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Service Tax - Case Laws
Showing 1 to 20 of 890 Records
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2022 (12) TMI 1507 - SUPREME COURT
Classification of services - Works Contract Service or not - Construction / Building of Multi-Level Car Parking (MLCP) built by the appellant at New Delhi Airport (Terminal-III) - it was held by CESTAT that the Multi-Level Car Parking (is an amenity primarily for passengers), is adjacent to the main terminal building and the same is the part of aerodrome/ airport.
HELD THAT:- The delay is condoned - appeal dismissed.
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2022 (12) TMI 1489 - CESTAT MUMBAI
Rejection of Refund claim - appellant acted as intermediary or not - providing sales promotion and other sales support services to its associated company, located outside India - entire output services provided by the appellant were exported to its associated company - HELD THAT:- It cannot be said that the appellant has acted as an intermediary in the dealings between the overseas entity and their customers in India. To qualify as an intermediary, service as per the statutory provision, the essential element for consideration is that the parties to the contract should act as principal-agent and that the agent shall be in a position to represent and bind the principal. On reading of the clauses in the agreement vis-à-vis the statutory provisions, it is abundantly clear that the services provided by the appellant to the overseas entity qualify as export in terms of Rule 6A of the Service Tax Rules, 1994 read with Rule 3 of the Place of Provision of Services Rules, 2012.
By reading the contents of the said agreement dated 14.09.2009 entered into between the appellant herein and the self same overseas entity, this Tribunal in the case of the appellant itself, M/S CHEVRON PHILLIPS CHEMICALS INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, MUMBAI EAST [2019 (12) TMI 1066 - CESTAT MUMBAI] has held that the appellant cannot be termed as an intermediary.
There are no merits in the impugned order passed by the adjudicating authority in confirming the adjudged demands on the appellant - appeal allowed.
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2022 (12) TMI 1440 - CESTAT AHMEDABAD
Classification of services - Supply of Tangible Goods Service - leasing out Power Generating and Heat Recovery Equipments to various parties under various Lease Agreements - transaction between the Appellant and its customers would involve the transfer of right of possession and effective control or a transfer of right to use or not - HELD THAT:- The appellant supplies Power Generating Equipments / gas genset (Plant) to Customers on standby charges and variable charges basis under the agreement. We find that during the subsistence of the agreement, the lessee alone has the right to use the Plant and even the Appellant cannot trespass that right of the lessees/ customers. The Lessees fix the pattern in which the plant is to be used and the time when it will function. All the permission to be obtained from the statutory authorities to be obtained such as Electrical, Pollution, CCR have to be taken by the Customers, the lessee shall ensure the safety of the plant in a manner similar to its own plant. Customers have to provide fuel, Jacket water & feed water, the site and other facilities.
On going through the clauses of agreement, it is found that the appellants had handed over the "Goods‟ possession to the lessee as also the right to use. Therefore the transaction of appellant does not satisfy the condition of “without transferring right of possession and the effective control of such machinery, equipment and appliances”. Hence the activity does not fall under the definition of “Supply of tangible goods for use”.
The adjudicating authority has held that since as per contract the equipment will remain sole property of equipment provider and skilled manpower supplied by the Appellant are responsible for maintenance operations of gas genset/plant, it is clear that the legal right and effective controls rests with the appellant - There is separate service agreement entered between the Appellant and customer under which various services are provided on which service tax has been discharged by the Appellant. Once the control and possession of gas genset/equipments was transferred to the customers, mere supply of manpower for maintenance will not change the nature of the transaction. All these factors are to be taken into consideration while determining the nature of service. Therefore finding of the impugned orders in present matters legally not correct.
The transfer of right to use gas genset/ plant on lease charges basis is a deemed sale in terms of Article 366(29)A of the Constitution, which is exclusive from service. Since the nature of transaction under dispute is deemed sale, no service tax can be demanded, as held in various judgments and relied upon by the Appellant in the present matter.
The demand raised cannot sustain and requires to be set aside - Appeal allowed.
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2022 (12) TMI 1336 - MADRAS HIGH COURT
Exemption from Service Tax - work contract service other than those which are commercial in nature rendered to the Central / State Government, Local Statutory Authorities etc. - Entry 12(a), (c) & (f) in Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012 - validity of Notification No.6/2015-Service Tax, dated 01.03.2015 - HELD THAT:- Chapter-V of the Finance Act, 1994 contains the provisions for levy and collection of service tax on services. There was no standalone enactment for levy of service tax all through of its period of existence. Since its introduction, it was under Chapter V of the Finance Act, 1994 - Service Tax was chargeable at the rates prescribed under Section 66 of the Finance Act, 1994 on the “taxable value” under Section 67 of the Finance Act, 1994. Upto 30.06.2012, there were specific definitions for various services and taxable services in Chapter V of the Finance Act, 1994.
Service tax on “Works Contract Service” was introduced in the Finance Act, 1994 with effect from 11.05.2007 and made liable to tax with effect from 01.06.2007 vide Notification No.23/2007-ST dated 22.05.2007 after Section 65(105)(zzzza) came to be introduced in the Finance Act, 1994 vide the Finance Act of 2007. Thus, for the period starting from 01.06.2007 to 30.06.2012, the respective petitioners may have been liable to service tax for the services rendered by them in relation to “works contract” - In fact, prior to that, a confusion existed in view of levy of service tax on “construction service” vide Finance (No.2) Act, 2004 with effect from 10.09.2004 as in Section 65(105)(zzzza) read with Section 65(25b) & 65(30a) and Section 65(105)(zzzh) read with Section 65(91a) of the Finance Act, 1994 (Chapter V of the Finance Act, 1994).
The Hon’ble Supreme Court has clarified the position in its judgment in M/S. KONE ELEVATOR INDIA PVT. LTD. VERSUS STATE OF TAMIL NADU AND OTHERS [2014 (5) TMI 265 - SUPREME COURT] that the services provided under “works contracts” was liable to service tax only with effect from 01.06.2007.
Services provided by these petitioners were “declared services”. Thus, the services provided by these petitioners would have been liable tax at 12% on the taxable value and later at 14% vide Notification No.14/2015-ST, dated 19.05.2015 with effect from 01.06.2015 but for the exemption vide Entry 12(a), (c) & (f) to Mega Exemption Notification No.25/2012-ST, dated 20.06.2012 - services provided by these petitioners were exempted from payment of service tax vide Entry 12(a), (c) & (f) to the Mega Exemption Notification No.25/2012-ST dated 20.06.2012.
The exemption under the Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012 which was granted in the exercise of power under Section 93(1) & (2) of the Finance Act, 1994 (Chapter V of the Finance Act, 1994) was withdrawn vide the impugned Notification No.6/2015-Service Tax, dated 01.03.2015 with effect from 01.04.2015. The exemption which was earlier granted in the public interest was withdrawn in the public interest - Whether public interest existed or not in withdrawing the exemption is not justiciable unless it is found that such withdrawal was vitiated on account of malafide, extraneous consideration or arbitration. High Court while exercising its jurisdiction under Article 226 of the Constitution of India does not sit in appeal over the decision of the Government to withdraw a Notification or an exemption. It is further a policy decision of the Government to withdraw the exemption.
The prayer for a direction to refund of tax already paid by the petitioner also cannot be countenanced as these petitioners are liable to tax. Therefore, wherever the Orders-in-Original have been passed, the respective petitioners are given liberty to file statutory appeal before the Appellate Authority subject to the compliance of the other requirements of pre-deposit the amount as is contemplated under Section 35F of the Central Excise Act, 1944 as made applicable to the Finance Act, 1994, within a period of thirty (30) days from the date of receipt of a copy of this order.
Petition dismissed.
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2022 (12) TMI 1335 - CESTAT NEW DELHI
Rejection of refund claim - section 11B of the Excise Act - finalization of provisional assessment - principles of unjust enrichment - HELD THAT:- In the present case, it is not in dispute that the appellant had made a request for provisional assessment in terms of rule 6(4) of the 1994 Rules and such permission was granted to the appellant. It filed returns on provisional basis and, thereafter, the assessment was finalized by the department on 21.06.2011, raising a demand of Rs. 8,71,249/- as the tax liability was found to be more than what was covered by the amount reflected in the challans. The department has calculated the period of one year from which the refund claim could have been filed under section 11B of the Excise Act from the date of finalization of the assessment i.e. 21.06.2011, in terms of clause B(eb) of the Explanation to section 11B of the Excise Act. According to the appellant, refund could not have been claimed on the basis of this finalization of the assessment on 21.06.2011, as it was the appellant which had to pay an excess amount of Rs. 8,71,249/- towards the tax.
Against the finalization of the assessment carried out on 21.06.2011, the appellant had filed an appeal before the Commissioner (Appeals) and this appeal was allowed by order dated 17.10.2012. The demand of service tax was set aside for the reason that the appellant had deposited more tax as the chart indicated that the appellant had paid an excess amount of Rs. 71,88,504/- towards the tax liability.
The Adjudicating Authority and the Commissioner (Appeals) both calculated the limitation of one year for filing the refund claim under section 11B of the Excise Act from the date of final assessment i.e. 13.07.2011 and, accordingly, rejected the refund claim. Clearly an error was committed in arriving at such a conclusion for no refund could have been claimed by the appellant pursuant to the final assessment made on 13.07.2011 and it is only when the Commissioner (Appeals) passed the order on 17.10.2012 that the refund could be claimed by the appellant. The provisions of clause B (ec) and not (eb) of the Explanation to section 11B of the Excise Act would be attracted to the facts of the present case - the assessment can be said to have been finalized only when the Commissioner (Appeals) passed the order and for this reason also the relevant date would be 17.10.2012 and not 13.07.2012.
Principles of unjust enrichment - HELD THAT:- It is not possible to accept the reasoning given by the Commissioner (Appeals). As noted above, the appellant was discharging its service tax liability on provisional basis, in terms of rule 6(4) of the 1994 Rules by computing the tax liability on the projected receipts for each month. It was, however, found that the actual premium collected was lower than the amount of taxable value assessed in the provisional return. Refund of tax would accrue in such a situation. There can be no question of passing the tax burden to the customers as tax was paid on a higher value and it is the balance amount of tax that was claimed by the appellant in the refund application. It cannot, therefore, be urged that the burden of tax had been passed to a third person.
The order passed by the Commissioner (Appeals) rejecting the refund claim cannot be sustained and is set aside. The appellant is entitled to refund of an amount of Rs. 71,88,504/- with interest, which shall be calculated in accordance with law - Appeal allowed.
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2022 (12) TMI 1334 - CESTAT AHMEDABAD
Imposition of penalty under Section 76,77 and 78 of the Finance Act, 1994 - benefit of Section 80 of FA - HELD THAT- It is seen that the Hon’ble High Court of Punjab & Haryana in the case of CCE VERSUS FIRST FLIGHT COURIER LTD. [2011 (1) TMI 52 - PUNJAB AND HARYANA HIGH COURT] has observed that Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78.
In view of that penalty under both Section 76 and Section 78 cannot be imposed simultaneously.
Moreover, it is seen that the penalty under section 77 has been imposed for an offence pertaining largely to period prior to removal of limit of Rs one thousand from Section 77 (w.e.f 10.05.2008. In view of this respect the penalty under section 77 is also not sustainable. It is also noticed that the appellant has paid service tax before issue of SCN. The issue of taxability of stadium under CICS The matter of dispute at the material time.
Keeping in view the above facts invoking Section 80, the impugned penalty under section 76,77 and 78 are set aside - appeal allowed.
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2022 (12) TMI 1333 - CESTAT AHMEDABAD
Refund of excess Service tax paid - rejection on the ground of limitation that the refund claim was filed on 07.2.2019 consequent to the OIA dated 13.10.2017 - HELD THAT:- The letter dated 15.1.2019 filed by the appellant is admittedly not a refund claim whereas, the refund claim was filed on 24.8.2016 which was well within time. Since the refund was rejected, the appellant has taken the matter upto the learned Commissioner (Appeals) and it is that refund which was to be decided by learned Commissioner (Appeals). The refund was supposed to be given by the department on the basis of learned Commissioner (Appeals) order. Even the letter from the appellant was not required moreover, the letter dated 29.1.2019 is not a refund application therefore, the entire basis for rejecting the refund claim being time barred is devoid of merit and fact. Since the appellant is legally entitle for refund on the basis of OIA dated 13.10.2017, the appellant’s refund claim is not time barred.
Appeal is allowed.
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2022 (12) TMI 1297 - CESTAT HYDERABAD
Taxablity - services of healthcare or predominantly cosmetic in nature or not - Melasma - Birth Mark Treatment - Hypertrichosis Treatments - Hair Laser Comb Treatment - time limitation - HELD THAT:- The appellant undertakes diagnosis, which is an art and act of diagnosing disease by symptoms and thereafter prescribing the necessary remedial treatment, diagnosis is not a simple guesswork. The appellant clinics employs qualified doctors who have completed post graduation in Dermatology. The appellant first undertakes a diagnosis of a new patient, which is done by the qualified Dermatologist for which they collect consultation charges. Pursuant to diagnosis, treatment is prescribed, the appellant clinic also prescribed the preventive measure and/or post treatment precaution. Preventive care means a measure taken to prevent disease from occurring or recurring rather than curing it. The appellant clinics are ‘clinical establishment’ involved in Alopathy treatment, which is a recognised system of medicine in India. The appellant have been held to be clinical establishment by the Court below - the services provided by the appellant, save and except for ‘hypertrihosis treatments’ and ‘hair laser comb treatment’ fall under healthcare services and are accordingly exempt under Notification No. 25/2012-ST.
Services rendered by the appellant assessee in respect of Hypertrichosis Treatments and Hair Laser Comb Treatment are held taxable under “Cosmetic and Plastic Surgery” service.
Invocation of extended period of limitation - HELD THAT:- The appellant had maintained proper records of the transaction and has taken registration under the provisions of Service Tax and were making regular compliances. Few returns were pending for which plausible explanation has been given being non-availability of the concerned staff. The appellant has regularly deposited their admitted taxes and have also paid tax and filed pending ST-3 returns during the course of investigation. The demand has been raised by the Revenue based on the accounts and records maintained by them. Accordingly, the extended period of limitation is not invocable.
Levy of penalties - HELD THAT:- As there is no suppression of facts with malafide intention to evade payment of service tax, penalty under Section 78 is set aside - the penalty of Rs. 10,000/- imposed under Section 77 of the Finance Act, 1994 for filing ST-3 late, is upheld.
Appeal disposed off.
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2022 (12) TMI 1296 - CESTAT MUMBAI
VCES scheme - Non-issuance of notice of rejection - Recovery of service tax alongwith interest and penalty - Non-payment of service tax due on the GTA services availed by them under reverse charge mechanism during the period April 2008 to March 2013 - failure to take service tax registration and failure to file returns as required under law - HELD THAT:- The VCES scheme has provided itself contents and has been explained by the Board in terms of various circulars issued. Once a declarant files a declaration admitting the tax liability for the period upto December 2012 in Form VCES-1, Revenue has to issue the acknowledgment in VCES-2 or reject the same by issuing a notice to the declarant. If no such rejection is done, the declarant proceeds to make the payment of the declared liability and intimates to the concerned designated authority who issues the final discharge certificate in Form VCES-3. In the present case it is not even the case of the Revenue that VCES declaration filed by the appellant has been rejected or even a notice for such rejection has been issued. It is settled law that the notice for rejection of the declaration has to be issued within thirty days as per Board Circular No 174/9/2013-ST.
In absence of any such notice for rejection, it is but natural that appellant would act as per VCES-2 issued to him acknowledging the declaration. Appellant paid the declared liability and intimated the designated authority of the payment made. Even then the designated authority has not issued the settlement memo under Form VCES-3. Appellant cannot be faulted for the reason as stated in the impugned order.
Section 111 of the Finance Act, 2013 clearly provides that in case there is some liability or the declaration made is found to be improper substantially, then a show cause notice for confirming the additional tax liability would be issued under Section 111. No such notice has also been issued. In absence of notice under Section 111, there cannot be a case for rejection of the declaration made by the appellant under VCES scheme. It is for the Revenue/designated authority to issue VCES scheme and failure to issue the same cannot be the ground for proceeding against the appellant. Revenue should set its record right.
Demand made for the period January 2013 to March 2013 - HELD THAT:- The appellant paid the entire amount even prior to issuance of show cause notice. The benefit of Section 73(3) of the Finance Act, 1994 should have been extended to them by not issuing the show cause notice. As all amounts were paid prior to the issuance of show cause notice, the proceedings initiated cannot survive in terms of Section 73(3) of the Finance Act, 1994.
Appeal allowed.
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2022 (12) TMI 1241 - CESTAT MUMBAI
Maintainability of appeal - requirement of pre-deposit has not been complied with before filing of the appeal - HELD THAT:- Learned Commissioner (Appeals) vide paragraph 4 and 5 in the impugned order has acknowledged the fact that the pre-deposit of 7.5% was made by the appellant under the CGST Act in form DRC-03. However, such payment was not considered by the first appellate authority for the purpose of entertaining the appeal and accordingly, the appeal filed by the appellant was dismissed by him.
On perusal of the case records, it is found that the Learned Commissioner (Appeals) has not discussed the merits of the case and simply rejected the appeal on the ground of noncompliance with the requirement of pre-deposit. Since merits of the case have to be decided by Commissioner (Appeals), the matter is remanded to him for deciding the appeal afresh on the basis of available records and submissions to be made by the appellant. Needless to say, that opportunity of hearing should be granted to the appellant before deciding the issue afresh - appeal allowed by way of remand.
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2022 (12) TMI 1195 - GUJARAT HIGH COURT
Voluntary payment pursuant to declaration in SVLDRS-1 in 12 equal monthly installments - Circular 1071/4/2019 dated 27.08.2019 - contravention of Section 73 of the Finance Act - HELD THAT:- The notice issued by the respondent No.2 under Section 87, according to the petitioner, is in contravention of Section 73 of the Finance Act since there is a mandate to adjudicate and the amount declared as voluntary disclosure of the petitioner cannot be taken as a final amount without any adjudicatory process.
Mr.Hemani assisted by the learned advocate, Ms.Vaibhai Parikh, who has drawn our attention to the Circular 1071/4/2019 dated 27.08.2019 to say that in case of the voluntary disclosure of duty not paid, the full amount of disclosed duty would have to be paid. However, there is nothing to say that the interest and penalty would be automatic and any recovery can be made without adjudication.
Issue Notice and Notice as to interim relief as well, returnable on 22.12.2022.
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2022 (12) TMI 1194 - BOMBAY HIGH COURT
Maintainability of appeal - appropriate forum - classification of services - Business Auxiliary services or not - HELD THAT:- The issue, therefore, that arises for consideration is essentially within the realm of valuation of services rendered by the respondent in booking Cargo on a commission basis under the head ‘Business Auxiliary Services”. The issue is thus of valuation and the remedy in terms of Section 83 of the Finance Act, 1944 read with Section 35 (G)(1) and Section 35 (L)(1)(b) of the Act, would not lie before this Court, but would be by way of an appeal before the Hon’ble Supreme court.
We are fortified, in taking this view by a judgment of this Court rendered in THE COMMISSIONER OF SERVICE TAX, MUMBAI VII, MUMBAI VERSUS M/S. GREENWICH MERIDIAN LOGISTICS (I) PVT. LTD. [2018 (9) TMI 1893 - BOMBAY HIGH COURT] which holds that the remedy in a matter concerning the issue of valuation is by way of filing an appeal in terms of the above provisions of law before the Hon’ble Supreme Court. The appeal before us is therefore not maintainable.
The appeal is dismissed for want of maintainability.
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2022 (12) TMI 1193 - CESTAT AHMEDABAD
Refund claim - rejection on the ground that the input services are not approved as per the approval list by the approval committee of SEZ - N/N. 15/2009- ST dated 20.05.2009 - HELD THAT:- As per the facts of the present case the refund claim is pertaining to the period March to May, 2009 and the appellant had applied and the approval was given by the Approval Committee in September, 2009. Even though belatedly the facts remains that the input services were approved by the Approval committee. Without prejudice, it is found that this issue is no longer res- integra as in various judgments this Tribunal has expressed clear view that the approval of input services by the approval committee is only a procedural requirement and due to this procedural lapse refund cannot be rejected.
The issue is no longer res-integra in as much as it was held that due to non approval of input services refund cannot be rejected under Notification No. 15/2009 –ST dated 20.05.2009. Accordingly, the refund is not liable to be rejected on this ground. As per the learned AR Commissioner (Appeals) has not given finding on the time bar therefore for this purpose the matter is remanded to the Commissioner (Appeals) to give finding on the issue of time bar.
The appeals are allowed by way of remand to the Commissioner (Appeals).
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2022 (12) TMI 1192 - CESTAT MUMBAI
Refund claim - rejection of claim on the ground of nondisclosure of availment of Cenvat Credit in ST-3 Returns - Rule(5) of Cenvat Credit Rule, 2004 read with Notification No. 27/2012 – CE(NT) dated 18/06/2012 - HELD THAT:- Time and again in series of decisions this Tribunal has repeatedly held that non-mentioning of the credit availed in ST-3 return is only a procedural lapse for which the substantial relief cannot be denied to the assessee but despite that the lower authorities seem to be adamant in not taking cognizance of the views of the Tribunal. In the instant matter, when the appellant realized their mistake they immediately, vide letter dated 16/06/2017, intimated the said mistake / discrepancy to the authority before whom the refund claim was filed by them and requested the said authority to accept the duly corrected/ rectified ST-3 returns manually for the period April, 2016 to September, 2016 but the said authority vide letter dated 16/06/2017 turned down the said request and rejected the refund claim merely on the basis of non-disclosing the availment of credit in ST-3 returns. Learned Commissioner also followed the same without applying his independent mind to the issue and without looking into the settled legal position as laid down by this Tribunal in number of decisions.
In the instant matter, the mistake committed by the appellant is merely a procedural lapse which they tried to rectify immediately thereafter but were not permitted and substantial relief was denied to them, which is not permissible in law. Admittedly the ST-3 Returns manually filed by the Appellants were not verified as the same were not accepted by the authority below - the justice demands that the impugned order be set aside and the matter be remanded to the Original Authority for deciding the issued afresh after verification of ST-3 returns filed by the appellant manually.
The matter is remanded to the Original Authority in order to decide the issue afresh - Appeal allowed by way of remand.
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2022 (12) TMI 1191 - CESTAT MUMBAI
Levy of penalty - discharge of entire service tax liability prior to the issuance of any show cause notice and the appellant - reverse charge basis in respect of business auxiliary services received from abroad - HELD THAT:- If Commissioner (Appeals) is correct in his observation “As mentioned in the Show Cause Notice. was only after verification of the details submitted by the Appellants, the short payment of Service Tax liability was detected, which otherwise would have gone undetected which takes the colour of malafide intent and not a voluntary payment”, then penalty should have been imposed under Section 78 of the Finance Act, 1994. Hon’ble Supreme Court has in the case of UNION OF INDIA VERSUS M/S RAJASTHAN SPINNING & WEAVING MILLS AND COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE VERSUS M/S. LANCO INDUSTRIES LTD. [2009 (5) TMI 15 - SUPREME COURT] specifically held that if the ingredients for invocation of extended period are present, then mandatory penalty as provided under Section 11AC of the Central Excise Act, 1944 (corresponding to Section 78 of the Finance Act, 1994) should have been imposed. Section 78 also provides that if the penalty under Section 78 is imposed, no other penalty under Section 76 could have been imposed on the appellant.
Accordingly the contention raised by the learned AR that there was malafide intention to evade payment of duty cannot be upheld. Secondly, Section 73(3) clearly provides that payment of tax could have been on own violation or on being pointed out by the department. Then also no notice could have been issued.
Appeal allowed.
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2022 (12) TMI 1149 - TELANGANA HIGH COURT
Violation of the principles of natural justice - service of SCN - challenge has been made on the ground that the show cause notice issued preceding the Order-in-Original as well as the notice for personal hearing, were not served upon the petitioner - HELD THAT:- There is no finding recorded by the first respondent that show cause notice was served on the petitioner or that the four letters intimating virtual personal hearing were served upon the petitioner. Mere issuance of show cause notice or letters of personal hearing to an assessee is not adequate. Assessing Officer is required to record a finding that notices were issued and served upon the assessee but despite service of notice the assessee did not come forward to contest the proceeding. It is thereafter that the Assessing Officer may proceed exparte. Such a finding is conspicuous by its absence in the impugned order.
Matter remanded back to the first respondent for a fresh decision. Since a copy of the show cause notice dated 24.12.2020 is now available, petitioner may submit its reply within 15 days from today - petition allowed by way of remand.
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2022 (12) TMI 1148 - CESTAT NEW DELHI
Prayer for recalling of Final Order - Non-consideration of documents - Small-Scale benefit - Bench was of the view that since there was no data, on record, about commission received during the preceding year i.e. Financial Year 2012-13 hence Small-Scale benefit cannot be granted for the Financial Year 2013-14 - HELD THAT:- It is perused that the impugned Final Order is an order which was dictated and pronounced in the open Court. Hence, as pointed out by ld. D.R. there was no occasion for affording an opportunity to the appellant - assessee to submit any document. From the record it is also perused that several letters were sent by the Department to the applicant – assessee prior to issue the Show Cause Notice requiring the assessee to provide information and the documents to satisfy that there is no evasion of service tax for rendering the taxable services during the Financial Year 2013-14 & 2014-15, but no document was ever provided nor any information was given by the appellant. Resultantly, the Show Cause Notice dated 18.10.2018 was served. It is also perused that even before the Original Adjudicating Authority the submission of the assessee in defence talks about the expenses incurred as reimbursement or the discount received from the principal i.e. M/s. Obsurge Biotech Ltd. against the early payment, but only for the Financial year 2013-14 and Financial Year 2014-15 there is no mention of any document for the Financial Year 2012-13. No additional document was ever provided to Commissioner (Appeals).
Most of the documents as annexed with the present application also are with respect to Financial Year 2013-14 and 2014-15. Though balance-sheet as on 31st March, 2013 has also been annexed but the fact remains is that the said document, admittedly, was provided on 12.04.2012, for the first time, whereas the order in hand was dictated and pronounced on 11.04.2022. Had it been provided at the time of dictation also the said statement could have been taken into consideration. Being a document which was never provided before any of the adjudicating authorities below there seems no reason otherwise to take this document on record.
These observed facts are sufficient for me to hold that such a document cannot be considered for recalling a Final Order. Otherwise also there is no provision which permits the Tribunal to recall its own order. The impugned recalling cannot even be called as the rectification of error apparent on record - Application dismissed.
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2022 (12) TMI 1147 - CESTAT NEW DELHI
Levy of service tax - Club or Association Service - Intellectual Property Rights Service - Transport of Goods by Road Service - Development and Supply of Contents Service.
Club or Association Service - appellant received contributions from its members which are relatable to various privileges which the members enjoy - HELD THAT:- In STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT], the Supreme Court held that companies and co-operative societies which are registered under the respective Acts can be said to have been constituted under those laws and therefore, get excluded from the definition of club or association under section 65(25a) and consequently, any service rendered by them will not be exigible to service tax under section 65(105)(zzze) - In this case, it is undisputed that the appellant is registered as a trust under the Indian Trusts Act. Therefore, the ratio of Calcutta Club Ltd. squarely applies to this case. Hence, the demand under this head cannot be sustained.
Intellectual Property Rights Service - it is submitted that the demands under this head on the appellants pertain to the period 1.4.2007 to 31.3.2010 when “intellectual property rights service” was taxable but copyrights were specifically excluded from the purview of IPR by law - HELD THAT:- On perusal of the agreements in question, we find that the appellants gave the service recipients the right to print or telecast or make copies of the Yoga programmes which they produced. In one agreement, the programmes were also being translated into Russian and telecast to Russia and CIS countries (countries which were part of the former Soviet Union). Evidently, the appellants allowed their copyrighted materials to be used for a consideration. The demand of duty is under the head IPR services chargeable under section 65(105)(zzr) - an intellectual property service will be rendered if the IPR is either transferred temporarily or its use or enjoyment is permitted. The scope of the IPR in the service tax law specifically excludes copyrights. Therefore, the amounts earned under the agreements by the appellants are clearly excluded from the scope of the taxing statute for IPR service. The demands under this head cannot, therefore, be sustained.
Transport of goods by road service - amounts paid as freight invoking Rule 2(1) (d) of the Service Tax Rules under reverse charge - HELD THAT:- Charging sections of taxing statutes must be strictly interpreted. Section 65(50b) clearly defines goods transport agency as one who renders any service in relation to transportation of the goods and issues consignment notes. It is a well settled law that if no consignment notes are issued, the service provider is not covered by section 65(50b) and consequently, any services rendered by such a service provider are not exigible to service tax. Learned counsel for the appellants submits that no consignment notes were issued in their case. We find no evidence on record to the effect that consignment notes have been issued - the demand under this head is not sustainable and needs to be set aside.
Development and Supply of Content Service - amount received from M/s. Rajashri Media Pvt. Ltd. for grant of exclusive rights to all audio, visual, audio-visual and text materials of Divya Yog Mandir Trust - HELD THAT:- Evidently, as per the agreement between the appellant and Rajashri, the appellant provided material which was developed into audio and video content by the latter and it was also commercially exploited. Part of the Revenue earned was shared by Rajashri with the appellant. Thus, the relationship between the appellant and Rajashri is not one of service provider-service recipient but one of partners in a joint venture in which each contributed something to the project and shared the Revenue earned. In the absence of any service provider-service recipient relationship, there can be no service tax because service tax is chargeable on taxable services provided. There must be a service, it must be taxable, there must be a service provider and a service recipient and a consideration to levy service tax. There is no charge of service tax on sharing of revenues in any joint venture between two entities or persons.
Levy of penalties u/s 76, 77 and 78 of FA - HELD THAT:- We do not find any evidence to substantiate the elements required to levy penalty under section 78. Therefore, only Section 76 would apply. Except for small amounts of service tax under two heads, we have also found that the demands themselves are not sustainable. Therefore, we find this a fit case to invoke section 80 and set aside the penalties under section 76 and 77 - the impugned order needs to be set aside to the extent it levies service tax on the appellant under the heads Club and Association Service, Intellectual property Rights service, Transport of goods by road service, and Development and supply of content service. The demand under the heads Renting of immovable property service and Health club and Fitness service is upheld along with applicable interest. All penalties are set aside by invoking section 80 of the Finance Act, 1994.
Appeal allowed in part.
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2022 (12) TMI 1146 - CESTAT AHMEDABAD
Levy of Service Tax - Banking and other Financial Services - charges paid by them in respect of their foreign currency transaction on reverse charge basis - HELD THAT:- It is noticed that the matter has been examined in detail in the case of M/S RAJ PETRO SPECIALITIES P LTD VERSUS C.C.E. & S.T. - SILVASA [2018 (8) TMI 1179 - CESTAT AHMEDABAD] where it was held that any bank charges paid by Indian Bank to the Foreign Banks even though in connection with import and export of the goods and the same was debited to the appellant, the service tax liability does not lie on the appellant.
In the instant case there are no allegation that any payment has been made directly by the appellant to the foreign bank. In this circumstances we find that no service tax can be demanded from the appellant.
Appeal allowed.
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2022 (12) TMI 1145 - CESTAT AHMEDABAD
Levy of Service Tax - differential value in comparing Form 26AS/ITR statement and taxable value declared in the ST-3 returns for the year 2016-17 - time limitation - HELD THAT:- The admitted facts involved in the present case are that the Appellant had undertaken Government construction work, in the capacity of a sub-contractor, for the main contractor M/s. Shantilal B. Patel & Co. for all the three separate disputes involved in the present appeal. All remaining demand originally proposed, are already dropped by the Adjudicating authority himself. It is also an admitted fact, as also certified by the main contractor, that they neither paid any Service Tax in respect of all three service activities in dispute, nor any demand was raised against them in this regard as well.
The Appellant has mainly contended that they were under bonafide belief that no Service Tax was payable on the work in question, being exclusively Governmental construction and when the main contractor too had not paid any Service Tax thereon without any adverse view being taken by Service Tax department. The demand is mainly contested as being time-barred as such - Also if the Appellant was liable to pay Service Tax, back to back, even the main contractor would have also been liable to pay the same. Whatever Service Tax, if paid by the Appellant, would have been back to back availed as Cenvat Credit by the main contractor anyway.
Therefore without going into any other issues, including whether exemption for construction of affordable housing under MGY scheme is available irrespective of small portion of commercial construction involved as part of MGY scheme under the tender floated, we find that the issue on hand can otherwise be decided in the facts and circumstances of the present case, on account of demands being time-barred - no purposeful meaning will be served by remanding the matter back for re-examination of this, especially in light of the fact that the appeals are required to be allowed on account of demands being time-barred anyway.
Appeal allowed.
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