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Service Tax - Case Laws
Showing 1 to 20 of 1829 Records
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2016 (12) TMI 1892
CENVAT Credit of service tax - services not being used in the factory - power plant in the process of generating power has also generated fly ash - HELD THAT:- When the power generated in the power plant was recognized and the process generating fly ash was not ruled out by Revenue, removal of such effluents/waste incurring service tax cannot be treated to be alien to the process. Having nexus to the manufacture, appeal is allowed.
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2016 (12) TMI 1844
Maintainability of petition - HELD THAT:- Considering the nature of the question raised in the petition, both the sides agree that the petition is required to be disposed of finally at the stage of admission. The respondents seek time of three weeks to file replies.
Stand over to 9th January, 2017.
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2016 (12) TMI 1810
CENVAT Credit - input services - C & F Agent service was availed to make clearance of final product - Revenue denies credit on the ground that service availed was up to the place of delivery - HELD THAT:- There is no provision in law to deny the credit where the service of C&F agent is availed for clearance of the goods irrespective of destination of delivery. The place from which clearance is to be made and place up to which clearance is to be made not being the stipulation of the law, denial of Cenvat credit is uncalled for.
Appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1784
Refund of service tax - duty paid under protest - rejection on the ground of time limitation - Section 11B of the Central Excise Act, 1944 - petitioners argue that the amounts were not voluntarily paid but rather under protest - HELD THAT:- Section 11B clarifies that the one year period has been prescribed as the time limit for claiming refund in respect of the duty and interest paid on such duty for which refund is claimed. The second proviso states that if the duty and interest is paid under protest, the one year period will not apply. In this case, the Adjudicating Authority went on to hold that since the refund claim was made after the adjudication is complete, it was time barred.
This Court is of the opinion that the facts of the present case clearly point to the petitioner’s claim falling within the second proviso to Section 11B of the Act. Concededly, even during the pendency of the adjudication, the petitioner’s letter indicating deposits were made (in unequivocal terms) under protest. The adjudication order took note of the earlier statement, which was retracted at the beginning of the adjudication proceedings and found that the retraction was genuine -The adjudication order is an exhaustive one and categorically rules that against all transactions which were stated to be taxed could not have fallen within the ambit of Service Tax.
In the present case, the entire proceedings seeking recovery of amounts were without jurisdiction and the amounts, which were collected under ostensible authority of law, could not have been collected because the transactions were not subject to levy at all. In these circumstances, the collection of duties was per se illegal.
The concerned authorities are hereby directed to process the petitioner’s refund claim and ensure that the amounts are remitted to it with applicable interest - petition allowed.
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2016 (12) TMI 1739
Constitutional validity - levy of service tax on person manufacturing alcoholic liquor for human consumption on job work basis – Section 66B of the Finance Act, 1994 read with 65B(40) and section 66D - Notification No. 14/2015/-ST dated 19th May 2015 - Held that:- Issue notice, fixing a returnable date within eight weeks.
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2016 (12) TMI 1733
Time Limitation - the submission of the appellant is that the proceeding initiated by the Service Tax department for recovery of service tax is barred by limitation of time in as much as the period involved is from January to June, 2004; whereas the show cause notice was issued on 28/07/2006, which is beyond the period of limitation prescribed under Section 73 - Held that:- The issue with regard to the limitation aspect is settled by the Tribunal in the case of Jaipur Ex-Servicemen Welfare Cooperative Society Ltd. [2015 (2) TMI 660 - CESTAT NEW DELHI], this decision has analyzed the diverse views prevalent at the relevant time and thereafter has arrived at the conclusion that the extended period of limitation in Section 73 cannot be invoked to demand service tax.
Appeal allowed on the ground of limitation.
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2016 (12) TMI 1729
CENVAT Credit - input services - shifting of establishment - case of Revenue is that just because the input services were availed in the previous premises before March 2013, authorities below should not have disallowed the services availed without considering the use of input service in both the premises - Held that:- It is clear that even though invoices were in the name of the old premises, input services were availed and utilised at both the new and old premises during the transition period from January to March 2013. Ultimately, entire activity was carried out from new premises in March 2013.
The use of input service to provide taxable output service being fulfilled without being contradicted by Revenue, the stationary showing the address of the previous premises shall not debar the appellant to Cenvat credit of service tax paid on the input services used - appeal allowed.
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2016 (12) TMI 1715
CENVAT credit - manpower services availed by job workers - Held that: - though for the purpose of excise law the units are registered separately, the manpower agency service availed by the appellant suffering service tax was attributed to the use thereof in manufacture by unit-2 - credit cannot be denied - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1713
Liability of service tax - activities of chilling the milk collected by the Cooperative Societies on behalf of the Jaipur Dairy - whether such activity amounts to manufacture or would fall under the category of Business Auxiliary Service - Held hat: - Tribunal in the case of Vinayak Industries [2016 (6) TMI 1072 - CESTAT NEW DELHI] held that chilling of milk makes it possible to market/sell it to the consumers located at considerable distances - As such, holding the process as amounting to manufacture, it was held that no service tax levy under the category of “BAS” is chargeable on such process - service tax not levied - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1700
Liability of service tax - sales promotion and product awareness activities - benefit of export of services - Held that: - Admittedly, the appellants are rendering service in terms of agreement with the U.S. Company and receiving consideration from that company in convertible foreign exchange. The promotional activities are being carried out in India. The beneficiary being foreign entity, who makes the payment towards such services to the appellant - the Tribunal in the case of M/s. Microsoft Corporation (I) (P) Ltd. Versus CST. New Delhi [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] considered similar situation and held that the criteria for export of service is fulfilled in such situation and tax liability does not arise - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1699
Refund claim - Held that: - When the main appeal is dismissed then there is no question of refund. Hence, we find no reason to interfere with the impugned order - appeal dismissed.
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2016 (12) TMI 1698
Stay of operation - valuation - includibility - reimbursable expenses - Held that: - Revenue could not produce any stay order passed by Hon’ble Apex Court staying operation of the ruling passed by Hon’ble High Court of Delhi in the said case of International Consultants and Technocrats Pvt. Ltd. Vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] - appeal dismissed - decided against Revenue.
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2016 (12) TMI 1697
Liability of service tax - Club or Association Service - transaction is between the club and members of the said club - Held that: - The tax liability of the appellant during the impugned period cannot be legally sustained - reliance placed in the case of SPORTS CLUB OF GUJARAT LTD Versus UNION OF INDIA & 3 [2013 (7) TMI 510 - GUJARAT HIGH COURT], where it was held that Section 65(25a), Section 65(105) (zzze) and Section 66 as incorporated / amended to the extent that the said provisions purport to levy service tax in respect of services purportedly provided by the petitioner club to its members, to be ultra vires - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1694
100% EOU - Refund of unutilized CENVAT credit - various input services - Air Travel Agent Service - Business Auxiliary Services - Chartered Accountants Services - Clearing and forwarding agents services - CHA Services - Companies Secretaries Services - Courier Agency Services - Development and Supply of Content Services - Franchise services - General Insurance Services - Transportation of goods by Road - Outdoor cateringservice - Transport of goods by air - Works contract services - denial on account of nexus - Held that: - except for transport of goods by air, all other services on which refund has been denied on the ground that the said services are not input service is wrong - except transport of goods by air and for other services, the appellant is entitled to the said refund - appeal allowed in part.
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2016 (12) TMI 1644
100% EOU - refund claim - export of services - Rule 5 of CCR, 2004 - refund denied on the ground that the services on which refund has been claimed do not fall in the definition of ‘input service’ as contained in Rule 2(l) of CCR - Held that: - it is quite clear that the appellant is eligible for the benefit of refund in respect of services in dispute considering various judgements mentioned - the matter is remanded to the original adjudicating authority for considering the refund claim in accordance with law as regards other aspects except the eligibility in respect of services - appeal allowed by way of remand.
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2016 (12) TMI 1643
Penalty u/s 76 and 77 - Commercial or Industrial Construction Services - delayed payment of tax - Held that: - there was no malafide on the part of the appellant. The appellant also paid the tax during the investigation and before issuance of the SCN. In this event, imposition of penalty u/s 76 is also not justified. Section 76 provides, where any service tax has not been paid for any reason, other than the reason of fraud or collusion etc., the person who has been served the notice under Section 73(1) of the said Act shall, in addition to the service tax and interest specified in the notice, be also liable to pay penalty - In the present case, the appellant paid the tax before issuance of the SCN and therefore, penalty u/s 76 cannot be sustained - penalty u/s 77 upheld - appeal allowed in part.
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2016 (12) TMI 1619
Levy of service tax - accreditation fee - revenue relied upon the case of Punjab Technical University vs. Commissioner of Central Excise and Service Tax, Ludhiana [2016 (1) TMI 162 - CESTAT NEW DELHI] - Held that: - the Punjab Technical University case has come after 2013, when the distance education was brought under regulation of the University Grants Commission. But during the period under consideration, the distance education was regulated by the Distance Education Council (DEC), IGNOU, Delhi which is an independent and distinguishable legal entity. The entire fee structure was brought to the net of service tax in the above case law (PTU) but it is not the Revenue’s case in the present case - When it is so then there is no justification to bring the “accreditation fee” to the service tax net - appeal allowed - decided in favor of appellant.
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2016 (12) TMI 1616
Penalty u/s 77 and 78 - payment of tax before issuance of SCN - Held that: - the respondent is a Govt. of India Undertaking engaged in the business of planning, design, consultancy in the matter of mining. The respondent paid the entire amount of tax before issuance of the SCN voluntarily - there is no material available on record of fraud, collusion or willful misstatement etc. to evade payment of tax. Therefore, the imposition of penalty u/s 78 of the Act, 1994 is not justified.
The imposition u/s 77 is proper for not making the application to the Superintendent.
Appeal allowed - decided partly in favor of appellant.
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2016 (12) TMI 1609
Show cause violating the Central Board’s instruction vide F.No. 1080/11/DLA/CC dated 8.7.2016 - Pre show cause notice - Held that: - the pre-show cause notice was issued without supplying the Annexures-A to E. In spite of petitioner request to supply the document the date fixed for discussion in the said show cause notice is fruitless. Thus the demand notice issued vide Annexure-1 is not sustainable - we quash Annexure-1 and remit the matter back to opposite party to supply the documents as per pre-show cause notice - petition allowed by way of remand.
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2016 (12) TMI 1608
Refund claim - Education Cess and Secondary and Higher Secondary Education Cess paid on services used for export of goods - survey fees - short-shipment of quantity - Held that: - the claim on account of Education Cess and Secondary and Higher Education Cess is inadmissible in terms of N/N. 41/2007-S.T., dated 6-10-2007 - The violation of statutory provisions on limitation cannot be treated as mere technical nature of breach. Therefore, the denial of Cenvat credit on this issue cannot be accepted.
Regarding rejection of refund claim on short shipment, N/N. 41/2007-S.T. provides that the Central Govt. exempts the taxable services specified in the schedule received by an exporter and used for export of goods from the whole of the Service Tax leviable thereon - In the present case, there is no dispute that the taxable services were used for export of goods which was found short shipped. Revenue has not disputed that the taxable service used for export of goods and thereafter, there is a short shipment which cannot disentitle the appellant from the benefit of the notification. Therefore, refund claim on short shipment of quantity of exported goods cannot be rejected - refund claim on proportionate deduction of service tax on short shipment is allowed
Appeal allowed - decided partly in favor of appellant.
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