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Service Tax - Case Laws
Showing 61 to 80 of 3430 Records
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2018 (12) TMI 1183 - CESTAT CHENNAI
Site formation and clearance services - Sub-contract - the main contractor has discharged the service tax liability entirely - period from 16.6.2005 to December 2008 - Held that:- All the aspects have not been considered - there are certain discrepancies to the quantification which needs to be rectified by the clarifications that has to be produced by the appellants - the matter requires to be remanded to the adjudicating authority - appeal allowed by way of remand.
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2018 (12) TMI 1182 - CESTAT CHENNAI
Condonation of delay of one year in filing appeal - proper communication of order - Held that:- The issue decided in the case of Saral Wire Craft Pvt. Ltd. Vs. Commr. of Cus., C.Ex. & Service Tax [2015 (7) TMI 894 - SUPREME COURT], where it was held that miscarriage of justice has taken place, in that the Authorities/Courts below have failed to notice the specific language of Section 37C(a) of the Act which requires that an Order must be tendered on the concerned person or his authorized agent, in other words, on no other person, to ensure efficaciousness.
Similar is the case on hand: the identity of the receiver is not known nor is it clear whether the signatory is the authorized agent of the appellant or not.
The appellant has made out a case, the explanation for delay appears to be bona fide and not suspected by the first appellate authority as well and hence the same is accepted - the matter is remanded to the file of the first appellate authority - appeal allowed by way of remand.
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2018 (12) TMI 1181 - CESTAT CHENNAI
Validity of SCN - case of appellant is that the category of services are not clear from the show cause notice or the impugned order, which has confirmed the demand - Held that:- The department has not mentioned the category / classification of the service under which the demand is made. Various allegations have been raised in the SCN. However, the classification of the service upon which the specific demand of service tax has been made is not forthcoming. Even after receiving the reply of the appellant, the adjudicating authority has not been able to confirm the demand under a particular category.
The department has not considered the exemption eligible for agricultural produce and has raised the demand without mentioning the category of service. It is not understood whether the demand is on storage or warehousing services or under GTA service - There is a fundamental flaw in the show cause notice as well as in the impugned order.
The demand cannot sustain and requires to be set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1127 - CESTAT NEW DELHI
Classification of services - Business Auxiliary services or otherwise - incentive received from M/s. LKP Financial Services - Held that:- “Business Auxiliary Service” does not cover the aforesaid activity of Money Changing Facility, while ‘Banking & Other Financial Services’ specifically covers ‘Money Changing Business’, that too w.e.f 16.05.2008, Nomenclating the very same under ‘Business Auxiliary Service’ for the purpose of charging service tax is therefore not proper and legal - the demand on account of foreign exchange of incentives from M/s. LKP Financial Services is liable to be set aside irrespective the commission received by appellant from M/s LKP for providing premises to render banking & financial services is taxable provided it had been so demanded - demand set aside.
Demand of service tax - Mandap keeper services - non-payment of service tax on the invoices where the tea/ snacks/ breakfast was served - Held that:- In the present case, the appellant hotel being registered as the Mandap keeper is providing the catering service. The invoices so raised by him show that the same were inclusive of charges of catering services. It is clear from the language of the notification that the nature of menu is not the criteria for availing the exemption but the menu served has to be substantial and satisfying - demand set aside.
Taxability - convention services - Held that:- While holding senior management meet, dealer meet, customer meet, medical conference etc the appellants were providing the services and that of convention services and not the Mandap keeper services. The fact that those meetings continued till late hours and liquor in addition was served there does not alter the fact that these still were the meetings for the specific group of people for the professional/ official objective and were not open to general public - The findings of the Commissioner are therefore opine incorrect to this effect - However, since the liability while treating them as Mandap keeper service had admittedly been already, discharged, the differential, if any, shall only be payable under this head order accordingly is set aside to this extent.
Taxability - 10% services charge/tips in the bills - Held that:- Section (65)67 defines Mandap keeper as a person who allows temporary occupation of a Mandap for a consideration for organizing any official, social or business function. For such services all such charges as are related to the use of a Mandap by a Mandap keeper are to be included towards gross amount and are chargeable to service tax as per the above said provisions - The appellant is admittedly providing the Mandap keeper services. Since 10 % of the service charge/ tip is also one of the charges of services included essentially towards providing the Mandap Keeper Service the same has to be included in the gross amount - demand upheld.
Taxability - services received from outside India - Held that:- Undisputedly, for the period 2003-04 and 2006-07, the amounts were remitted on account of services received on account of overseas travel agents (commission), advertisement sales paid to foreign parties including fees paid to international travel agent group for which participation of hotel is mandatory for securing business, payments made for participation in Frequent Flyer Programmes made outside India, Membership outside India i.e. all the services provided and consumed outside India. These servies came into tax net only w.e.f. 18.04.2006 - demand on this count has correctly been dropped by the Ld. Commissioner but only for the period prior 18.04.2006.
Time limit of issuing SCN - Held that:- It is apparent from record that the appellant had not paid the, whatever tax, by the prescribed date. They had not disclosed the amount paid towards these services till the date the audit was conducted. There is no communication on record seeking clarification on account of pleaded bonafide confession - the department was entitled to invoke the extended period of limitation.
Appeal allowed in part.
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2018 (12) TMI 1118 - BOMBAY HIGH COURT
Refund claim of service tax - validity of period of limitation of 6 months - exemption grated with retrospective effect - vires of Section 103 of the Finance Act, 1994 - Construction of Port Services - N/N. 25/2012ST dated 20.06.2012.
Held that:- Section 103 was introduced in the Finance Act, 1994 with a specific purpose of granting exemption from service tax of certain services with retrospective effect. This covers the period between 01.04.2015 to 29.02.2016. Since this exemption was granted with retrospective effect, the question of refund would arise. It is in this context, subsection (2) of Section 103 envisages refund of the tax already collected and deposited. Subsection (3) however, provides a limitation of making refund application and as noted starts with nonobstinate clause.
The period of limitation of six months for making the refund application is, therefore, notwithstanding anything contained in the chapter, in which the said provision is contained. Section 103 of the Act is thus a complete mechanism for recognition of exemption, refund of the tax so exempted with retrospective effect and the mechanism for claiming such refund. Such limitation period cannot be interpreted as merely directory, particularly when subsection (3) in addition to providing the period of limitation, overrides any other provisions of the chapter, which may be to the contrary.
Courts have often hold that period of limitation for claiming refund is mandatory - Further, the contention that subsection (3) of Section 103 retains the period of limitation of one year prescribed in the Excise Act and is aimed to protect such refund application which cover the period beyond such period, cannot be accepted.
Petition disposed off.
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2018 (12) TMI 1117 - CALCUTTA HIGH COURT
Composite works contract - liability of service tax - Jurisdiction - Held that:- One of the four works contract entered into by the petitioner between the period September 10, 2004 to June 15, 2005 being exigible to Service Tax on the ground that, they are indivisible works contract, the assumption of jurisdiction by the authorities is without any basis.
The impugned show-cause-cum-demand notice dated September 7, 2009 is quashed - appeal disposed off.
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2018 (12) TMI 1116 - CESTAT NEW DELHI
CENVAT Credit - Construction of the Hotel Building - Held that:- Issue decided in appellant own case M/S LEMON TREE HOTEL (CYBER HILLS DEVELOPERS PVT. LTD.) , M/S FLEUR HOTELS PVT. LTD. VERSUS CC, & CE, HYDERABAD-IV [2017 (7) TMI 799 - CESTAT HYDERABAD], where it was held that Input services includes the services used in relation to settingup, modernization, renovation of premises of provider of output services - the credit qua construction of hotel building of appellant allowed.
CENVAT Credit - commonly used input services - security services - Internet Services - Held that:- The appellants were rendering taxable services of cab operators convention service, Banking and Financial Service, Business Auxiliary Service, Internet café, restaurant service and accommodation services. The input service credit was availed by the appellant on the construction services which were used for setting up of the premises from where the output services were rendered by the appellant and on the internet café and security services for the same premises from where the output services were to be rendered by the appellant - in view of SRule 6 (5) thereof no question of denial and reversal of credit, therefore, at all arises - credit allowed.
Interest - Penalty - Held that:- Demand of interest as well as penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1115 - CESTAT NEW DELHI
Refund claim - time limitation - applicability of Section 11B of Central Exercise Act - Held that:- Hon’ble Apex Court in the case of Mafatlal Industries Limited Vs. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] as has been relied upon by the Larger Bench of this Tribunal in the case Veer Overseas Ltd. Vs. Commissioner of Central Excise, Panchkula [2018 (4) TMI 910 - CESTAT CHANDIGARH] wherein it was held that for entertaining the refund claim of the amount paid by mistake, the time limit prescribed under Section 11B of Central Excise Act, 1944 is not applicable.
Whether the refund claim in question is within one year of the time limit as prescribed under 11B? - Held that:- The appellant was not supposed to file the refund claim during the pendency of the Appeal. It stands clear that duty became finally refundable to the appellant only after the decision of the CESTAT and as per above said sub clause (ec) of Clause B, the claim could have been filed within one year form the date of this Tribunal Order i.e. till October 2017. The claim has been filed in March 2017. The same is therefore held to be well within the period of limitation.
Refund claim also rejected on the ground of non-submission of documents - Held that:- The service tax to the tune of ₹ 1,68,647/- was pre-deposited and the service tax to the tune of ₹ 3,05,124/- which was not initially admitted by the adjudicating authority but was subsequently allowed by Commissioner(Appeals). Thus, no more evidence, at all is required about the proof of payment of service tax as claimed vide the impugned refund claim - rejection on this ground is also not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1114 - CESTAT MUMBAI
Valuation - abatement - commercial or industrial construction service - residential portion of the complex - Held that:- It is clear from the proceedings that the nature of ownership of the land is not relevant and that taxability arises from any kind of agreement which does not involve outright sale that, admittedly, the present agreement is not. It, however, remains to be ascertained if the claim of the appellant to have completed the process of handing over before the date of applicability of the tax is allowable.
The matter remitted back to the original authority to verify the claims of the appellant - appeal allowed by way of remand.
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2018 (12) TMI 1113 - CESTAT CHENNAI
Classification of services - Business Auxiliary Service or not - rendering activities of collection of instalment / loan from the customers of the bank - time limitation - Held that:- Undisputedly appellants are acting in the capacity of collecting agents for ICICI Bank and they collect the dues payable by customers to such Banks on behalf of the Banks - As per the agreement dated 28.1.2005, the appellant has been appointed as mere collection agent. The agreement itself is named as ‘Collection Agreement’. The scope of the work is to act as collection agents of ICICI. Such activity would definitely fall under ‘Recovery Agent Service’. The demand under BAS for the period after 1.5.2006 therefore cannot sustain, the demand of service tax under BAS after 1.5.2006 is therefore set aside.
Time Limitation - Held that:- Though the department alleges that the appellant is guilty of suppression of facts, there is no evidence brought forth as to what is the positive act committed on the part of the appellant. The various documents show that the appellants have furnished the entire documents as requested by the department. In fact, the demand has been quantified basing upon the document produced by the appellant. There is no case for the department that appellant had been maintaining parallel records so as to evade payment of service tax - the department has failed to establish suppression of facts with intent to evade payment of service tax so as to invoke extended period. The appellant therefore succeeds on the ground of limitation.
Demand of service tax - reimbursable expenses - Held that:- The appellant has stated that these were expenses incurred by the appellant for obtaining demand drafts, courier expenses, travelling expenses etc. These are actual expenses incurred by the appellant which would fall under reimbursable expense - the demand on reimbursable expense cannot sustain and requires to be set aside.
The impugned orders are modified to the extent of setting aside the demands on BAS prior to 1.5.2006 on the ground of being time-barred - After 1.5.2006, the demand is set aside since the activity does not fall under BAS - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1112 - CESTAT NEW DELHI
Refund of service tax paid wrongly under the category of renting of immovable property - assesse claimed that the leasing of club (a business) does not fall in the meaning of word ‘immovable property’ - the appellant has been running the club by way of Joint Venture with AMPL, on principle to principle basis - revenue sharing - Revenue contended that, the club is a multiple use building and the service provided by the club were available only to members and their guests.
Held that:- In this agreement from the Revenue Sharing Formula and the mutual covenants as agreed between the parties, it is crystal clear that the appellant and AMPL intended to do the business of running of club on principle to principle basis. We further hold that the subsequent modification of the Revenue Sharing Clause between the parties does not change the colour and reduce the arrangement between he parties as that of landlord and tenant. In principle, the appellant has not delivered the possession of club to AMPL by way of tenancy but has only given the right to manage and operate the club for their mutual benefit, on principle to principle basis.
Refund claim - time limitation - Held that:- there is no application of Section 11 B of the Central Excise Act in grant of refund, in the facts of the present case following the precedent ruling in the case of Union of India Vs. ITC Ltd. – [1993 (7) TMI 75 - SUPREME COURT OF INDIA]. A tax wrongly realized or paid on in excess of what is permissible in law, is a realization made outside the provisions of the Act. Such amount cannot be retained by Revenue, being in conflict with Article 265 of the Constitution.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1111 - CESTAT AHMEDABAD
Extended period of limitation - penalty - Rate of tax - commercial coaching and training service - Contention of the department is that the appellant have collected advance amount towards coaching and training service whereas in the middle of the course session the service tax rate was revised from 8% to 10.2% - Held that:- The issue involved is interpretation of law that whether the service tax rate is applicable on the date of receipt of advance or on the date of providing the services - the issue being of interpretation of law, longer period of demand cannot be invoked, hence the demand for the extended period was set aside.
The demand for extended period and corresponding penalty will not sustain on limitation itself - appeal allowed in part.
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2018 (12) TMI 1042 - BOMBAY HIGH COURT
Maintainability of appeal - rejection of VCES Declaration - whether CESTAT was right in holding the Appeal as not maintainable in the Tribunal? - Held that:- An appeal under Section 85 of the Act, 1994 would lie against an order of rejection of a declaration passed by the Designated Authority under Section 106(2) of the Act, 1994.
Payment of amount of service tax before the date of declaration of the scheme i.e. 10 May 2013 vis-a-vis applicability of the scheme - Held that:- For a valid declaration two of the essential conditions were that the proceedings for either declaration or recovery of the tax dues should not be pending on 1 March 2013, and secondly, that the tax should not have been deposited before the said date. In the instant matter, both the conditions are fulfilled - It would be for the Appellate Authority to take a decision in the Appeal.
The matter stands remitted to the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench at Mumbai for taking a decision in accordance with the provisions of law and on its own merits - appeal allowed by way of remand.
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2018 (12) TMI 1041 - CESTAT HYDERABAD
CENVAT Credit - common input services which were used for both taxable and exempted services - Rule 6(3) of CCR 2004 - Held that:- As far as the services utilised in the Corporate Office on which they have taken the credit is concerned, there cannot be separate records for different projects (exempted and taxable). Therefore, the appellant had an option under Rule 6(3) of either reversing the proportionate amount of credit or paying 6% of the value of the exempted projects - impugned order upheld.
As far as other demands confirmed in the impugned order are concerned, the appellant concedes the same.
Penalties - Held that:- It is clear that the appellant has declared that they have maintained separate records in their return whereas they have not disclosed that they also are availing credit on common input services availed in the Corporate Office and have not reversed the proportionate amount of credit attributed to the exempted projects - penalty set aside.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 1040 - CESTAT CHENNAI
Construction service - period involved is 2006-2009 - Site formation and clearance service - real estate projects at Silver County, Platinum County and other projects - non-payment of service tax - non-filing of periodical ST-3 returns.
Construction service - period involved is 2006-2009 - Held that:- Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] and the decision of this very Bench in the case Real Value Promoters [2018 (9) TMI 1149 - CESTAT CHENNAI], the said activity will be exigible to service tax only under “Works Contracts Service” and not under Residential Complex Service as has been demanded in the impugned order. In view thereof, there is no hesitation in setting aside the demand of Rs. ? 83,77,188/- with interest thereon under the category of construction of residential complex service. The portion of the impugned order to the contrary demanding the aforesaid amount with interest thereon is set aside.
Site formation and clearance service - Held that:- The site formation and clearance activity has obviously been done by the appellant by themselves, for themselves. Further neither the agreement for sale had not seen light of the day, nor were the buyers visible on the horizon, at the time when the site formation etc of the land was carried out by the appellant - such activity was a self service and hence the same cannot be exigible to service liability under the Finance Act,1994 - Demand set aside.
Appeal allowed in toto.
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2018 (12) TMI 1039 - CESTAT NEW DELHI
Renting of immovable property - Tahbazari fee - liability of service tax - Held that:- Apparently and admittedly the authority is existing under the Municipal Act, 1960, as came into effect in furtherance of Article 285 of Constitution of India. Section 128 of the said Municipal Act clarifies that the amount received by the Nagar Nigam from the traders permitting them to carry out their activities within the municipal limits shall be collected in the form of the tax. The provision is sufficient to hold that the activity is intended to be a sovereign Act of the Nagar Nigam.
The authority below has wrongly considered it as a service being rendered by the appellant to the said traders. In such scenario, emphasis on the definition of “renting of immovable property” under the Finance Act has no more significance - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1038 - CESTAT ALLAHABAD
SEZ Unit - Refund of duty paid - N/N. 40/12-ST dated 20.06.2012 - Section 11A of the Central Excise Act, 1944 - Held that:- Inasmuch as the present impugned orders are by way of appeal proceedings against the denial of refund and inasmuch as in subsequent proceedings, such refund has been held to be admissible to the appellants, we find no merits in the impugned order of the Commissioner (Appeals) - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1037 - CESTAT CHENNAI
Non-payment of service tax - Manpower Supply Service - collection of Deputation Charges for the above said service during the period from 16.06.2005 to 31.03.2007 - service tax for 01.04.2007 from March 2009 was only paid - Held that:- Tribunal in the case of M/s. Turbo Energy Ltd. Vs. C.G.S.T. & C.Ex., Chennai Outer & vice versa [2018 (9) TMI 1729 - CESTAT CHENNAI] placing reliance in the case of CST Vs Arvind Mills Ltd. [2014 (4) TMI 132 - GUJARAT HIGH COURT], has held that subsidiary companies cannot be said to be client of holding company and the deputation of employees was only for and in the interest of the company; there is no relation of agency and client - demand set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1036 - CESTAT CHENNAI
Classification of services - real estate agent services or not? - whether the assessee is liable to pay service tax on the developmental charges received for the service rendered as ‘Real Estate Agent’ to the members of the Society?
Held that:- The appellant was indeed the seller of the housing plots to the members of the Co-operative society and had only received the sale consideration for the same without receiving any commission as Real Estate Agent thereof. Moreover, the developmental activities carried out by them would only be intended to fetch higher price for land and in any case, did not involve services to third parties - In any case, the appellant has sold the lands to the Co-operative Society at the rate of ₹ 136.36 per sqft. the same being the fixed rate of land by the statutory body.
It is not the case of the Revenue that there was any extra payment/receipt as commission, which is not booked or that there was any cash transaction (on-money) involved over and above the booked amount - the appellant cannot be considered as Real Estate Agent for an amount not received since they have only acted as a ‘seller’ of the said land by virtue of Power of Attorney.
The demand made under Real Estate Agent Service is unjustified - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 1035 - CESTAT MUMBAI
Classification of services - Import of service - Business Support Services or event management services? - event organized in Muscat relating to hiring equipment on rent for organizing the event in Muscat - it was alleged that the event organized by the appellant in UK and Muscat on 7.7.2006 and 24.4.2006 respectively was a part of their marketing strategy in promoting the channel and enlarge the subscriber base - reverse charge mechanism.
Held that:- Undisputedly the appellant had paid the amounts of ₹ 1,36,99,550/- for organizing the events named as “ETC/Loomba Trust Bollywood Concert”. The amount paid to the overseas providers of said services was alleged by the Revenue to fall under the category of “Business Support Service” in as much as the services are in the nature of “Operational Assistance for Marketing” and liable to service tax under reverse charge mechanism under Section 66A of the Finance Act, 1994.
The event was organized for the appellant by M/s. Concerto at UK, which involves various stages to make the event successful. The appellant paid service charges for undertaking the event by M/s. Concerto. Neither in the agreement nor in the invoices the object or purpose of the event reveals the role of M/s. Concerto was to promote the business or marketing of the appellant's channel. M/s. Concerto has carried out their job of organizing the event as per the agreement and the outcome of the event, whether increased customer base of the appellant or otherwise, is not their concern.
The appellant had not received services under ‘Business Support Services’, but the service rendered by M/s. Concerto is correctly classifiable under Even Management Service and since the entire service is performed outside India, hence not taxable.
Appeal allowed - decided in favor of appellant.
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