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Service Tax - Case Laws
Showing 1 to 20 of 166 Records
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2014 (9) TMI 1234
Condonation of delay of 262 days in filing of the appeal - HELD THAT:- The order dated 30th July, 2013 was admittedly received by the appellant on 04/08/13. The appellant admittedly is a proprietorship concern owned by Shri R.P. Pandhi. It is seen that the appellant took about 70 days time in handing over the case papers to their Consultant Shri Vinod Jain and when there was no response from the Consultant, for about one month, no alternate arrangement by engaging other Counsel was made - The Apex Court in another case of OFFICE OF THE CHIEF POST MASTER GENERAL VERSUS LIVING MEDIA INDIA LTD. [2012 (4) TMI 341 - SUPREME COURT] has held that the law of limitation binds everybody including the Government and refused to condone 427 days delay in filing of the appeal by the Postal Department.
In this case for delay of about three months from 04/08/13 to end of October, 2013 there is absolutely no explanation as to why the appeal was not filed during this period. The conduct of the appellant indicates as if filing of appeal before the Tribunal was the last priority - the delay in filing of appeal is not condonable - Appeal dismissed.
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2014 (9) TMI 1152
Refund claim - rejection on the ground that appellant failed to substantiate the CENVAT credit details and the lower authorities also have taken the view that it is not possible to verify the refund claims - Held that: - At present, there is no statutory requirement or format for maintenance of CENVAT credit account and therefore it becomes necessary for the authority to say what exactly the omission and why he is not able to verify the correctness of the claim. In the absence of any clear cut conclusion that CENVAT credit was availed wrongly or taken wrongly or the claim that it could not be used was not correct, rejection on this ground is not valid and this matter requires reconsideration - appeal allowed by way of remand.
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2014 (9) TMI 1135
100% EOU - Refund claim - whether the services are taxable in India or the same are export of service outside India in terms of Service Rules, 2005 and for this reason are not taxable in India? - Held that: - Even though the services have been performed in India, the service being business auxiliary service, the same are in respect of the business of the principal located abroad - services are covered by clause (iii) of Rule 3(1) of Export Services Rules 2005.
CVD taken on inputs - Held that: - a 100% EOU need not have to pay the CVD at all - CVD taken on inputs is not eligible.
The impugned orders are set aside and the matters are remanded to the original adjudicating authority to consider the refund claims - appeal allowed by way of remand.
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2014 (9) TMI 1121
Vires of Rule 5A of the Service Tax Rules, 1994 - the notice of the petitioner has been drawn to Rule 5A of the said Service Tax Rules, 1994 by quoting the provisions of Rule 5A(2) thereof - Held that: - When the Rule does not survive, there is no question of any notice issued thereunder having any validity - the present petition would also have to be allowed inasmuch as the notice, which is impugned before us, has been issued under Rule 5A(2) - petition allowed - decided in favor of petitioner.
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2014 (9) TMI 1075
Refund of amount deposited under Reverse charge mechanism wrongly on export of services - nature of deposit - Held that: - I hold that as no tax was legally payable, the amount paid is in the nature of deposit. The Hon’ble Kerala High Court in the case of KVR Constructions [2012 (7) TMI 22 - KARNATAKA HIGH COURT] have held, where Service Tax was mistakenly paid on construction service, department not disputing that it was not payable due to exemption notification, and that it was not passed on, the department did not have authority to collect. Mere payment of amount could not authorize the Department to regularize/validate and retain it. It was further held that refund could not be rejected on ground of limitation under Section 11B of Central Excise Act. In the facts herein, the ruling as aforementioned is squarely applicable. The appeal is allowed and the impugned order is set aside. The adjudicating authority is directed to disburse the refund within 30 days - appeal allowed - decided in favor of assessee.
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2014 (9) TMI 1058
Liability of service tax - Maintainability of appeal before the High Court - whether the two units of the assessee i.e. SEZ unit and DTA units are one or separate legal entity - SEZ units to carry out work in-house for the units located in Domestic Tariff Area (DTA) of L & T Ltd. - Held that:- Since such question has not direct relation with the determination of rate of service tax or value of services, it is well within the bounds of jurisdiction of this court to adjudicate the matter. The decision of this court in the case of Ruchi Soya Industries Limited v. Union of India [2014 (12) TMI 310 - GUJARAT HIGH COURT] would, therefore, be squarely applicable to the facts of the present case. The contention that the appeals are not maintainable, therefore, does not merit acceptance.
The first question formulated by the court is accordingly answered in favour of the revenue and against the assessee. It is, accordingly, held that against the impugned order passed by the Appellate Tribunal, appeal would lie before this court under section 35G of the Central Excise Act, 1944.
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2014 (9) TMI 1055
Pre-deposit - Whether the 1/3 of the amount is to be deposited for hearing the appeal or there is a change in circumstances after 01.05.2011 - Coaching classes conducted by the appellants to enable the students studying in intermediate classes to appear for entrance exams - Whether liable to service tax under the category of Commercial Training or Coaching or not - period involved is April 2011 to March 2012 - Held that:- while prima facie, appellant may be liable to tax, question as to what are the components which go into the intermediate course and what are the components of fee that can be attributed to Commercial Training or Coaching requires a very detailed consideration. Therefore even if we hold that the service tax is liable, there would still be dispute about valuation and further even the liability itself the appellants have not accepted and are challenging the same. Appellants view is that intermediate course is the main course and Commercial Coaching is incidental. Under these circumstances, we consider that if the appellant deposits an amount of ₹ 6 crores within 8 weeks and report compliance, that would be sufficient for hearing the appeal. Accordingly the appellant is directed to deposit an amount of ₹ 6 crores (Rupees Six Crores only) and report compliance on 16.12.2014. - Requirement of pre-deposit of balance dues is waived and stay against recovery is granted.
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2014 (9) TMI 1044
Leviability of Service tax and interest - Construction of residential complexes for the period April 2009 to December 2012 - Held that:- the issue is clarified by the Board vide Circular 151/2/2012-S.T., dated 10-2-2012, which makes it clear that even in the cases where builder/developer receives consideration for the construction service provided by him from land owner in the form of land/development rights, the service would not be taxable for the period prior to 1-7-2010. Therefore, here even if there is any agreement for sale of UDS of land prior to agreement for sale of flat, the activity for the period prior to 1-7-2010 would not be taxable in terms of Circular dated 10-2-2012. The aforesaid Circulars, clarifications in Budget Instructions. Notifications, Judicial pronouncements overwhelmingly hold that the construction of residential complexes undertaken prior to 1-7-2010 is not liable for Service Tax. Therefore, the liability of the applicant requires to be decided only for the period commencing from 1-7-2010 onwards and not earlier to that results in Service Tax demanded prior to 1-7-2010 under ‘Construction of Residential Complex Service’ is not payable.
As the applicant has made full and true disclosure, accordingly after allowing the benefit in terms of Board’s clarifications in respect of services rendered prior to 1-7-2010 of ‘Construction of Residential Complex Services’ and considering value after 1-7-2010 as cum-tax value for computation of Service Tax as communicated by Revenue, Service Tax liability works out to ₹ 88,45,406/-. As such the Bench settles the Service Tax liability at ₹ 88,45,406/-. The applicant is eligible for refund of ₹ 1,40,912/- which should be dealt with in accordance with law. The Jurisdictional Commissioner would work out the interest liability and communicate to the applicant.
Imposition of penalty - Non-payment of Service Tax on the various services rendered during the period April 2009 to December 2012 - Held that:- out of the demand, the major portion of the demand pertains to ‘Construction of residential complex service’ in respect of which the applicant admitted and paid Service Tax on the services rendered after 1-7-2010. The applicant had collected Service and had not paid the same on the services rendered by him. For the period prior to 1-7-2010, due to lack of clarity on the taxability of ‘Construction of Residential Complex service’, the applicant did not pay Service Tax. Also the applicant had admitted some amount of Service Tax liability which was not part of the SCN demand. For the Act of non-payment of Service Tax, the applicant is liable for penalty. However considering the co-operation, full and true disclosure the partial immunity from penalty to the applicant is granted.
Prosecution - Section 32K of Central Excise Act, 1944 - Held that:- the applicant is granted immunity from prosecution under Section 32K of Central Excise Act, 1944, as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. - Matter disposed of
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2014 (9) TMI 1036
Refund claim - Admissibility, if Cenvat credit not admissible as output service not taxable - Held that: Relying on paragraph 6.12 of the Interim Order Nos. 79 to 152/2014 dated 18.9.2014 in case of M/s Apotex & Others 2015 (3) TMI 346 - CESTAT BANGALORE, the refund claim is admissible.
Refund claim - Barred by limitation under Section 11B of Central Excise Act 1944 - Held that: Limitation is considered as per paragraph 6.15 of the Interim Order Nos. 79 to 152/2014 dated 18.9.2014 in case of M/s Apotex & Others 2015 (3) TMI 346 - CESTAT BANGALORE, and paragraph 6.16 on method of calculating relevant date. The claim is within the normal period.Therefore, as regards nexus, the same has to be considered in accordance with the Interim Order (supra). - Decided in favour of appellant
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2014 (9) TMI 1034
Cenvat Credit - duty paying documents - address mentioned on the Invoice was of different premises of the assessee - Held that:- as there was no lapse in payment of duty or tax and filing Service Tax return by the appellant the other premises/units also belong to the appellant from where the output services are rendered. The input services to which the invoices in dispute relate are utilized in rendering output taxable service. The appellant have made payment of input service alongwith the Service Tax charged by the service provider. The appellant have maintained proper records in normal course of business, and have disclosed the credit taken regularly in periodical returns. Thus I hold that the appellant is entitled to avail CENVAT credit, disputed by Revenue. - Decided in favor of assessee.
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2014 (9) TMI 989
Denial of CENVAT Credit - Imposition of penalty - Delayed payment of service tax - Held that:- Regarding waiver of penalty on the deposit of Service Tax before the issue of show cause notice, it is observed that appellants have clearly admitted in their submissions that amount was paid as pointed out by the audit. This fact itself does not prove their bona fide that they have deposited the amount before the issue of show cause notice suo motu. In view of these circumstances, I agree with the findings recorded by the Commissioner (Appeals) that penalties are rightly leviable on the appellants.
Regarding the second issue of availment of Cenvat credit on furniture items, I have gone through the Order-in-Original passed by the Commissioner (Appeals) as recorded in Para 7 of his order wherein he has elaborately analyzed the issue and rightly concluded that table, chair, stool, cot, etc., were of the same genre and were in the nature of office furniture and were not eligible for availment of Cenvat credit. - No substance in the ground taken by the appellants - Decided against assessee.
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2014 (9) TMI 977
Penalty u/s 76, 77 and 78 - Site Formation and Clearance, Excavation and Earth Moving and Demolition Services - Held that:- As the appellant has admitted the Service Tax liability and the same is not in dispute, therefore, we are considering only the issue of penalties imposed on the appellant under Sections 76, 77 and 78 of the Finance Act, 1994. We find the C.B.E. & C. vide Circular dated 27-7-2005 clearly clarifies that the activity undertaken by the appellant falls under Site Formation and Clearance, Excavation and Earth Moving and Demolition Services. The appellant has also not approached the department for clarification whether their activity falls under taxable service or not. In the circumstance, we hold that the appellant are not entitled for the benefit of Section 80 of the Finance Act, 1994.
As the appellant has paid the entire amount of Service Tax along with interest, therefore, penalty is reduced to 25% of the Service Tax confirmed under Section 78 of the Finance Act against them. The appellant is directed to pay the reduced amount of penalty within a period of 30 days of the communication of this order failing which the appellant shall be liable to pay 100% of the Service Tax payable. Penalty under Section 77 is confirmed. - Decided against assessee.
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2014 (9) TMI 976
Denial of refund claim - Management Consultancy Service - Unjust enrichment - Held that:- Certificate issued by the CA does not reflect true and correct picture on basis of which documents Commissioner had come to the conclusion that the bar of unjust enrichment has been passed. We do not agree with the contention of the learned Counsel that the provisions of Section 11B of the Central Excise Act, 1944 are not applicable to the facts of this case as it is a pre-deposit, as they have paid the Service Tax under the Head of Management Consultancy Service and thereafter sought change of classification. As Service Tax has been paid by the respondent during the course of investigation therefore, test of bar of unjust enrichment is required to be passed on by the respondent. - Matter remanded back - Decided in favour of Revenue.
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2014 (9) TMI 972
Scope of the term ‘client’ in view of the Circular B11/1/2000-TRU, dated 9-7-2001 - Learned counsel for the appellant submits that in spite of his best efforts, he could not get in touch with the appellant and reports no instructions. - Appeal Against the decision [2008 (9) TMI 140 - CESTAT, BANGALORE] - Held that:- we close the appeal, on reporting no instructions. It goes without saying that as and when the appellant feels that the cause of action in the appeal survives, it can take up appropriate steps to get the matter resurrected.
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2014 (9) TMI 971
Waiver of pre deposit - Site formation and clearances, excavation and earth moving or the demolition service - Held that:- The Service Tax demand is in respect of the service provided by the appellant in terms of three contracts entered into by them with M/s. Diamond Cement. The first contract of the appellant with M/s. Diamond Cement is for transportation of limestone from the screening plant at the mines to the factory premises of M/s. Diamond Cement. The limestone was to be loaded and transported by the appellant by using their own dump trucks and allied machinery and for these services, the appellant were to be paid @ ₹ 53.55 per M.T. of limestone delivered and besides this were also to be provided the diesel free of charge @ ₹ 0.9 per litre per M.T. of limestone delivered. - Prima facie, Activity of the appellant is GTA service and is not at all covered by the service of site formation and clearance covered under Section 65(105)(zzza) read with Section 65(97a) and therefore the Service Tax demand on the amount charged by the appellant for this service would not be sustainable.
Activity of the appellant is basically giving various machinery and equipment to M/s. Diamond Cement on hire basis which is to be used by them for overburden removal and mining activities and, as such, this activity cannot be said to be the activity of site formation and clearance or mining. The supply of machinery and equipment on hire basis would be supply of tangible goods service which became taxable under Section 65(105)(zzzzj) which has been introduced in the Finance Act, 1994 w.e.f. 16-5-2008. In any case, the longer limitation period of 5 years under proviso to Section 73(1) of Finance Act, 1994 is not invokable as the dispute in this case is of interpretation. - appellant have strong prima facie case in their favour and, hence, the requirement of pre-deposit of the Service Tax demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed. - Stay granted.
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2014 (9) TMI 968
Recover of service tax from service receiver - Held that:- Admittedly, the properties in question do not fall within the two exemptions provided under Section 65(90a) of the Act. Explanation 2 under Section 65(90a) makes it more clear that renting of immovable property includes allowing or permitting the use of space in an immovable property, irrespective of the transfer of possession or control of the said immovable property. The duty performed by the first respondent Municipality would clearly fall within the ambit of the provisions referred above and therefore they have been remitting Service Tax to the Department. Further, Section 66D(a)(iv) of the Act deals with negative list of services and Clause (a) provides services by Government or a local authority excluding the following services to the extent they are not covered elsewhere and the relevant clause would be Clause (iv) namely support services, other than services covered under Clauses (i) to (iii), provided to business entities. Therefore, the Municipality is bound to pay Service Tax on the nature of transaction, which they have entered into with the petitioner. - Decision in the case of [2015 (3) TMI 391 - MADRAS HIGH COURT] followed - petitioner is not the service provider and he has not challenged the power of the second respondent to levy and demand Service Tax and the first respondent Municipality being the service provider is bound to pay the Service Tax, which has been remitted. In the light of the above findings, no grounds have been made out by the petitioner to interfere with the impugned proceedings. - Decided against Assessee.
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2014 (9) TMI 967
Waiver of pre deposit - Whether, in the facts of the case and in the interest of justice, the appellant is entitled to an opportunity to prosecute the application for waiver of deposit and also the appeal filed before the Tribunal - Held that:- If a party remains absent before a Tribunal or a Court of Law, the Court cannot be found at fault in dismissing the proceedings filed by the party in the absence of prosecution. The Tribunal waited for the appellant on five dates, of hearing, but the appellant failed to remain present. We, therefore, do not find any fault in the order of the Tribunal rejecting the application filed by the appellant in default. - Impugned order ot be set aside on the ground that appellant deposits 25% of the amount payable by the appellant before the Tribunal within a period of four weeks - Decided conditionally in favour of assessee.
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2014 (9) TMI 882
Valuation - inclusion of reimbursement of expenses - whether the ocean freight, currency adjustment charges, bunkering charges, advance manifest charges collected by the appellant on behalf of the shipping lines can be subjected to levy of service tax - Held that:- most of these charges form part of the transaction value in respect of customs matters and therefore, the question of levy of service tax on a customs transaction would not arise at all. If the appellants have collected these charges and remitted the same to the shipping lines, the whole amount received and transmitted cannot be said to be a consideration for the services rendered. What can be levied to service tax is the service rendered by the appellant either as a steamer agent or BAS in respect of collection of freight and other charges and only on the consideration received for the services rendered, service tax can be levied. In this view of the matter, the impugned order is clearly not sustainable in law and the matter has to go back to the adjudicating authority for denovo consideration - Matter remanded back - Decided in favour of assessee.
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2014 (9) TMI 881
Inclusion of cost of material used during the provision of services - Repair and maintenance service - whether the cost of goods supplied while rendering a service can be subjected to levy of service tax - Held that:- issue has been settled by the larger bench of the Tribunal in the case of Hindustan Aeronautics Ltd. (2013 (11) TMI 1410 - CESTAT CHENNAI (LB)) which has considered all the relevant decisions and has come to the conclusion that there cannot be a service tax levy on supply of goods. Respectfully following the said decision in the present case also, we are of the prima facie view that the cost of goods supplied while rendering a repair service cannot be subjected to levy of service tax. Thus the appellant has made out a case for grant of stay - Stay granted.
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2014 (9) TMI 880
Discrepancy in ST-3 returns and balance sheet - Manpower Supply Service - payment made in foreign exchange to the foreign service providers - International Financial Corporation is not notified as international agency to which rendering of service is exempt from service tax. - Held that:- regarding services provided to SEZ units, no service tax is payable on services provided to SEZ units - stay granted on this issue.
On the issue of demand due to difference in ST-3 return, the contention of the appellant is correct inasmuch as the demand has been confirmed only on the basis of the difference found between the figures in their ST-3 returns and their balance sheet without mentioning for which taxable service the demand is confirmed. - stay granted on this issue.
Implementation of the development programme aimed at training rural BPL youths - Held that:- Aim of the said skill development programme is training, skill development and capacity building of the rural poor to enhance their employability or capacity for self-employment. Indeed, it is similar to what the Govt. run Industrial Training Institutes (ITIs) do. Looking at the definition of Manpower Recruitment Supply or Agency, prima facie appellants cannot fall thereunder and consequently they cannot be held to have provided manpower recruitment and supply service. - stay granted on this ground.
Services provided to International Financial Corporation - international agency or not - held that:- IFC is not listed in the list of International bodies eligible for the exemption availed of by the appellants. The appellant's contention that IBRD and IFC are both constituents of World Bank and as IBRD is mentioned as one of the eligible organisations for such exemption, the same should be made available to IFC also even if IFC is not so mentioned, is totally untenable and mis-conceived. - prima facie case is against the assessee - stay granted partly.
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