs. CCE 2007(210) ELT 188 (SC) . Since the issue involved is interpretation of law, the Commissioner(Appeals) should have decided the issue on merits and not remanded the case. Accordingly, the appeal is allowed and the Commissioner(Appeals) is directed to decide the issue on merits and not resort to remanding the matter to the original adjudicating authority. (Order dictated and pronounced in open court)
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2013 (12) TMI 1625
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... ... ..... ll the documents and they will be able to produce the same given an opportunity. 9. Having regard to the prima facie view about the liability, amount involved in such cases, interest liability thereon from the date on which liability arose till now and the amount of Cenvat credit held as inadmissible and having regard to the fact that in certain cases, the issue is debatable and therefore final decision can be taken only at the time of final hearing, we consider that if the appellants deposit an amount of ₹ 2,60,00,000/- (Rupees two crores sixty lakhs only) within six weeks from the date of receipt of the order and report compliance on 19-5-2014 such deposit would be sufficient for the purpose of hearing the appeal. Accordingly subject to pre-deposit of the above amount, there shall be waiver of pre-deposit of balance dues and stay against recovery during the pendency of appeal. (Operative portion of the order pronounced in open Court on conclusion of the hearing)
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2013 (12) TMI 1624
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... ... ..... respect of the goods under exportation. The requirement to be satisfied by the exporter is that the receipt issued by the courier agency specifies the IEC Code of the exporter, export invoice number, nature of courier, destination of courier including the name and address of the recipient of the courier and the exporter produces the evidence to link the use of courier for export purposes. In the present case, it is an admitted position that this condition has not been satisfied by the appellant. Therefore, the rejection of refund claim on this ground is sustainable in law. 6. In view of the above, I hold that the appellant is eligible only for refund of an amount of ₹ 16,458.33 in respect of technical testing and analysis service and the appellant is not eligible for the refund of ₹ 1,64,364.14 on account of their claim for drawback and ₹ 36,802.14 in respect of courier service. Thus, the appeal is partly allowed in the above terms. (Dictated in Court)
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2013 (12) TMI 1623
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... ... ..... is a company located in Korea and have no branch or any establishment in India. In respect of a taxable service provided by an offshore service provider not having any branch office or establishment in India to a person in India, Service Tax could be charged from the service recipient in India w.e.f. 18-4-2006. But neither during the period prior to 18-4-2006 or during period w.e.f. 18-4-2006, there was any provision to charge Service Tax from an offshore service provider in respect of taxable service provided by him to a person in India. Therefore, irrespective of whether the service provided by the appellant to M/s. Samcor Glass Ltd. was taxable or not, no Service Tax can be charged from them in view of the judgments of the Tribunal in the cases of Philcorp Pte. Ltd. (supra) and Mitsui & Co. Ltd. (supra). The impugned order, therefore, is not sustainable. The same is set aside. The appeal is allowed. (Operative portion of the order already pronounced in the open Court)
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2013 (12) TMI 1622
Rejection of Refund claimed by service recipient - ground alleged for rejection of refund claim is that refund can be claimed only by the person, who has paid the service tax and the appellant who is the service recipient is not eligible for claiming of refund - GTA Service - Held that:- This ground is patently absurd and irrational - Notification No. 41/2007 which provides exemption through a refund mechanism clearly and unequivocally states that it is the exporter who can refund claim and not the service provider except in a situation where the exporter and the person discharging the tax liability is one and the same - rejection of refund claim is unsustainable in law.
Refund claim - service tax on transportation charges incurred from the port/container yard to the factory in respect of empty containers - denial on account of nexus - Held that:- The issue is settled in favor of the appellant in the case of Vippy Industries Ltd. v. CCE, Indore [2014 (8) TMI 377 - CESTAT NEW DELHI], where it was held that the appellant would be eligible for refund of service tax on transportation charges incurred from the port/container yard to the factory in respect of empty containers as the said transportation was in connection with the exports undertaken and therefore, there is a nexus between the transportation of empty containers with the export of the goods - refund allowed.
Appeal allowed - decided in favor of appellant.
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2013 (12) TMI 1621
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... ... ..... t is a waste of time going into all the aspects and commenting on the order. In my opinion, the claim made by the assessee that they have maintained separate accounts and Chartered Accountant’s certificate submitted by them have to be accepted in the absence of any contrary evidences produced by the Revenue. Once separate accounts have been maintained, there was no obligation on the assessee to pay the amount and interest as demanded. In any case since the appellant is not contesting the service tax demand and interest thereon, the same is upheld as not contested. As regards penalty, in the facts and circumstance of the case, there is no case whatsoever for imposition of penalty. 6. Even though the matter was listed only for hearing the stay application, the circumstances discussed above compelled me to decide the appeal itself and accordingly, the appeal is allowed with consequential relief, if any, to the appellants. (Order dictated and pronounced in open court)
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2013 (12) TMI 1620
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... ... ..... of third parties including Gangavaram Port Ltd. and BPCL; the proceedings have also not adverted to any lease agreements to support a conclusion that the petitioner had any transferable interest in immovable property including vacant land, which were leased to third parties. 7. In the above circumstances, to conclude as it did, that the petitioner had provided renting of immovable property service, an independent taxable service earlier to 1-7-2010, and a service falling within the ambit of port service after 1-7-2010, is a conclusion that prima facie appears to be an ipsi dixit without any critical examination of relevant facts. 8. For the aforesaid reasons, we are of the considered view that the petitioner has made out a strong prima facie case for grant of relief. We accordingly grant waiver of pre-deposit and stay of proceedings for recovery of the assessed liability. The stay application is accordingly disposed of. (Order dictated and pronounced in open Court)
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2013 (12) TMI 1619
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... ... ..... ctivity undertaken by the appellant is laying of paver blocks. Whether it is rendered to M/s. Thakur Infra-projects Pvt. Ltd. or M/s. Man Projects Ltd. or to the Port authorities, the activity remains the same and, therefore, the service also would remain the same. There cannot be any change in the nature of service depending upon who received the service. Laying of paver blocks, by no stretch of imagination, can be considered as ‘Business Auxiliary Service’ and would form part of construction activity. Since the construction activity undertaken in the port area is excluded from the scope of ‘Commercial Construction Service’, we are prima facie, of the view that the appellant is not liable to discharge service tax liability on the laying of paver blocks in the port area. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal. (Dictated in Court)
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2013 (12) TMI 1618
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... ... ..... invoice was not in the name of the appellant would make them ineligible for the credit. According to Rule 9 of Cenvat Credit Rules, address of the recipient is not one of the essential requirements for allowing credit. Even in the absence of the name of the recipient of the goods credit can be allowed provided the assessee is able to satisfy the officer that goods have been received/used for providing service or manufacture and duty has been paid. In this case admittedly appellants have been able to show that the strips were received by jobworker, were utilized in providing service and excise duty due on the straps has been paid. Under these circumstances, the benefit of Rule 9 has to be given to the appellants treating the same as procedural omission. In view of the above I find that the credit was admissible to the appellant and denial was wrong. Accordingly appeal is allowed with consequential relief if any to the appellants. (Order dictated and pronounced in open court)
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2013 (12) TMI 1617
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... ... ..... s the goods to other dealers/retailers. Thus, the transaction is one of sale of goods and not of rendering any service. Therefore, we find that the appellant has made out a prima facie case in support of their contention that the activity undertaken by them does not attract service tax. In these circumstances, the order of the lower appellate authority directing the appellant to make a pre-deposit of entire service tax along with interest is not sustainable in law. Accordingly, we set aside the same. 4. Inasmuch as the appeal has not been decided on merits by the lower appellate authority, the matter has to go back to the lower appellate authority for consideration of appeal on merits. Accordingly, we remand the matter back to lower appellate authority for consideration of the appeal on merits after giving a reasonable opportunity to the appellant of being heard. 5. Thus, the appeal is allowed by way of remand. Stay petition is also disposed of. (Dictated in Court)
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