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Service Tax - Case Laws
Showing 1 to 20 of 3430 Records
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2018 (12) TMI 1850
Rate of Service Tax - Repair and Maintenance Service - rate of tax on services which were rendered prior to 18.04.2006, but the payments for such services were received after 18.04.2006 - HELD THAT:- The rate of service tax payable will be that which was prevalent at the time of providing the service. There is no basis for charging service tax at the rate prevalent at the time of receipt of payment when the service itself has already been rendered when the service tax rate was lesser.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1804
Business Support services or not - certain charges recovered by appellant from customers purportedly for getting the vehicles registered and smart card issued by the statutory authorities as prescribed in the Motor Vehicles Act, 1988 - period between January 2011 to December 2011 - HELD THAT:- Issue decided in the case of WONDER CARS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE I [2016 (1) TMI 738 - CESTAT MUMBAI] where it was held that The findings recorded by the lower authorities are incorrect as the definition of Business Support Services as per section 65(104c) of the Finance Act and Demand is unsustainable and liable to be set aside.
Demand do not sustain - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1803
CENVAT Credit - Cenvat credit attributable to the exempted service has been reversed - liability on the part of appellant to pay 6%/8%, in terms of Rule 6(3) of Cenvat Credit Rules, 2004 - HELD THAT:- Considering the submissions of the ld. Counsel that the entire Cenvat credit attributable to the exempted service has been reversed, the demand under Rule 6(3) i.e. 6%/8% of the value of exempted service will prima facie not survive - However, the calculation of Cenvat credit attributable to exempted service has not been verified by the lower authorities.
As per the submission of the ld. Counsel, reversal was shown in the periodical returns filed with the department which has not been seen by the department as the same was not submitted at the time of adjudication.
The matter should go back to the Adjudicating Authority to verify the quantum of Cenvat credit attributable to the exempted service and reversal thereof - appeal allowed by way of remand.
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2018 (12) TMI 1800
Rebate of Service Tax - export of services - case of respondent is that service tax is not leviable on export of services under Section 66B read with Section 66C of the Finance Act, 1994 and any amount collected without authority of law cannot be retained by the Government in terms of Article 265 of the Constitution of India - Section 11B of the Central Excise Act - HELD THAT:- The Commissioner (Appeals) has allowed the respondent’s appeal vide aforesaid OIA by accepting the fact that the respondent was not required to pay any service tax on the exported services and the refund of service tax wrongly paid on the exported services is admissible under Section 11B of the Central Excise Act. This legal postulation that the respondent was not required to pay any service tax on the exported services is not questioned by the applicant also in their revision application. Instead the applicant has only stressed that no rebate of service tax could be granted from 1-7-2012 as no Notification providing for rebate of service tax is available from the said date even when Commissioner (Appeals) has not allowed any rebate of service tax.
The Order-in-Appeal is manifestly relating to refund of service tax and not the rebate of service tax which can be granted only if a Notification issued by Central Government authorizes in respect of export of services. But the applicant has still filed the revision application for the reasons discussed in para (2) by considering the matter relating to rebate of tax and ignoring the truth that the Commissioner has allowed refund of excess service tax paid in this matter under Section 11B of the Central Excise Act. Whereas Section 86(2) of the Finance Act, read with Section 35EE of the Central Excise Act, 1944, unambiguously stipulate that the revision application can be filed before the Central Government against the Order of the Commissioner (Appeals) if the Order relates to grant of rebate of service tax on input or rebate of duty paid on inputs used in providing exported services - But there is no legal provision for filing the revision application against the Order-in-Appeal which is relating to refund of service tax as is in the present case.
The Government does not have any legal authority to deal with the Commissioner (Appeals)’s above referred Order which is clearly relating to refund of service tax and not the rebate of service tax on input services or rebate of duty paid on inputs as is envisaged in aforementioned Section 86(2) of the Finance Act - the Government reject the revision application as non-maintainable due to lack of jurisdiction.
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2018 (12) TMI 1794
Business Support Services - Handling charges collected by the Appellant from customers over and above the legal charges viz. smart card fee, vehicle registration fee etc. for getting the vehicle registered with RTO authorities - levy of service tax - HELD THAT:- The issue involved in this Appeal is no more res integra in view of the decision of this Tribunal in Appellant’s own case on the very same issue in the matter of Wonder Cars Pvt. Ltd. vs. Commissioner of Central Excise, Pune-I [2017 (5) TMI 342 - CESTAT MUMBAI] while deciding this issue in favour of the Appellant, held that any charges towards the registration of the car cannot be regarded as BAS.
There are no reason to deviate from the view taken by the Tribunal - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1788
Short payment of service tax - Commercial industrial building and civil structures and work contract service - service tax on construction of college Building not paid - appellant's case is that services of construction of college building, are exempted from payment of service tax vide Board Circular No. 80/10/2004-ST dated 17 September 2004 - HELD THAT:- The tax invoices issued by the appellant to M/s Devi Shakuntala Thakral Charitable Foundation for construction of college building are all dated before 01 July 2012, we also find that as per the provision of point of taxation Rule 11, the date of invoice is relevant for application of the service tax liability as the completion of the service has been before 01 April 2012 when the new service tax regime has come into operation and invoices has raised much before 01 July 2012 - the scope of applicability of the service tax with regard to the construction service for charitable institution, education institution, as mentioned above, have been exempted since there is no denying of the fact that the construction undertaken by the appellant was of a education institution, therefore, the service provided by the appellant to M/s Devi Shakuntala Thakral Charitable Foundation was not taxable - demand set aside.
Whether it is a fact that appellant have provided work contract service to M/s Central Warehousing Corporation and Industrial Rail Warehousing Company after 01 July 2012 and as per the provisions of Notification No. 30/2012 dated 20 June 2012 - whether the appellant was only liable to pay 50% of service tax due on the services provided by them to above-mentioned cooperate bodies? - HELD THAT:- It is a matter of record that the construction activity undertaken by the appellant involved both supply of the goods as well as supply of the labour and services and, therefore, as per the definition of the work contract service and as held by Hon‟ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], the activity of the appellant is rightly classifiable under the category of the work contract service as per the provisions of Section 65 (105) (zzzza) - The Notification No. 30/2012 dated 20 June 2012 provides that when any individual, or Hindu undivided family or partnership firms provides a work contract service to a registered body cooperate, the service tax payable by the provider of the service will be 50% and the balance 50% of the service tax need to be paid by the recipient of the service - the construction activity undertaken by the appellant for M/s CWC and others is rightly classifiable under work contract service - demand do not arise.
There is no service tax liability emerges on the appellant on both the counts and, therefore, the order-in-appeal is without any merit and, therefore, set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1786
Classification of services - transport of goods by road service - supply of the tangible goods service - it has been alleged that the assessee has provided goods transport agency service to air force station at Jodhpur, however, they have not discharged their service tax liability on the same - time limitation - HELD THAT:- The show cause notice mentioned at Sl. No. (i) and one mentioned at Sl. No. (iii) are both hit by period of limitation because previously also the appellant has been issued a show cause notice No. V (ST)/SCN/759/JDR/07/307 dated 29 March 2007 which was adjudicated by the order-in-original No. 583/ST/2009-10 dated 12 July 2010 wherein a demand under the goods transport agency service was confirmed against the appellant and same was dropped by the Commissioner (Appeals) holding that the activity undertaken by the appellant does not qualify to be classifiable under the goods transport agency service. These facts were undoubtedly in the knowledge of the department and the department still chose to issue a show cause notice dated 09/10/2012 covering a period from 2007-2008 to 2011-2012 by invoking the extended time proviso under Section 73 of the Finance Act, 1994 and again classifying the activity undertaken by the appellant under the Goods Transport Agency Service.
The department has been aware about the activity of the appellant since very beginning and, therefore, we do not find any justification in invoking the extended time proviso under Section 73 of the Finance Act, 1994 - Secondly, since the issue of the classification of the activity undertaken by the appellant have already been decided by the Commissioner (Appeals) as we have been told there is not appeal against the said order, we feel that the subordinate officers should have shown some sense of discipline and would have respected the findings of the Commissioner (Appeals) while deciding the matter.
The Commissioner (Appeals) need to take all the three show cause notices for consideration at a time and issue is pertaining to the classification of the service on the basis of the documents available in the adjudication file of the department as well as with the appellant need to be scrutinized to reach at a conclusion as to whether the appellant is providing supply of the tangible goods service or goods transport agency service - since the issue have been before the department since 2007 when the first show cause notice which was adjudicated vide the order-in-original No. 583/ST/2009-10 dated 12 July 2010 which has also been decided by the Commissioner (Appeals) subsequently, the legal maintainability of the show cause notices need to be examined in view of above fact whether same are barred by period of limitation as per the provisions of Section 73 of the Finance Act, 1994 or not.
Matters remanded to Commissioner (Appeals) for re-adjudication of all the three matters - appeal allowed by way of remand.
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2018 (12) TMI 1785
Benefit of N/N. 1/2006-ST dated 01.03.2006 - Commercial or Industrial Construction Service - Construction of Residential Complex Services - Consulting Engineering service - non-inclusion of value of free material supplied by the service recipient for completion of work order provided to the appellant under the category of construction of commercial or industrial construction services - HELD THAT:- The matter is no more res integra as the issue has already been decided by Hon’ble Supreme Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] where it was held that the value of goods and material supplied free by the service recipient is not to be included in the gross amount charged as per the provisions of section 67 of the Finance Act, 1994.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1780
Classification of services - cleaning services or not - evacuation of certain Ash from the fly ash pond of Kolaghat Thermal Power Station under West Bengal Power Development Corpn. Ltd. - HELD THAT:- The issue is no more res integra and has been decided by the Tribunal in the case of M/S. COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX-RANCHI VERSUS M/S. HINDUSTAN STEEL WORKS CONSTRUCTION LTD. [2018 (11) TMI 1217 - CESTAT KOLKATA] where reliance placed in decision of this Bench in the case of M/s. Calcutta Industrial Supply Corporation Vs. Commissioner of Service Tax, Kolkata [2017 (11) TMI 158 - CESTAT KOLKATA], where it was held that It appears that the purpose of the tender is for disposal of Ash in the abandoned mines of ECL. The appellant is engaged for transportation and disposal of Ash in the abandoned mines. The letter does not show that the appellant was engaged for cleaning of the premises. Therefore, the demand of Service Tax under the category of cleaning service is not justified.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1779
Liability of service tax - services for civil works, fabrication, testing & commissioning, erection and installation in the capacity of a sub-contractor - whether the appellant herein be saddled with service tax liability when the Revenue is not deprived, given the fact that tax stood collected by them, on the whole of the contact value including the consideration paid by the main contractor to the sub contractor i.e., the appellant in this case? - HELD THAT:- Hyderabad Bench of this Tribunal in case of Power Mech Projects Ltd. vs. Commissioner of Central Excise, Guntur [2016 (9) TMI 844 - CESTAT HYDERABAD], wherein identical case was involved regarding the service tax liability in the category of Erection, Commissioning and Installation Services for the period April 2007 to March 2008 i.e. the period subsequent to material period impugned herein, the Tribunal after noting the fact that since main contractor had already discharged service tax liability, set aside the demand on the sub contractor.
The legal position herein stands decided in favour of the appellant herein and against the Revenue.
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2018 (12) TMI 1778
Valuation - CHA service - amount reimbursed by the clients of the Respondent - inclusion of values realized towards Statutory Expanses such as Cess, Customs Duties, Port Duties, etc and also values realized towards general charges, labour charges, transportation, miscellaneous charges, sea and air freight charges, drawback claim, go-down rent, service charges etc. incurred by them on such reimbursement - HELD THAT:- The issue in the present case id squarely covered by the decision 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.
Impugned order upheld - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1777
100% EOU - Classification of services - Health Club and Fitness Centre services or not - business of development of software as a 100% EOU operating under the STPI scheme - HELD THAT:- The Trust has been constituted for the welfare of the employees in 1994 much before the period of dispute impugned herein. Both Trust and the appellant company cannot be said to be one and the same entity, inasmuch as both are separately assessed to Income Tax and both have been granted separate service tax registrations which is a fact on record. Both the authorities below have taken note of the fact that subject service (for gym, health centre, etc) has actually been rendered by the Trust and it is only the premises where gym is located, belongs to the company, which should not be the mere criterion for ascertaining the service provider - In fact, the entire contribution made by the members, on which the instant demand has been raised, has been received by the Trust and not the Company.
As per Section 65(7) of the Finance Act, 1994, the term ‘assessee’ has been defined to mean the person liable to service tax and includes its agent. As per the Rules, the person liable to pay service tax is the person who has provided the taxable services, i.e. the service provider. It is not disputed that the service has actually been provided by the Trust, who subsequently got registered with the department and started discharging service tax liability which fact has been noted by the Ld. Asst Commissioner in his order dated 28.11.2008, based on which the demand on appellant company has been dropped.
The demand of service tax, interest and penalty by allowing the instant appeal with consequential relief - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1753
Business auxiliary service - export of services - It was the contention of the respondent herein that, the commission, having been received from outside India and in convertible foreign exchange, was for rendering service to entities outside the country the exemption in Export of Service Rules, 2005 would apply - HELD THAT:- It is common ground that the activity of the respondent herein is within the ambit of ‘business auxiliary service’ taxable under section 65(105)(zb) of Finance Act, 1994; the dispute merely pertains to whether the said transactions are exempted as exports. Intuitively, there can be no doubt that an activity for which consideration is received by an entity from outside India in convertible foreign exchange is nothing but export and, hence, not liable to tax. However, it is the contention of Revenue that after the grouping of the various taxable services according to location of the immovable property, location of performance and location of recipient, rule 3(2) of Export of Service Rules, 2005 thereof mandates not only receipts of consideration in foreign exchange but also a two-fold condition of the service having been provided from India and used outside India.
Interpretation of rule 3(2) of Export of Service Rules, 2005 - HELD THAT:- The issue stands settled by the decision of the Hon’ble High Court of Bombay in COMMISSIONER OF SERVICE TAX, MUMBAI-III VERSUS M/S. SGS INDIA PVT. LTD. [2014 (5) TMI 105 - BOMBAY HIGH COURT] and an identical view taken by the majority in the dispute of M/S. MICROSOFT CORPORATION (I) (P) LTD. VERSUS CST. NEW DELHI. [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] where it was held that The Export of Service Rules, 2005, being destination based consumption tax are in accordance with the declaration of law by the Hon’ble Supreme Court. Having held that services involved were export of services, the same are not liable to be sustained against the appellants.
This matter was listed for clarification after conclusion of hearing on 2nd May 2018 on which day the decision on this appeal was pronounced for the limited purpose of ascertaining whether the amount demanded pertains to the period prior to amendment of rule 3(2) of Export of Service Rules, 2005 and difference on the appeal filed by Revenue - While the former was affirmed, we are constrained to take note that the appeal of Revenue has been filed without including the decisions that were pivotal for the reviewing authority to come to a conclusion that the impugned order must be challenged, while forbearing to elaborate on this lapse, departmental authorities are advised to be more cautious in future.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 1736
Tax collected but not deposited in the government exchequer - recovery alongwith interest and penalty - HELD THAT:- It is seen from the records that the office of the appellant has admitted that service tax had been collected along with inspection fees as agreed upon in the tender documents. It is, therefore, a clear case of non-deposit of service tax component collected in the various invoices. The tender process makes it clear that the payment of inspection fees also must comply with the provisions of Finance Act, 1994 and, thereby, includes the service tax component.
Implicitly, service tax component had been collected and this must be deposited. It is the responsibility of every provider of service to deposit the amounts collected as service tax, irrespective of whether the service provided is taxable or not, with the exchequer. Failure to do so must result in recovery of that amount.
It is seen that the appellant is a department of the government of Maharashtra concerned with the erection and maintenance of dams. Owing to the lack of understanding and absence of motive, imposition of penalty under section 78 of Finance Act, 1994 will not sustain - penalty set aside - appeal allowed in part.
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2018 (12) TMI 1735
Taxability - services rendered by the appellant in respect of construction of residential units - period October 2007 to February 2008 - HELD THAT:- The appellants are builders of residential complexes and entered into/sale deeds/agreements for construction with the buyers - the demand in the case in hand is prior to 01.07.2010 and the services provided were for construction of residential complexes by the builder.
The decision in the case of Kolla Developers & Builders of this Bench [2018 (11) TMI 164 - CESTAT HYDERABAD] is directly on the same issue where it was held that legal position is settled and the appellant was not required to pay service tax on the services allegedly rendered by them during the relevant period.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1627
Freezing of Bank accounts of the petitioner - grant of installments for payment of dues - petitioner claims financial distress to pay the admitted liability under the service tax laws - Held that:- There is an admitted liability so far as the petitioners are concerned. The Central Board of Excise and Customs circular dated February 28, 2015, which contemplates that, the instalments may be granted is qualified. The instalments can be granted to an entity who is in financial distress - In the present case, there is nothing on record to establish financial distress. Balance sheet of the company is not on record.
The petitioners not having made available such relevant documents to Court and the petitioners not being in a position to secure the claim of the department, no fruitful purpose would be subserved by staying the operation of the letter dated October 23, 2018 - The balance of convenience and inconvenience is not in favour of grant of such order. In the event, the order of freezing of account is lifted, the petitioners would be in a position to take away the money from such account and defraud the revenue.
Petition dismissed.
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2018 (12) TMI 1619
Rectification of Mistake - error apparent n the face of record - Held that:- The errors pointed out by the Revenue are evidently mistakes apparent on the face of record from the facts - errors are allowed o be rectified - ROM application allowed.
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2018 (12) TMI 1610
Refund of Interest - service tax on the construction services provided to Government organization during the period 01.04.2015 to 29.02.2016 - exemption as provided in Section 102 of Finance Bill, 2016 - rejection of refund was on the ground that Section 102 does not provide for refund of interest - Held that:- As per Section 102 of Finance Act, 2016, the service tax is not leviable on the construction services provided to the government departments during the period 01.04.2015 to 29.02.2016 - Admittedly, the appellant paid the service tax during the said period and wherever there was delay, they had paid interest also. Since, the interest is a piggy-back of service tax and when service tax itself was not payable, the interest was also not payable. Since it was charged and paid by the appellant, it is refundable.
Interest should be refunded - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1580
Banking and Other Financial Services - taxability of amount collected by the EPFO towards, inspection charges and administrative charges, penal damages, penal interest from defaulters - Held that:- Apart from the fact that there is a delay of 442 days in filing the appeal for which no satisfactory explanation is given, we do not see any merits in this appeal - Appeal is dismissed both on the ground of delay as well as on merits.
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2018 (12) TMI 1540
Classification of services - mandap keeper services - the revenue sought to levy service tax on the entire value i.e. including the value of room charges - Held that:- The appeal is dismissed on the ground of delay as well as on merits.
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