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Service Tax - Case Laws
Showing 21 to 40 of 3430 Records
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2018 (12) TMI 1539 - SC ORDER
CENVAT Credit - Rule 5 of CENVAT Credit Rules - Held that:- There is no merit in the Special Leave Petition - The Special Leave Petition is dismissed.
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2018 (12) TMI 1538 - CESTAT BANGALORE
Refunds of accumulated and unutilized CENVAT credit - rejection on the ground of time limitation - Section 11B of the Central Excise Act, 1944 - Rule 5 of CENVAT Credit Rules, 2004 read with N/N. 5/2006 dated 14.3.2006 and N/N. 27/2012-CE dated 18.6.2012 - Held that:- The original authority after proper verification found some of the refund claim within time and some of the refund claim beyond time. Accordingly, what was within time was allowed and what was beyond the time as prescribed by the Tribunal was rejected.
Larger Bench of the Tribunal in the case of CCE vs. Span Infotech (India) Pvt. Ltd. [2018 (2) TMI 946 - CESTAT BANGALORE] has also held that the time limit for consideration of the refund claim under Rule 5 of CENVAT Credit Rules, 2004 may be taken as the end of the quarter in which the FIRC is received in cases where the refund claims are filed on a quarterly basis.
Appeal allowed in part.
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2018 (12) TMI 1537 - CESTAT MUMBAI
Levy of service tax - remuneration paid to channel partners as brokerage, commission, etc. - recipient of service - reverse charge mechanism - Held that:- The extract of a sample agreement entered into between the respondent and the ‘lead generator’ makes it amply clear that their function is limited to marketing of the product whereas an ‘insurance agent’ acts in place of the insurance company in so far as the policyholder is concerned. This is not to disclaim the scope of coverage of the service provided by ‘lead generator’ under any other head of taxable service - The transfer of burden of discharge to the service recipient within section 68 of Finance Act, 1994 is specific and limited without scope for extending beyond the few transactions listed in rule 2(d)(i) of Service Tax Rules, 1994. The Central Board of Excise and Customs, vide instruction no. 137/21/2011-ST dated 15th April 2013, has clarified, in the context of certain levies under Finance Act, 1994, which had a reference to some other laws for the purpose of definition that the scope of such indirect definitions would not extend beyond the specific content of those definitions.
It is, therefore, reasonable to surmise that the claim of the Learned Authorised Representative that the Finance Act, 1994 has been aligned entirely with the Insurance Act, 1938 is too farfetched for us to place reliance upon.
The service rendered by ‘lead generator’ is not that of an ‘insurance agent’ and, consequently, the commission paid by respondent to such entities are not liable to be included in the assessable value of the respondent for discharge of tax liability under Finance Act, 1994 - appeal dismissed - decided against Revenue.
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2018 (12) TMI 1536 - CESTAT AHMEDABAD
Imposition of penalty - service tax paid on being pointed out - no malafide intent - Commercial or Industrial Construction Service - Held that:- The demand was raised on the basis of audit. The appellant have not denied the charges of non payment of service tax and immediately on pointing out by the audit, they paid the service tax and interest was also paid subsequently - also, there is no suppression of fact on their part.
To invoke penalty, there should be suppression of fact and mis-declaration etc. on the part of assessee, which does not exist in the fact of the present case - penalty set aside - demand of service tax and interest and payment thereof is maintained - appeal allowed in part.
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2018 (12) TMI 1535 - CESTAT CHENNAI
CENVAT Credit - input services - consulting engineering service - input services received from foreign company - reverse charge mechanism - denial of credit on the ground that it is not input service - Held that:- The appellant has explained that these services were availed in order to start the township project. These were consultancy services availed for preparatory work for developing the township for which they have taken registration for discharging the service tax on these input services under the reverse charge mechanism - During the disputed period, there was no bar for taking the credit on demand of service tax under reverse charge mechanism - The decision laid down in the case of Kansara Modler Ltd. [2014 (1) TMI 1095 - CESTAT NEW DELHI] have categorically held that the assessees are eligible to take credit of the service tax paid under reverse charge mechanism - Credit allowed.
CENVAT Credit - the appellant has not started providing output service and have taken registration for providing output service of works contract service only with effect from 23.10.2009 - Department is of the view that they are eligible to take credit only from the date of registration - Held that:- The services which are needed to start providing output service for manufacturing finished products would be eligible for credit. The said issue has been sufficiently analyzed in various cases - Hon’ble High Court of Karnataka in the case of Tavant Technologies Ltd. [2016 (3) TMI 353 - KARNATAKA HIGH COURT] had followed the decision in mPortal Wireless Solutions Pvt. Ltd. [2011 (9) TMI 450 - KARNATAKA HIGH COURT] and held that for availing as well as refund of unutilized credit, registration of service tax is not required - credit allowed.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1484 - CESTAT ALLAHABAD
Classification of services - re-rubberisation of rollers provided by them to various customers/clients - whether classifiable under the category of ‘Management, Maintenance or Repair’ Services or under the category of ‘Business Auxiliary Services’?
Held that:- The issue decided in the case of M/S ZENITH ROLLERS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2013 (12) TMI 620 - CESTAT NEW DELHI], where it was held that Activities of the appellants are equally classifiable under two services namely Business Auxiliary Service and Maintenance or Repair service. Since the service cannot be classified under clause ‘a’ and ‘b’ of Section 65A, clause ‘c’ of Section 65A is attracted according to which service is classifiable under the sub-clause of Clause (105) of Section 65 which comes first. Business Auxiliary service is covered under Section 65(105)(zzb) and Management, Maintenance or Repair Service is covered under Clause 65(105)(zzr). Since Business Auxiliary Service comes first under Clause 65(105)(zzb), we hold that service is classifiable under Business Auxiliary Service.
demand raised under the category of 'Management, Maintenance or Repair' Service - Since the service is to be as 'Business Auxiliary Services' (BAS) demand set aside.
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2018 (12) TMI 1483 - CESTAT MUMBAI
Refund claim - input services - rent a cab service - membership of club or association service - real estate agency service (visa) - management, maintenance repair services - export of services - Rule 5 of the Cenvat Credit Rules - Circular dated 19.01.2010 vide 120/01/2010-S.T. - Held that:- The order of the Commissioner (Appeals) would have been sustained if there not been a clarificatory circular issued on 19.01.2010 vide 120/01/2010-S.T. by the Department of Revenue. The circular clearly indicates that conjoint reading of the Cenvat Credit Rules is to be made with Notification no. 5/2006-CX(NT) to broaden the meaning of input service so as to cover its relationship to output service. The said circular also has attempted a liberal approach in stating that example of services like outdoor catering, rent a cab for pick up and drop of employees to office etc. are input services, without reference to if such pick up is from office or from airport. It also had indicated that correlation and scrutiny of documents to establish nexus is not required to be made if Chartered Accountant certificate or a self certification of the exporter is available to that effect and the department officers are only required to make basic scrutiny of the documents, which if found in order, sanction the refund within a month in order to given effect export to zero rate. The said circular was mainly issued for call centres and BPOs established to cover export of services but contained broad outlines of admissibility of credits on export oriented units.
The appellant is eligible to avail cenvat credits to get refunds on those services namely club and association, rent a cab management, maintenance and visa service which were held to be inadmissible by the Commissioner (Appeals) - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1482 - CESTAT MUMBAI
Condonation of delay of 18 days in filing the appeal - there was a demise in the family of the Consultant resulting into the delay - Held that:- For the delay at consultant’s end the appellants should not suffer. Accordingly, the delay is condoned - COD allowed.
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2018 (12) TMI 1481 - CESTAT MUMBAI
Refund of accumulated CENVAT Credit - export of service - refund rejected on the ground that the input services are neither confirming to the definition of input service or have any nexus with the output service exported by the appellant and in some cases refund benefit was also denied on the ground that the services provided by the appellant cannot be considered as export of service.
Held that:- In the present cases, the department has taken a stand that the services provided by the appellant are not conforming to export of service for the purpose of claiming of refund. It is difficult to accept such findings of the department inasmuch as the services all along were provided by the appellant pursuant to the contract to its parent company located in Japan. The situation being same for entire period, denial of refund for a part period is not legally sustainable, without substantiating the fact that the appellant also provided services to the parties within the country.
In view of the fact that input services were used for providing the output service, which was exported, the appellant should statutorily be entitled for refund of service tax paid on input services, which were lying unutilised in the Cenvat account for a considerable period of time. It is a settled position of law that the authorities while adjudicating the refund application under Rule 5 of the rules, should not look into the aspect of consideration of the requirement of Rule 2 (l) of the rules inasmuch as other provisions exist in the statute for consideration of such dispute.
There are no merits in the impugned order, so far as it denied refund benefits to the appellant, other than the service tax paid on immovable property service - appeal allowed in part.
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2018 (12) TMI 1480 - CESTAT MUMBAI
Recovery of the amount of service tax adjusted along with interest and penalty - Non-compliance with the conditions prescribed under Rule 6 (3) and Rule 6(4B) of Service Tax Rules, 1994 - Held that:- Undisputedly the appellant has adjusted the excess amount of service tax paid during the relevant period April 2010 to March 2011 in accordance with Rule 6(3) of the Service Tax Rules 1994.
For the subsequent period this Tribunal has allowed to adjust excess amount of service tax paid by the appellant in similar facts and circumstances. However, in the present case to ascertain whether the amount collected in excess has been refunded on to the customer by way of credit note or otherwise matter is remanded to the adjudicating authority.
Appeal allowed by way of remand.
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2018 (12) TMI 1431 - GUJARAT HIGH COURT
Service tax audit of private agencies - whether, with the aid of Rule 5A of the Service Tax Rules, 1994, the CAG can carry out the compulsory service tax audit of private agencies like the petitioner? - Held that:- The respondent no.1 shall not carry out any further service tax audit of the petitioner till next order - interim relief granted - Issue Notice returnable on 24.1.2019.
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2018 (12) TMI 1430 - BOMBAY HIGH COURT
Manufacture or service - catering services - validity of assessment order - Section 35G of the Central Excise Act, 1994 - Held that:- The issue is decided in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI – I VERSUS M/S. TAJ SATS AIR CATERING LTD., SKY GOURMET CATERING SERVICES PVT. LTD., MR. GANESH CHATURVEDI, MR. MANISH CHIRANEWAL [2018 (3) TMI 852 - BOMBAY HIGH COURT], where it was held that A party should not be left guessing nor a higher court speculating as to whether the tribunal decided the matter by holding that the activity amounts to manufacture and yet not sustained the demand in terms of the adjudication order on the ground of limitation. Precisely, that has happened in this case.
The impugned order dated 10th August, 2018 of the Tribunal is set aside to the extent it relates to the Appellant and restore the issue before the Adjudicating Authority for fresh consideration and disposal, in accordance with law, qua the present Respondent alone - appeal disposed off.
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2018 (12) TMI 1429 - BOMBAY HIGH COURT
Maintainability of appeal - Voluntary Compliance Encouragement Scheme - case of Revenue is that VCES being a self contained code under Finance Act, 2013 without any appeal provision in the scheme dismissed the appeal holding that the appeal is not maintainable - Held that:- Issue decided in the case of Narasimha Mills Pvt. Ltd. vs. Commissioner of C. Ex.(Appeals), Coimbatore, [2015 (6) TMI 787 - MADRAS HIGH COURT], where the very issue fall for consideration before the Madras High Court and the Madras High Court, by specific observation, dismissed the appeal on the ground that there is no remedy of appeal in the scheme would be giving unfettered power to the authority and same is not acceptable.
The impugned order dated 22nd September, 2017 passed by the Customs, Excise and Service Tax Appellate Tribunal is quashed and set aside - Matter restored before CESTAT.
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2018 (12) TMI 1428 - CESTAT MUMBAI
Non-payment of service tax - erection and commissioning or installation services - maintenance or repair service - scope of SCN - Held that:- The appellant are engaged in providing various services to Maharashtra State Electricity Distribution Company Ltd (MSEDCL), Ratnagiri and other places relating to distribution of electricity during the period 2008-09 and 2009-10. The said services are held to be not leviable to service tax by virtue of Notification No. 45/2010-ST dated 20th July 2010 in exercise of powers conferred by Section 11C of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994.
Whether the appellant are eligible to the benefit of the said Notification or otherwise was not raised before the authorities below and, therefore, the same was not examined. Thus, in the interest of justice, this issue needs to be analysed - appeal allowed by way of remand.
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2018 (12) TMI 1427 - CESTAT MUMBAI
Rectification of mistake - Held that:- On going through the case records, more specifically, the stay order dated 23/09/2014 passed by the Tribunal, we are of the prima facie view that the observations recorded in the said order have not been properly considered by the Tribunal while passing the final order dated 22/03/2018 - there are apparent mistake in the final order dated 22/03/2018, which can be called for rectification in the interest of justice - ROM Application allowed.
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2018 (12) TMI 1426 - CESTAT MUMBAI
CENVAT Credit - input services - repair and maintenance of staff quarters - expenses incurred towards staff welfare services - travelling expenses - membership fees - denial of credit on the ground of nexus - Held that:- Under the unamended definition of input service (effective upto 31.03.2011) the phrase “activities relating to business” was specifically finding place for consideration of the service as input service. The fact is not under dispute that for accomplishing the purpose of the appellant business, the appellant had used and utilized the disputed services. Since the value of taxable service along with service tax paid there-on was considered as business related expenses in the Books of Accounts, the disputed services should be considered as input service in terms of Rule 2(l) of the Rules for the period upto 31.03.2011.
Under the amended definition of Rule 2(l) (with effect from 01.04.2011), the assessee is permitted to avail credit on any service used for providing the output service, excepting the excluded category of services mentioned in the definition of input service - The description of disputed services provided in the impugned order, do not fall under the excluded category provided under Rule 2(l) of the Rules.
Since the original authority had specifically recorded the findings that the appellant had not produced any documentary evidences to show nexus as well as the eligibility of Cenvat benefit on the disputed services, the matter should be remanded to the original authority for verification of the documentary evidences to be produced by the appellant - appeal allowed by way of remand.
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2018 (12) TMI 1425 - CESTAT MUMBAI
Taxability - commission for marketing services - Reverse charge mechanism - principles of natural justice - Held that:- The submissions made by the appellant have not been considered in proper perspective - Since the issue relates to calculation of actual service tax liability, which according to the appellant is not payable in absence of any provision of service, the matter should be remanded back to the original authority for a proper fact finding with regard to the actual service tax payable by the appellant - Appeal allowed by way of remand.
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2018 (12) TMI 1366 - CALCUTTA HIGH COURT
Rate of tax - jurisdiction of the HC to decide the appeal - cleaning factory premises - Held that:- the appeal is taken up for hearing, dispensing with all formalities and dismissed on the ground that this Court has no jurisdiction to entertain it.
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2018 (12) TMI 1365 - BOMBAY HIGH COURT
Penalty u/s 77 of FA - Issue on doubt - site formation service - Government of India, Ministry of Finance had a doubt till the issuance of Circular dated 29.10.2006 whether service tax was leviable on the services of site formation - Held that:- In so far as the order which took converse view and assailed by the Assessee in other matters are concerned, there the consideration ends with a finding on nature of contract. The CESTAT holds that contract of Assessee with WCL is for a site formation. There the provisions of Section 80 of Finance Act or then circular dated 12.11.2007 are totally omitted from consideration. The said order, therefore, also show non application of mind.
Extended period of limitation - Section 73[1] of the Finance Act, 1994 - Held that:- Impact of “confusion” about nature of activity undertaken is already directed to be looked into and matters are remanded back. If claim of assessee, that service tax is paid on transportation charges is incorrect, effect thereof or then entitlement of department to invoke “extended period” due to is may be a material consideration. This also appears to have escaped attention. This view, therefore, again shows non application of mind. The impact of clarificating circular dated 12.11.2007 has not been considered at all. As the other matters need a relook, it is in the interest of justice that this view is also given a fresh thought by CESTAT.
Appeal restored back to file of the CESTAT for its further consideration as per law.
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2018 (12) TMI 1364 - CESTAT ALLAHABAD
Validity of SCN - Sub-contract - Demand based on third party documents - Held that:- M/s Utility Powertech Ltd. did not submitted any invoices raised by appellant service-provider to support the information submitted by them in the form of Bill value from the period from 01.04.2006 to 31.03.2011 which was treated by Revenue as assessable value.
Also, Revenue did not confront the appellant service provider with the figures obtained from M/s Utility Powertech Ltd. - therefore, the entire show cause notice is based on third party information, and is not sustainable - appeal allowed - decided in favor of appellant.
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