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Service Tax - Case Laws
Showing 41 to 60 of 3430 Records
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2018 (12) TMI 1363 - CESTAT ALLAHABAD
Manpower Recruitment/Supply Agency Service - Rent a Cab Service - Legal Consultancy Service - reverse charge mechanism - demand of service tax - Held that:- The demand of Service Tax of around ₹ 12 lakhs on Manpower Supply is not sustainable, since the short-paid service tax was made good by the appellant through payments dated 05.06.2014 & 04.07.2014 and reflected the same at Part-G of ST-3 returns filed on 14.11.2014 - demand set aside.
Rent a Cab Service - Held that:- Rent a Cab Service was exempted during the relevant period - demand do not sustain.
Legal Consultancy Service - Held that:- Service tax is leviable on services provided by advocate and not on other charges claimed by advocate on court fees etc. - demand do not sustain.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1362 - CESTAT HYDERABAD
Non-payment of Service tax - erection, commissioning and installation services - demand alongwith interest - Held that:- The appellants are engaged in providing solar fencing systems to their customers and owing to some tax concessions, available to the solar power sector they were under the bonafide belief that their activities are not subject to payment of Service Tax. Subsequent to audit of their accounts, it was pointed out that they are liable to service tax under the category of “maintenance or repair services”. The appellant/assessee being a proprietary concern immediately paid the entire liability of service tax along with interest and filed ST-3 returns, though belatedly.
The appellants are not disputing their liability of service tax and have paid the entire amount of service tax along with interest which has also been appropriated in the adjudication order but are only before the Tribunal contesting the imposition of penalties - the entire proceedings were initiated based on the final audit report and the ST-3 returns and hence, do not find any element of suppression of facts mis-statement etc. with an intent to evade payment of service tax.
The demand of Service Tax and interest is upheld and the penalties imposed u/s 78 and late fine imposed under Rule 7C of the S.T. Rules, 1994 are set side - appeal allowed in part.
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2018 (12) TMI 1361 - CESTAT ALLAHABAD
Demand of Service Tax - Remuneration paid to the directors of the company - Reverse charge mechanism - Held that:- The learned Commissioner (Appeals) has observed that in the absence of documents such as TDS Certificate, Ledger Account and other related documents substantiating appellant’s claim of employer-employee relationship between the said directors and the claim of the appellant could not be examined for the period from July, 2012 to August, 2013 and therefore, said claim was rejected - also, the learned Commissioner (Appeals) did not have advantage of the documents submitted here - appeal allowed by way of remand.
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2018 (12) TMI 1299 - CESTAT HYDERABAD
Rectification of mistake - By Order dated 05.02.2018, the Bench disposed of two appeals ST/30840/2017 & ST/30848/2017 in which the issue was refund of service tax for different periods. It is noticed that the Bench in Paragraph 3 has only indicated the period involved in one appeal and not another appeal - Held that:- The error of not mentioning the period involved in the first appeal is now rectified and it being a typographical error, the same is rectified and the first sentence of Paragraph 3 - The application for rectification of mistake is disposed off.
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2018 (12) TMI 1298 - CESTAT BANGALORE
SEZ Unit - Refund of service tax paid - only reason which has been given for rejection of the refund claim is that the appellant has not produced required documents and further the reasons for the delay in the application seeking condonation are not convincing - Held that:- In the N/N. 12/2013, discretion is given to the Assistant Commissioner for condonation of delay in filing the refund application. Further, the appellants have given reasons for seeking condonation but the same have not been considered by the authorities below and the reasons for delay are beyond the control of the appellant.
The condition regarding the time limit is procedural only and it should be liberally interpreted and by taking a liberal approach, the delay in filing the refund application filed before the authorities below is condoned and the impugned order is set aside by remanding the case back to the original authority to decide the claim on merit - appeal allowed by way of remand.
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2018 (12) TMI 1297 - CESTAT BANGALORE
Condonation of delay of 298 days in filing appeal - appellant has submitted that they had no knowledge regarding the service tax liability on rent and they got the registration on 20.6.2013 and had filed the service tax returns through electronically - Held that:- Admittedly, there is a delay of 298 days in filing the appeal before the Commissioner (A), which is beyond the condonable power of the Commissioner (A) - Since the delay in the present case was beyond the condonable limit, therefore, the Commissioner (A) has rightly dismissed the appeal as time bar.
Reliance placed in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT OF INDIA] - appeal dismissed.
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2018 (12) TMI 1296 - CESTAT BANGALORE
Extended period of limitation - Evasion of service tax - Security Agency service - suppression of facts - Demand of service tax alongwith Interest and penalty - Held that:- The issuance of subsequent SCN on the basis of some facts for which earlier show-cause notice was issued and which was finally decided by the Tribunal dropping the penalty on the appellant cannot be done in view of the decision of Hon'ble Supreme Court in the case of Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT OF INDIA]. This decision of the Hon'ble Supreme Court was consistently followed by High Courts and by the Tribunal in various decisions cited supra. In view of the settled position of law, subsequent show-cause notices cannot be issued alleging suppression of facts after all the facts were within the knowledge of the Department when the first show-cause notice was issued. Therefore, the invocation of extended period is not sustainable in law.
In the present case, the show-cause notice was issued on 19/10/2006 covering the period from April 2001 to March 2006 and the impugned order also appropriated an amount of ₹ 66,06,843/- being service tax voluntarily paid for the normal period of limitation i.e. April 2005 to March 2006. Further, there are errors in quantification of the service tax as alleged by the appellant.
The demand of service tax for the normal period confirmed and the demand for the extended period of limitation set aside - case remanded back to the original authority to quantify the demand for the normal period and the appellant would also be liable to pay interest as per law, if there is a delay in the payment of tax found by the adjudicating authority - appeal allowed in part by way of remand.
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2018 (12) TMI 1295 - CESTAT BANGALORE
Penalty u/s 78 - reversal of CENVAT Credit wrongly availed - no suppression of facts - applicability of Section 73(3) of the Finance Act - Held that:- After the audit raised the objection, the appellant reconciled his accounts and paid the service tax along with interest much before the issuance of the show-cause notice. Assessee has also accepted that the CENVAT credit was wrongly taken on account of clerical mistakes committed by the officers who were handling Service Tax matters and the Finance Manager of the unit who was handling the service tax matter had also resigned.
The SCN was issued merely on audit objections and in view of the various decisions, no suppression can be alleged merely on audit objections.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1294 - CESTAT HYDERABAD
Extended period of limitation - Mis-match of amounts shown as income in the income tax amounts to the shown in service tax returns - Demand of Service tax - Held that:- During the period in question 2003-2004, there were two views prevailing on the issue of whether consideration received for hiring out a taxi on kilometer basis is rent-a- cab services or otherwise. These two views has to be settled by the various higher judicial forums to come to a conclusion as to that the services and the consideration received by rent-a-cab services person is taxable even if it is hired out on the basis of kilometer - the impugned order to the extent it is contested in this case is set aside on ground of limitation - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1293 - CESTAT HYDERABAD
Levy of Service Tax - Reimbursement of service tax by service recipient - demand alongwith interest and penalty - extended period of limitation - Held that:- As per Chapter V of the Finance Act, 1994, the service tax has to be levied on the gross amount charged for the service. Wherever the gross amount charged includes service tax, the amount so charged is taken as cum-tax amount and the tax is calculated backwards - In this case, the amount received by the appellant was much higher than what they have disclosed to the department as a result of their re-negotiation with their clients and hence the differential duty arose.
It is also evident that appellant has not disclosed the facts of their re-negotiation with their client and that they are getting over and above the amount initially agreed upon. Therefore, there was clear suppression of fact with intent to evade duty.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 1244 - CESTAT HYDERABAD
Recovery of differential Service Tax - amounts paid by NHAI as TDS - time limitation - Held that:- There is no dispute as to the fact that the agreement entered by the appellant with NHAI at clause 1.10.2 [under taxes and duties clauses] wherein the liability to discharge/ deduct the income tax from the consultant, sub-consultant and personnel was on the part of NHAI which they have complied with and it is also undisputed that appellant had received the amount of consideration of the contract and discharged the service tax liability on such an amount.
Provisions of Section 195A of Income Tax Act, are very clear inasmuch that where the tax chargeable on the income of payee is borne by the payer, then for the purpose of TDS such income shall be increased to such an amount as would after TDS be equal to the net amount equal to payee - the amount of TDS either deducted from the payee’s account or paid on behalf of the payee is considered as income by the Income Tax Act, 1961 and in the case in hand, it is very clear from the records that the amount of consideration on which service tax demand has been raised was reflected and captured from the accounts on verification of the records of the appellant.
Undisputedly, the TDS deducted by NHAI and paid on behalf of the appellant is the amount received for the services rendered as amount of TDS which has been paid by NHAI gets reflected as income in the books of the appellant. It is undisputed that appellant has no other income other than amounts received as consideration from NHAI. If that be so, the amount of tax deducted and paid is shown as income and is directly related to the contract entered by the appellant with NHAI, it can be said that the amount of TDS is charged by the appellant to NHAI for services rendered and is definitely liable to the service tax.
TDS amount paid by NHAI into the Government Treasury on behalf of the appellant herein was an amount paid towards consideration for the services rendered - impugned order upheld.
Time limitation - Held that:- The appellant has also not been able to make out a case on limitation for simple reason that despite showing TDS amount as income in his balance sheet, did not indicate the same or reconcile figures with the service tax returns filed by them and revenue had to come out with the figures on verification of the records itself indicates that there was suppression of facts - the point raised on limitation would also not carry the case of the appellant any further.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 1243 - CESTAT HYDERABAD
Construction of complex services - Demand of ₹ 10,91,396/- on the amounts received over and above the sale deed value for rendering construction of complex services prior to 01.07.2010 - demand alongwith interest and penalties - Held that:- An identical issue has been decided by the Principal Bench in Delhi in the case of UB Constructions Pvt Ltd [2014 (1) TMI 402 - CESTAT NEW DELHI] held that amount received prior to 01.07.2010 over and above the sale deed cannot be taxed under construction of commercial complex services - demand set aside.
Demand of ₹ 26,73,714/- for the period after 01.07.2010 on the amounts received over and above the sale deed - Held that:- The explanation clause included in the definition of construction of complex services will cover the said amount and appellant is liable to pay service tax. It is brought to notice that they had paid the entire service tax liability along with interest - since, the issue involved in this case was being litigated and appellant would have entertained a bonafide belief that tax liability need not be discharged, the provisions of Sec.73(3) could be made applicable to the situation in hand and penalties need to be set aside - demand set aside.
Demand of ₹ 1,73,17,823/- - Held that:- The issue involved in this case is regarding the amounts notionally attributed as consideration to the area shared to the land owner for the construction undertaken on development basis - identical issue has been decided by this Bench in the case of Vasantha Green Projects and Om Sree Builders & Developers and others [2018 (5) TMI 889 - CESTAT HYDERABAD], where it was held that the amount attributable to the consideration received by appellant in the form of land rights from the land owner stands included in the value of villas sold to prospective customer which would mean that whatever consideration was received by the appellant in form of developmental right was considered in assessable value - demand set aside.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1242 - CESTAT CHANDIGARH
Refund of unutilized CENVAT Credit - input services used for providing taxable services under the category of Business Auxiliary Services in respect of Export of Services - Rule 5 of CCR 2004 read with N/N. 27/2012 dated 18.06.2012 - Held that:- Identical issue decided in the case of M/S. EVALUESERVE. COM PVT. LTD. VERSUS CST, GURGAON [2018 (3) TMI 1430 - CESTAT CHANDIGARH], where it was held that the appellants are not liable to pay service tax being provider of service in India in terms of Rule 9 of the Place of Provision of Service Rules, 2012 - refund allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1190 - CESTAT HYDERABAD
Nature of activity - Job work - service or manufacture? - appellants received worn out threaded die rolls from their customers for rework/remanufacturing/reconditioning - Revenue officers are of the view that the process that is undertaken by the appellants on worn out threaded die rolls is not a manufacturing activity - Held that:- The activity is undertaken by them on various worned out die rolls received back from their customers which would mean that the process undertaken by them would not result in a new and distinct product in order to state that it is a manufacturing activity - the activity undertaken by the appellant cannot be considered as a manufacturing activity and the Finance Act will apply and appellant is required to discharge the service tax liability under maintenance or repair services.
Time limitation - Held that:- The appellants have kept the department informed about their activity of reprocessing or reconditioning of the said threaded die rolls. Hence, the demand within the period of limitation from the date of the show-cause notice in these two appeals are only sustainable and the demands beyond the period of limitation are unsustainable and liable to be set aside.
The demands raised within the limitation from the date of show-cause notice are upheld along with interest as also penalties and the demands which are raised beyond the period of limitation are set aside - interest and penalties also set aside - appeal allowed in part.
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2018 (12) TMI 1189 - CESTAT HYDERABAD
Liability of service tax - amount of tax to be paid on the services rendered by the appellant to SEZ Unit - Held that:- The services is rendered by appellant to SEZ unit and the said SEZ unit is authorised to receive the services without payment of service tax. The provisions of Section 51 of the Special Economic Zone Act, 2005 mandates that the provisions of SEZ Act shall have overriding effect notwithstanding anything inconsistent in any act. The provisions of Section 26 of SEZ Act mandates for exemption of service tax, draw backs and concessions to developer - On holistic reading, the services rendered to an SEZ unit are not taxable, is the settled law.
There being no dispute that the services rendered by the appellant to an unit in SEZ who was supposed to follow the provisions of the law, which he did not do so, would not mean that appellant should be saddled with the service tax liability - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1188 - CESTAT HYDERABAD
Works Contract - EPC contracts - period from 2006-07 to 2010-11 - liability of service tax.
Period prior to 01.06.2007 - Held that:- It is on record that the work executed on these contracts is works contract and on perusal of the same it is so, and if that be so, the law which is settled by the Apex Court in the case of Larsen and Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT] would cover the issue in favour of the appellant - service tax liability prior to 01.06.2007 on the turnover of ₹ 12.35 crores is unsustainable and liable to be set aside.
Service tax liability post 01.06.2007 - works contract executed on behalf of Dakshin Infrastructure Pvt Ltd and Aparna Infra-housing Pvt Ltd. - Held that:- The contract entered into by the appellant with M/s Sudhama Projects Pvt Ltd indicate clearly that the appellant had agreed to sub-contract the entire work to sub-contractor M/s Sudhama Projects India Pvt Ltd [which subsequently became Poulomi Infra Pvt Ltd]. The said sub-contract entered into by the appellant with M/s Sudhama Projects in clause No 9 specifically indicates that sub-contractor is required to discharge sales tax and service tax on the completed works as applicable under the relevant Act. Subsequently, a certificate issued by M/s Sudhama Projects (now Poulomi) indicates that service tax liability on the entire contracted value has been discharged and enclosed the details of challan. The service tax liability on the contract executed by Sudhama Projects for the period post 01.06.2007 seems to have been discharged and the reference to challan No. and other payments are given in the statements annexed to the letter.
Once the service tax liability due on the entire contract executed by sub-contractor is discharged, there is no reason for demand of any further service tax from the appellant - the service tax liability demanded from the appellant is liable to be set aside.
Turn-over of the projects executed for APIICL, KTPS APSHCL and Software Engineer Employees Housing Association - Held that:- This issue needs to be addressed independently.
Projects executed by the appellant for APSHCL and APIICL for the period 2010-11 - Held that:- From 01.06.2007, though works contracts are taxable, they would not be excisable if the services thereby is primarily for non-commercial, non-industrial purposes - In the case in hand, there is no allegation nor there is any finding as to the commercial nature of the buildings or the civil structure, constructed by the appellant for APSHCL and APIICL. Thus, on this ground, the demands raised on the appellant needs to be set aside - On limitation also, the demands fails for APIICL and APSHCL up to 2009-10.
Liability of service tax - consideration received by the appellant for executing the projects given to them by KTPS - Held that:- The demand on the appellant for rendering services to KTPS, being rendered to generation of electricity which is must for transmission of electricity, is covered by the ratio and 11C Notification - It is nobody’s case that KTPS is not producer of thermal electrical energy and electricity being an item that cannot be stored requires immediate transmission and distribution. In our view this activity of rendering service to KTPS would be covered by retrospective Notification No 45/2010 dated 20/07/2010 - demand set aside.
Service tax liability - services rendered to Software Engineers Employees Housing and Welfare Association - Held that:- There is nothing on record to show that the said Software Engineers Employees Housing and Welfare Association was for non-commercial and non-industrial purposes and in our view, the turn-over needs to be taxed under works contract services. However, the service tax liability needs to be limited to only 30% of the value of the total consideration received as we find from the C.A’s certificate that the materials used for executing such a contract could be of value of 70% of the contract amount - Upholding the tax demand, but reducing it to 30% of the value of the contract, we hold that appellant has to discharge the service tax liability along with interest on this amount - penalty also set aside.
Liability of service tax - transportation of goods by road - Held that:- The argument of the learned counsel that the transportation of materials was within the site and hence not taxable is unacceptable in the absence of any evidence to show that it was so - in the absence of any evidence, the service tax liability of ₹ 6,89,387/- on the amount paid for transportation of goods by road needs to be upheld along with interest and also the penalty imposed thereon.
Appeal disposed off.
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2018 (12) TMI 1187 - CESTAT AHMEDABAD
Classification of services - technical know-how was transferred to M/s Lupin Ltd. for the manufacture of active Pharmaceuticals Ingredients - case of the department is that this transaction is of providing services of scientific or technical consultancy services - Held that:- On going through the agreement between the appellant and the Lupin Ltd, the transaction is of supply of technical know-how.
The agreement is for supply of microbial strain and technology thereof and for ‘Demonstration’ on laboratory (shake flask) scale for the fermentation process to manufacture lovastatin by M/s Lupin Ltd. As per the terms of payment also, it is a one-time payment for supply of strain and technical know-how. In this case it is clear that the agreement between the appellant and Lupin Ltd is for supply of technical know-how for the manufacture of lovastatin by the Lupin Ltd. Therefore, allegation of the department that the services involved is the scientific and technical consultancy services, is incorrect.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1186 - CESTAT HYDERABAD
Business Exhibition Service - value of the entry tickets sold to general public - Held that:- It is true that there are also amusement facilities within the premises but that does not characterize it as an amusement facility. The exclusion of amusement facility under Section 65 B(9) also clarifies that amusement facility does not include a place within such facility where other services are provided - the appellant is liable to pay service tax w.e.f. 01.07.2012 on the value of the entry tickets sold to general public.
Sale or transmission of electricity during the exhibition - Held that:- Rule 5(1) of Service Tax (determination value of service) Rules, 2006 as been already held ultra vires by the Hon’ble High Court of Delhi which decision was upheld by the Supreme Court in the case of Intercontinental [2012 (12) TMI 150 - DELHI HIGH COURT] - demand set aside.
Advertisement service - Publicity income which they received for sale of space or time for advertisement - period 2005-2006 to 2009-2010 - Held that:- The appellant is not disputing the demand and only contesting the imposition of penalty under Section 78 of the Act and will deal with the penalties separately.
Short payment of service tax - Business Exhibition service - Mandap keeper services - Held that:- There is a dispute regarding the method of calculation and it requires further examination and decision by the original authority and the demand on this count needs to be remanded to the original authority - matter on remand.
Interest on delayed payment of service tax - stall rentals received in advance - Held that:- Merely because some applicants are not allotted a stall and their amounts are refunded to them the service tax does not get payable only after the allotment process is complete. As there was a delay in payment of service tax on stall rentals received is liable to interest and confirmed penalty - demand upheld.
Renting of immovable property service - Held that:- The appellants paid the service tax along with interest and is only contesting the rent pertaining to the months of April and May, 2007 on the ground that the renting of immovable property became a taxable services vide Section 65 (105) (zzzz) of the Finance Act, 1994 is w.e.f 01.06.2007 - demand set aside.
Penalty u/s 78 - Held that:- The appellant is a charitable society registered as such and is engaged in the organizing industrial exhibition. It is difficult to attribute malafide intention to evade payment of service tax so as to defraud the Government by the society. Even if their understanding the law is different from the understanding of the Department that should not form a basis for imposition of penalties - this a fit case to set aside the penalties imposed under Section 80 of Finance Act, 1994 - penalty set aside.
Appeal disposed off.
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2018 (12) TMI 1185 - CESTAT CHENNAI
Non-payment of service tax - period 2012-13 and 2013-14 - Rule 6 of STR - Held that:- The matter requires de novo adjudication by the adjudicating authority. The adjudicating authority shall pass a de novo Order after considering the pleas of the appellant keeping in mind the requirements of law and also after affording sufficient opportunities to the assessee - appeal allowed by way of remand.
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2018 (12) TMI 1184 - CESTAT CHENNAI
Classification of services - manpower recruitment or supply agency service or not - work of grinding roasted coffee beans, blending coffee powder with chicory and packing of coffee powder - Held that:- It is seen from the invoices as well as from the records that the appellant was receiving charges on the basis of kilogram of coffee powder which is subjected to various activities of grinding, mixing, blending etc. The payment is not in respect of number of persons engaged or work done on daily basis or hourly basis.
The Tribunal in the case of Divya Enterprises Vs. Commissioner of Central Excise, Mangalore [2009 (12) TMI 155 - CESTAT, BANGALORE] had occasion to analyse a similar issue and held that when lumpsum work is agreed upon to be rendered on rate contract payment, the same would not amount to manpower recruitment or supply agency service.
Demand cannot sustain - appeal allowed - decided in favor of appellant.
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