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Service Tax - Case Laws
Showing 81 to 100 of 3430 Records
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2018 (12) TMI 955 - CESTAT BANGALORE
Business Auxiliary Services - appellants received certain commission on an agreed basis from the hotels on the payment made by the customers - Held that:- The appellants are suggesting the names of the hotels to their customers to whom they are also booking travelling facilities and arranging for the itineraries. The appellants are receiving certain amounts from the hotels on the event of the customers checking into the hotels and paying room rents, etc. This activity certainly falls in the category of ‘Promotion or Marketing of service provided by the client’.
The definition of Promotion and Marketing submitted by the appellants relying on Webster’s Dictionary would not be of any help to them in view of the categorical and clear mention of Promotion or Marketing of service under Business Auxiliary Services - appeal dismissed - decided against appellant.
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2018 (12) TMI 954 - CESTAT BANGALORE
Valuation - inclusion of value received by the individual cable operators - clubbing the value of services provided by the individual cable operators - Held that:- The appellants formed an association and have registered themselves, as MSO/cable operators and have paid part of the tax liability. The demand of service tax is not only based on the statement of the Managing Partner but is also based on the records / registers retrieved during the investigation. Therefore, we find that there is no merit in the submissions made by the appellants.
The demand is confirmed and penalty under Section 76 is set aside and other portions of the order are upheld - appeal allowed in part.
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2018 (12) TMI 953 - CESTAT CHENNAI
Construction of Commercial or Industrial Complex Service - Construction of Residential Complex Service - period from November 2004 to May 2007 - period from February 2007 to September 2007 - Held that:- The liability of service tax in respect of the impugned services came to be tested in the case of M/s. Real Value Promoters Pvt. Ltd. [2018 (9) TMI 1149 - CESTAT CHENNAI], where it was held that The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service. For the period after 1.6.2007, service tax liability under category of ‘commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, ‘Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 952 - CESTAT CHENNAI
Interpretation of statute - Cargo Handling Service - scope of the service - Held that:- Admittedly, the word ‘cargo’ is not defined under the Act. The discussion of the adjudicating authority in the Order-in-Original makes it clear that as per the work order issued by M/s. CCCL to the assessee, the work assigned was handling of materials as per directions of M/s. CCCL within the factory premises of M/s. CCCL for loading raw materials such as coal and slag on to tippers for transportation. The above activity undertaken by the assessee is clearly on the goods as part of the production process.
The impugned service in the case on hand will not fall within the fold of Cargo handling Service since admittedly, the assessee was only assisting in loading raw materials and is not involved in the transportation of any final products as transportation is a must in the case of Cargo Handling.
The mere supply of men and materials per se coupled with the scope of work which limited to the work assigned by M/s. CCCL inside the factory premises, cannot be considered to be a service under Section 65 (23) ibid - appeal dismissed - decided against Revenue.
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2018 (12) TMI 951 - CESTAT CHENNAI
Construction services - sub-contract - Construction of Residential Complex Service - demand of tax with interest and penalties - Held that:- The issue decided in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI], where it was held that The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service. For the period after 1.6.2007, service tax liability under category of ‘commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, ‘Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter.
The impugned demands made in all these appeals for composite contracts under construction of residential complex instead of works contract cannot sustain - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 950 - CESTAT ALLAHABAD
Recovery of erroneous refund granted - Section 11A of the Central Excise Act, 1944 - Held that:- An identical issue of demand of erroneously granted refund in the same assessee’s case, was the subject matter of Tribunal decision in Commissioner of Central Excise, Customs & Service Tax, Noida V/s M/s Moser Baer Photovoltaic Ltd. & M/s Moser Baer Solar Ltd. [2018 (1) TMI 113 - CESTAT ALLAHABAD] laying down that the assessee was entitled to refund of service tax in terms of N/N. 40/12-ST dated 20.06.2012 - appeal allowed - decided in favor of assessee.
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2018 (12) TMI 949 - CESTAT CHENNAI
Demand of interest and penalties - non-payment of service tax - rent received - Held that:- There was delay in dispatch of the Order-in-Original and therefore the demand of interest cannot sustain. This argument is neither tenable nor acceptable. The demand of interest is correct and proper and therefore is upheld.
Penalty u/s 78 - Held that:- The appellant had not collected service tax from the tenants and that the matter was remanded by Commissioner (Appeals) to requantify the service tax liability giving cum-tax benefit. Taking note of this fact, it is established that the appellants were under the bonafide belief that they are not liable to pay service tax and were not collecting the service tax from the tenants. Further, there is no evidence to establish that they had suppressed facts with intention to evade payment of service tax - the penalty imposed under section 78 cannot sustain.
Penalty u/s 77(2) of FA - non-filing of returns within the stipulated period - Held that:- Since the appellant has later filed the returns and also paid the service tax and taking into consideration that the appellant is a Government wing, the penalty imposed under section 77(2) cannot sustain and requires to be set aside.
Appeal allowed in part.
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2018 (12) TMI 948 - CESTAT ALLAHABAD
Extended period of limitation - suppression of value of the services - Section 73 of Finance Act, 1944 - Held that:- The provisions of Section 73 of the Finance Act, 1994 provides for raising of demand only up to 5 years, even if in case of any suppression on the part of the assessee - In the absence of any authority to raise the demand beyond the period of 5 years, the contentions of the learned advocate is agreed and it is held that the demand could have been raised and confirmed only for the period of 5 years from the relevant date.
Matter remanded to the Original Adjudicating Authority for quantification of the demand falling within the period of 5 years from the date of issuance of SCN - appeal allowed by way of remand.
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2018 (12) TMI 947 - CESTAT CHENNAI
Import of services - Clearing and Forwarding Services (C&F services) - services performed outside India - Rule 3(ii) of the Taxation of Services (provide from outside India and received in India) Rules, 2006 - Reverse charge mechanism - Held that:- There is no dispute that the service is provided outside the territory of India, but the Revenue wants to tax the assessee since it collects sale proceeds in India. But the legislature in its wisdom, has framed Rule 3(ii) to encourage exports and in turn foreign exchange remittances - the activity of the appellant being wholly performed outside India, is excluded from service tax liability as per Rule 3(ii) of the Taxation of Services (provided from outside India and received in India) Rules, 2006.
On an identical set of facts this very Bench of the Tribunal in the case of M/s. Bnazrum Agro Export Pvt. Ltd. [2018 (4) TMI 1239 - CESTAT CHENNAI] has held that such activity would not be exigible to service tax by virtue of Rule 3(ii) of the Rules.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 946 - CESTAT CHENNAI
Commercial Coaching or Training Service on computer training Service - period of dispute is from 01.07.2004 to 15.06.2005 - demand of service tax - Held that:- Issue decided in the case of M/S GARGI CONSULTANTS PVT. LTD. VERSUS CCE, ALLAHABAD [2013 (5) TMI 695 - CESTAT NEW DELHI], where it was held that a computer training institute is covered by the expression vocational training institute and as such, was exempted from service tax - demand of ₹ 7,13,334/- with interest for the period from 10.09.2004 to 15.06.2005 is set aside on the ground of limitation - However, the demand for the previous period namely from 01.07.2004 to 09.09.2004 amounting to ₹ 1,02,200/- with interest thereon which has already been conceded by the Ld. Advocate, is upheld.
Valuation - inclusion of value of course materials for the purpose of arriving at value of taxable service - Held that:- Reliance placed in the case of CHATE COACHING CLASSES PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, AURANGABAD [2012 (6) TMI 721 - CESTAT, MUMBA], where it was held that since the expression is not used in the notification and the fact that the books sold are of another entity, we do not find any reason to deny the benefits of the Notification No.12/2003-ST - the demand of ₹ 45,919/- for supply of study materials for the period 2004-05 and 2005-06 cannot sustain.
Franchisee Service - Renting of Immovable Property Service - Demand of service tax - Held that:- the demands of service tax under Franchisee Service amounting to ₹ 1,23,927/- and Renting of Immovable Property Service amounting to ₹ 1,57,598/- with interest have already been conceded by the Ld. Advocate and are therefore upheld. The appellants will be required to pay up these liabilities also with interest thereon.
As the demand of ₹ 7,13,334/- for the period 10.09.2004 to 15.06.2005 under Commercial Coaching or Training Service and ₹ 45,919/- in respect of tax liability on value of course materials have been set aside, the penalties under Section 78 ibid is also modified - The total penalty imposed under Section 78 ibid., is therefore required to be reduced/modified to ₹ 3,83,725/-.
Appeal allowed in part.
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2018 (12) TMI 945 - CESTAT BANGALORE
Classification of services - Club or Association Membership Service or not? - services provided to independent customers and not the members - appellants are engaged in providing various club facilities to their members - Held that:- The appellant is a private limited company which is engaged in operating and managing ‘Palm Meadows’ club and the Members of the said club are not the members in the strict sense but they are customers of the appellant - the Members of the private limited company are different from the customers. The activities carried out by the appellant does not fall in the definition of ‘Club or Association Membership Service’ as provided in Section 65(25a) of the Finance Act, 1994 - Further, the scope of ‘Club or Association Membership Service’ have been discussed and clarified vide Board Letter MD(DR) F No. B1/6/2005-TRU dated 27.7.2005. It is clarified vide the said Circular that any service provided or to be provided to its Members by any Club or Association in relation to provision of services, facilities or advantages for a subscription or any other amount are liable for service tax.
In the present case, the service recipients are totally independent person and they are only the customers who avail services of the appellant independently under the scheme formulated by the appellant. Further, the appellants are not paying the service tax on the entrance fee and are paying service tax with regard to all other services provided by them and it has been admitted by the Manager of the Company in its statement recorded during the investigation.
The activities carried out on by the appellant does not fall in the definition of ‘Club or Association’ service - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 944 - CESTAT MUMBAI
Non-payment of Service Tax - Commercial Coaching and Training Services - period from 1.4.2011 to 31.3.2013 - demand of service tax on other income shown in the balance-sheet for the year 2011-12 relating to various services on which Service Tax not paid invoking the extended period of limitation.
Non-payment of Service Tax on commercial coaching and training services for the normal period of limitation - Held that:- The judgment of this Tribunal in appellant own case [2017 (10) TMI 710 - CESTAT MUMBAI] for the period 2006-07 to 2010-11 is squarely applicable, wherein this Tribunal upheld the adjudication order dated 30.3.2013 confirming the levy of Service Tax on the services of awarding Graduate/ PG Diploma relating to design management course by the appellant observing that it is taxable under category commercial coaching and training services - there is no justification or reason in not following the aforesaid finding of the Tribunal in the appellant's own case that the services rendered by the Appellant are in the nature of commercial training or coaching services and leviable service tax for the period in question.
Other income shown in the balance-sheet for the year 2011-12 relating to various services on which Service Tax not paid invoking the extended period of limitation - Held that:- All the information available in the balance-sheet under the head 'other income' was available to the department and while issuing the second show-cause but no objection was raised by the Revenue. We find merit in the contention of the Ld. Advocate for the Appellant - invoking longer period of limitation confirming the demand of ₹ 3,88,762/-, on 'other income' is untenable in law, hence, set aside.
Penalty u/s 78 - Held that:- Since the preset demand notices were issued as a continuation to the earlier notice invoking larger period of limitation and the present demand notices are for normal period of limitation, therefore, imposition of penalty under Section 78 cannot be sustained against the appellant - penalty u/s 78 set aside.
However, penalty and interest imposed under the other provisions of the Finance Act, 1994 are hereby upheld.
Appeal allowed in part.
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2018 (12) TMI 943 - CESTAT MUMBAI
Condonation of delay of 15 days in filing the appeal - authorized signatory was unavailable - Held that:- The delay is condoned - MA (COD) is allowed.
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2018 (12) TMI 942 - CESTAT KOLKATA
Penalty - computer training and coaching services providing by a computer training institute - N/N. 9/2003-Service Tax dated 20.06.2003 & 01/2004- Service Tax dated 04.02.2004 - Held that:- The appellant requests that there was a confusion during the relevant time about the taxability of the services provided by them. These views have been held by various judicial pronouncements that where-ever there was confusion about the taxability of service, the imposition of penalty is not warranted - penalty set aside - appeal allowed in part.
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2018 (12) TMI 941 - CESTAT MUMBAI
Failure to discharge service tax - classification of services - supply of tangible goods services or convention services - Circular dated 29.2.2008 - time limitation - Held that:- The sound systems, LCD projector etc. supplied by the appellant used in organizing various events cannot come within the scope of convention service, but correctly falls under the scope of tangible goods service.
The learned Commissioner (Appeals) in the impugned order analyzing the circular dated 9.7.2001 recorded its finding in holding that the same is not applicable to the facts of the present case inasmuch as in the said circular, it was clarified that while providing space for holding convention service, any other ancillary services are also provided then such ancillary services cannot in any manner dilute the classification of the services as 'convention service'.
Time limitation - Held that:- Since the assessee though registered with Service Tax Department for other services namely, erection commissioning and installations services and paying Service Tax regularly with respect to the said services by filing the ST-3 returns, but never indicated the facts of providing supply of tangible goods services nor disclosed its value to Department, therefore, extended period of limitation is applicable to the appellant's case.
In absence of any contrary evidence placed by the appellant rebutting the said findings of the learned Commissioner (Appeals), the impugned order is upheld - appeal dismissed.
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2018 (12) TMI 940 - CESTAT KOLKATA
Principles of Natural Justice - CENVAT Credit - case of appellant is that the allegation of department of excess credit availed is imaginary and not supported by any evidence - Held that:- The Commissioner had not considered several aspects and evidences on record. The impugned order is accordingly liable to be set aside - matter remanded to the adjudicating authority to decide the matter afresh and to pass order in accordance with law - appeal allowed by way of remand.
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2018 (12) TMI 934 - MADRAS HIGH COURT
Abatement claim - receipt of payment after 1.6.2007 - whether the Tribunal was right in allowing the appeals filed by the assessee without verifying the claim of the assessee that they completed the services prior to 01.6.2007 and consequently, they are entitled for abatement? - Held that:- The matters are remanded to the Adjudicating Authority to verify as to whether the assessee is entitled to the benefit of the decision of the Hon’ble Supreme Court in the case of Larsen & Toubro Limited [2015 (8) TMI 749 - SUPREME COURT] and examine as to whether the assessee has completed the services prior to 01.6.2007 though payments were received by the assessee after the said date - appeal allowed by way of remand.
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2018 (12) TMI 877 - PUNJAB AND HARYANA HIGH COURT
Permission to withdraw the appeal - Held that:- The appeal is dismissed as withdrawn - It shall, however, be open to the petitioner to take recourse to the remedies as may be available to it, in accordance with law.
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2018 (12) TMI 876 - BOMBAY HIGH COURT
Demand of service tax - Freight charges - extended period of limitation - penalty - Held that:- The arrangement arrived at between the appellant and its dealers was so as to reduce the payment of service tax obligation of the appellant. This factual finding of the authorities was based on detailed scrutiny of the invoices and documents, in particular, the ledger account maintained by the appellant which shows the amount, which was reduced from the invoice is also accounted as freight reimbursement. It was in these facts that the authorities have held that the freight paid by the dealers was for and on behalf of the appellant. Thus, the appellant would be liable for payment of service tax.
Extended period of limitation - Held that:- Once the authorities have found on facts that there was an arrangement arrived at between the parties so as to reduce the payment of service tax, invocation of extended period of limitation cannot be faulted with - extended period rightly invoked.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 875 - CESTAT BANGALORE
Valuation - includibility - inclusion of value of reinforcement steel and cement received free of cost in assessable value - N/N. 1/2006-ST dated 1.3.2006 - Held that:- Explanation (c) to Section 67 only provides for the modes of payments of book adjustments by which the consideration can be discharged by the service recipient to the service provider. It does not expand the meaning of the term “gross amount charged” to enable the department to ignore the contract value or the amount actually charged by the service provider to the service recipient for the service rendered - the value of the items supplied by the customers to the service provider on FOC basis is not includable in the taxable value of the service - demand set aside.
Levy of equal penalty - Held that:- The appellants are big players in the field of construction. They cannot claim themselves to be at par with common man with average intelligence as claimed - appellant have not made any case to show the absence of mala fide intention - penalty imposed is restricted to 25% i.e. ₹ 8,19,008/-.
Appeal allowed in part.
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