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Service Tax - Case Laws
Showing 1 to 20 of 1573 Records
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2023 (12) TMI 1305
Liability of appellant (sub-contractor) to pay service tax - service tax has been paid by the main contractor on the whole contract value - difference of opinion - HELD THAT:- Section 65(7) of the Finance Act 1994 defines “assessee” as a person liable to pay the service tax and includes his agent. Rule 2(1)(d) of Service Tax Rules 1994 defines “person liable for paying service tax”. As per the said Rule, in respect of services other than in Rule (2)(1)(d)(i), it is the provider of service who is the person liable to pay service tax. When the law fixes the liability to pay tax on a particular person, the parties cannot mutually agree to absolve from liability or shift the liability to another. The activity of providing a taxable service being the taxable event, the subcontractor cannot escape the liability even though the main contractor has paid his part of the liability on the gross amount charged. As already stated as the main contractor being eligible to avail Cenvat Credit there is no situation of double taxation.
The Tribunal in very recent decisions as pointed by the Department has followed the decision in the case of Melange Developers Ltd. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB], to hold that the sub-contractor is liable to pay service tax even if the main contractor has discharged service tax on the contract value. Judicial propriety makes it binding to follow the Larger Bench decision in order to reduce conflict of decisions - the decision of Larger Bench in the case of Melange Developers & Co. would apply.
The view taken by brother Member (Technical) is agreed upon and it is held that the Appellant is liable to pay service tax on the value of sub-contract/work done inspite of the fact that the main contractor has discharged the service tax on the whole contract value.
The reference is answered and the difference of opinion stands resolved - papers may be placed before the Division Bench for deciding the appeal.
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2023 (12) TMI 1301
Refund of service tax paid on input services in terms of Notification No 40/2012-ST dated 20.06.2012 - impugned services are found in the approved list of services for the authorized operations of the unit located in SEZ or not - HELD THAT:- The issue in respect of applicability of the said condition for considering the application of refund made under the said notification is no longer res-integra and has been adjudged in a series of decisions of CESTAT.
Relevant paragraphs from the recent decision of the Allahabad Bench in the case of EXL Services SEZ BPO Solutions Pvt. Ltd. [2023 (9) TMI 196 - CESTAT ALLAHABAD] produced where it was held that In the present case revenue has not disputed the receipt of these services by the SEZ Unit, hence denial of the refund claim in respect of these three services for the reason that they did not find mention in the list of specified services approved by the SEZ authority cannot be upheld.
On the ground for rejection that certain invoices were addressed to some other premises of the Appellant which are outside the SEZ. There are no merits in the said ground. If it can be shown that the services covered by the said invoices were received and consumed by the appellant unit located in SEZ, then the CENVAT Credit/ Refund could not have been denied.
There are no merits in the impugned orders denying the CENVAT Credit/ Refund claims filed by the party in terms of the Notification No 40/2012-ST and 12/2013-ST on the grounds stated therein. However for determination of the refund claims in light of the above observations matter is to be reconsidered by the original authority.
Appeals are allowed and the matter remanded to the original authority for reconsideration of the refund claims.
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2023 (12) TMI 1288
Failure to discharge service tax liability properly for the taxable services rendered - Business Auxiliary Services - Goods Transport Agency Services - short payment of service tax on Custom House Agency Services - Time Limitation - Suppression of facts or not - difference of opinion.
HELD THAT:- In view of the difference of opinion between the Members of the Bench regarding Service tax payable on Business Auxiliary Service (BAS) and on Custom House Agent Service (CHA), the following issues which arise from the appeal are framed for resolution:
(i) Whether the demand of service tax on BAS and CHA services is liable to be set aside on the basis of submissions made and following the ratio of judgments / case laws submitted.
OR
(ii) Whether the Tribunal being the last fact-finding authority is required to examine the facts, written agreement / contract between the parties and in its absence remand the matter to the Original Authority for giving an opportunity to the appellant to adduce evidence as may be found necessary for determining the issue.
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2023 (12) TMI 1242
Levy of service tax - Declared Service - relinquishment charges under section 66E (e) of the Finance Act - charges are in the nature of consideration received towards rendition of the declared service i.e. tolerating of relinquishing access rights - HELD THAT:- It is well settled that the amount paid in the nature of compensation/damages on account of breach or non-performance of contract would not be considered in lieu of any service and, therefore, would not be leviable to service tax.
In view of the decision of the Tribunal in South-Eastern Coalfields Ltd. [2020 (12) TMI 912 - CESTAT NEW DELHI], it has to be held that relinquishment charges are not consideration received towards rendition of a declared service under section 66E (e) of the Finance Act.
It would not be necessary to examine the alternative submission made by the learned counsel for the appellant that in any view of the matter, the relinquishment charges recovered by the appellant are part of the electricity transmission service and, therefore, would be covered under the Negative List under section 66D (k) of the Finance Act.
The order dated 04.03.2021 passed by the Principal Commissioner cannot be sustained and is set aside - Appeal allowed.
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2023 (12) TMI 1241
Levy of service tax - Declared service or not - Recovery of penalty/liquidated damages recovered from customers and contractors - agreeing to the obligation to recover from an Act or to start an Act or a situation, or to do an Act - HELD THAT:- After considering the various provisions of Indian Contract Act therewith, it has been held that liquidated damages/ compensation for the breach of contract can be awarded to make good the loss or damage which actually arises or which the parties knew when they made the contract, “to be likely to result from the breach”. Hence it cannot be concluded that sum received is synonymous to “tolerating”. It is absolutely wrong to say that in breach of contract one appellant tolerates an Act or a situation, hence, the view taken by the Commissioner (Appeals) that the liquidated damages as have been received by the appellants towards “consideration” for “tolerating the Act” are leviable to service tax under section 66 E(e) of Finance Act is not at all sustainable.
In the fact of both the present appeals, it is found that the facts are almost identical. There appears nothing for us to differ from the above observations in the afore-mentioned final order of the said Tribunal. Respectfully, following those findings it is held that the amount in question cannot be called as consideration towards declared service as defined under Section 66E (e) of the Finance Act. The confirmation of tax demand qua said amount is therefore not sustainable.
Appeal allowed.
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2023 (12) TMI 1216
Refund of the amount paid during investigation but not appropriated by the department after conclusion of such investigation - Refund barred by limitation under the provisions of Section 11B of the Central Excise Act, 1944 or not - HELD THAT:- The refund claim filed by the Appellant cannot be rejected on the ground of limitation as what was paid by the appellant was not tax as envisaged under the Finance Act, 1994. Thus, the amount paid by the Appellant would not take the character of tax but is simply an amount paid under a mistake of law. The provisions of Section 11B ibid would, therefore, not be applicable to an application seeking refund thereof. Moreover, since the retention of the amount in issue by the department is without authority of law, the question of applying the limitation prescribed under Section 11B ibid would not arise.
For a service to be taxable, it is necessary that the service has to be rendered by one person to another and without a perceived service money contribution cannot be held to be a consideration which is liable to tax. The authority concerned is duty bound to refund such amount as retention of such amount would be in violation of Article 265 of the Constitution of India which mandates that no tax shall be levied or collected except by authority of law. Since Service Tax received by the concerned authority is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution of India, the authority concerned has no right to retain the same.
The judgment of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT] has been considered and interpreted by several judgments including the Karnataka High Court in COMMISSIONER OF CENTRAL EXCISE (APPEALS), BANGALORE VERSUS KVR CONSTRUCTION [2012 (7) TMI 22 - KARNATAKA HIGH COURT], by this Tribunal in the case of M/S. ASL BUILDERS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL GST & CX, JAMSHEDPUR [2020 (1) TMI 431 - CESTAT KOLKATA]. The said judgments have concluded that statutory limitation periods are not applicable to amounts paid under mistake of law.
Thus, it is concluded that the statutory limitation period prescribed under Section 11B is not applicable to the refund claimed by the Appellant since the amount paid by the Appellant is not a tax.
The present appeal is allowed.
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2023 (12) TMI 1215
Levy of service tax - Business Auxiliary Service - services of 'Sizing of coal' to customers - HELD THAT:- The issue is no longer res integra, as the Tribunal Kolkata Bench has decided the issue in favour of the Appellant in the case of COMMR. OF CENTRAL EXCISE & S. TAX, BOLPUR VERSUS M/S INTEGRATED COAL MINING LTD. [2021 (1) TMI 179 - CESTAT KOLKATA] where it was held that By discharging the tax liability on the job work charges as well as by discharge of VAT liability on ‘brought out’ items used for fabrication at site, the scope for considering the activity as manufacture is eclipsed entirely.
The Appellant is not liable to service tax under the category of 'Business Auxiliary Service' and hence the demands confirmed in the impugned order is not sustainable - the demands of duty along with interest and penalty confirmed in the impugned order is set aside - appeal allowed.
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2023 (12) TMI 1214
Non/short-payment of service tax - contention of the appellant was that it had neither issued the invoice nor had received the amount mentioned in the notice - principles of natural justice - HELD THAT:- In view of the factual position as to whether the service tax paid by the consortium partner of the appellant was linked with the invoice issued by the consortium partner, it would be in the fitness of things that the adjudicating authority examines this issue and it would be not appropriate to examine this issue in this appeal.
Whether the service tax to the extent of Rs. 6,42,177/- has been paid on the excess income of Rs. 51,95,614/- by the service tax recipient, namely, M/s Bihar Urban Infrastructure Development Corporation Ltd.? - HELD THAT:- In view of the nature of controversy that has arisen, it would be appropriate if this issue is also again examined by the adjudicating authority after providing an opportunity to the appellant to submit relevant documents to establish the link between the invoice and the service tax paid by M/s Bihar Urban Infrastructure Development Corporation Ltd.
Whether service tax was required to be paid on the amount of Rs. 31,84,835/-, which amount was shown in the books of account as “work-in-progress” by the appellant? - HELD THAT:- The Commissioner (Appeals), after having noted all the submissions, recorded a finding that it was for the appellant to have shown by positive evidence that it had not received the amount as advance and since it could not substantiate this fact, the demand had to be upheld - The Commissioner (Appeals) completely erred in recording this finding. It was for the Department to have established that the appellant had received the payment in that particular year, more particularly when the contention of the appellant was that it had not received any payment and the amount was only shown as “work-in-progress” in the balance sheet. This demand, which has been confirmed by the Commissioner (Appeals), therefore, deserves to be set aside.
The present appeal has to be allowed in part.
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2023 (12) TMI 1213
Levy of penalty - non discharge of tax liability - availment of irregular CENVAT Credit - suppression of facts or not - amount already reversed by the appellant was proposed to be appropriated against the said demand - HELD THAT:- The present case is merely a case of non discharge of tax liability, same cannot be equivalent to an intentional and positive act to evade payment of duty. The onus to prove such an act is upon the department. There are no iota evidence proving any positive intentional act of the appellant to evade the duty. The appellant was regularly/claiming credit of duty paid on coal as their input i.e. coal was exempted till 1.3.2011. They continued availing said credit for subsequent few more months due to inadvertence or ignorance on the part of the appellant to take into consideration the amendment which came into effect on 1.3.2011 making coal as an excisable goods. Thus it is far a different situation than an intention to evade payment of duty. The tax returns were otherwise regularly undisputedly filed. There is also no demand of excise duty on the coal from the appellant which otherwise stands paid. This apparent fact makes it clear that there is no suppression of facts, nor any element of fraud, mis-statement on the part of the appellant.
It is also observed that the amount which is ordered to have been appropriated was reversed much prior to issuance of SCN. The SCN should not have been issued in view of proviso to section 73 of the Finance Act, 1994.
The order imposing equal penalty of Rs.46,21,582/-, is not sustainable and the order under challenge is set aside to that extent - Appeal allowed.
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2023 (12) TMI 1212
Maintainability of appeal - appeal dismissed as it was not filed within the time stipulated in section 85 (3A) of the Finance Act, 1994 - HELD THAT:- In the present case, the appeal was presented before the Commissioner (Appeals) even beyond the extended period of one month after the expiry of the normal period of limitation of two months.
In SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT], the Supreme Court observed The Supreme Court held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of Section 35 of the Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days.
In view of the aforesaid decision of the Supreme Court in Singh Enterprises, the Commissioner (Appeals) did not commit any error in dismissing the appeal - Appeal dismissed.
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2023 (12) TMI 1211
Extended period of limitation - suppression of facts or not - mining service or not - service of blasting the rocks/boulders from the quarries, loading them into trucks and transporting them to the site of the crusher - HELD THAT:- As per section 73 of the Act, demand of service tax not paid or short paid can be raised only within the normal period of limitation. However, extended period of limitation can be invoked, if the non-payment or short payment of service tax is on account of fraud or collusion or willful statement or suppression of facts or violation of the provisions of the Act or Rules with an intent to evade payment of service tax. Evidently, fraud, collusion and willful statement have an in-built element of mens-rea. Without the intent being established, these cannot be alleged. As far as the suppression of facts is concerned, it has been held in a series of judicial pronouncements that since the words suppression is used along with words, such as, fraud, collusion and willful statement mere omission cannot be called suppression and intent has to be established. It has now well settled position of law.
The two SCNs merely state that the appellant had not disclosed the value of the taxable services which it had rendered correctly in its ST-3 returns and, therefore, presume that the appellant had an intention to evade payment of service tax. There is not an iota of evidence in either of the SCN of this intent - Both the SCNs further state that had the audit not conducted scrutiny of the records, the short paying the service tax would not have come to notice. It is a matter of fact that all the details were available in the records of the appellant. The appellant was required to furnish returns under section 70 with the Superintendent of Central Excise which it did. It is for the Superintendent to scrutinize the returns and ascertain if the service tax had been paid correctly or not. If the assessee either does not make the returns under section 70 or having made a return, fails to assess the tax in accordance with the provisions of Chapter or Rules made thereunder, the Superintendent of Central Excise can make the best judgment assessment under section 72.
The fact that the alleged short payment came to light only during audit does not prove the intent to evade payment of service tax by the appellant, but it only proves that the Range Superintendent had not done his job properly. For these reasons, it is found that the demand for the extended period of limitation cannot be sustained.
It is evident that neither SCN has given any opportunity to the appellant to defend its case for the period after 01.07.2012. Both SCNs only proposed the demand under the head “Mining Services” for the period pre 01.07.2012 as well as period post 01.07.2012. As far as the demands for the period pre 01.07.2012 are concerned, it is already held that the extended period of limitation was wrongly invoked in both the SCNs and, therefore, demand cannot be sustained. The legal provisions pertaining to the post 01.07.2012 have not been invoked and the appellant was not put to notice although the Commissioner has, in the impugned order, confirmed the demand on the ground that the services rendered by the appellant were not covered by the negative list.
It is a well settled legal principle that the adjudicating authority cannot travel beyond the SCN. Therefore, he could not have confirmed the demand under the provision after 01.07.2012. Under these circumstances, it is found that the demand in the impugned order is not sustainable and needs to be set aside. Consequently, the demand of interest and the penalties imposed also need to be set aside.
Appeal allowed.
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2023 (12) TMI 1210
Non-payment of service tax - gross amount of commission received by the appellant under ‘business auxiliary service’ - extended period of limitation - HELD THAT:- A perusal of the order passed by the Commissioner (Appeals) indicates that what was examined by the Commissioner (Appeals) was whether the services rendered by the appellant would fall under ‘business auxiliary service’, as defined under section 65 (19 (vi) of Finance Act, 1994, or under ‘business support service’ as defined under section 65 (104c) of the Finance Act, 1994. After a careful analysis of services provided, the Commissioner (Appeals) after noticing that business support service was subjected to levy of service tax from 01.05.2006 and since there was no amendment in the definition of ‘business auxiliary services’, recorded a categorical finding that the activity of the appellant would not fall under ‘business auxiliary service’. The demand made for the period April, 2005 to March, 2006 was, therefore, set aside.
On perusal of the order dated 23.04.2012 passed by the Commissioner (Appeals) shows that a categorical finding has been recorded that the services would appropriately fall under the category of business support service, which service was made taxable with effect from 01.05.2006. The period involved in the present appeal is prior to 01.05.2006.
The order dated 16.01.2018 passed by the Commissioner (Appeals) cannot, therefore, be sustained and is set aside - appeal allowed.
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2023 (12) TMI 1145
Jurisdiction of CESTAT under GST Act, 2017 - Refund order passed u/s 142 of the Central Goods and Services Tax Act, 2017 - appealable before the Customs, Excise and Service Tax Appellate Tribunal or not - the issue that has been referred to the Larger Bench of the Tribunal is as to whether the order passed under section 142 of the CGST Act is appealable before the Tribunal.
HELD THAT:- Section 142 deals with Miscellaneous Transitional Provisions. Sub-section (3) provides that every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of section 11B of the Central Excise Act. However, no refund shall be allowed of any amount of CENVAT credit where the balance of the said amount as on the appointed day has been carried forward under the CGST Act - appellant had deposited the short payment of service tax under Chapter V of the Finance Act in respect of import of service on 08.12.2017. Refund of CENVAT credit could have been claimed under rule 4(7) of the CENVAT Rules, which had been framed under section 37 of the Excise Act and section 94 of the Finance Act.
Section 173 of the CGST Act provides that save as otherwise provided in the CGST Act, Chapter V of the Finance Act, shall be omitted. Section 174(1) of the CGST Act provides that save as otherwise provided in the CGST Act, on or from the date of commencement of the CGST Act i.e. 01.07.2017, the Excise Act shall stand repealed. Upon repeal of the Excise Act, the CENVAT Rules automatically stood repealed. The appellant, therefore, could not have claimed refund under rule 4(7) of the CENVAT Rules.
Before examining whether an appeal would lie to the Tribunal against an order passed under section 142 of the CGST Act, it would be appropriate to examine whether an appeal would lie to the Appellate Tribunal constituted under the CGST Act.
Whether the Tribunal would have the jurisdiction to entertain an appeal filed against an order passed under sub-section (3) of section 142 of the CGST Act? - HELD THAT:- There is, therefore, no manner of doubt that an appeal against an order passed under section 142 of the CGST Act would lie to the Tribunal - This view also gains support from the fact the legislative intent could not have been to deprive either an assessee or the Revenue from the right of an appeal since an appeal against an order passed under section 142 of the CGST Act would not lie to the Appellate Tribunal constituted under the CGST Act.
In the present case, the service tax was paid under the provisions of Chapter V of the Finance Act and refund was claimed under sub-section (3) of section 142 of the CGST Act, under which the claim was required to be disposed of in accordance with the provisions of the existing law. Therefore, even if the service tax had been deposited by the appellant after 01.01.2017, nonetheless the refund of any amount of the CENVAT credit could be claimed only under sub- section (3) of section 142 of the CGST Act and against this order an appeal will lie to the Tribunal.
Thus reference answered as:- An appeal would lie to the Customs, Excise & Service Tax Appellate Tribunal against an order passed under section 142 of the Central Goods and Services Tax Act, 2017.
The papers may now be placed before the Division Bench of the Tribunal for deciding the appeal.
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2023 (12) TMI 1144
Levy of service tax - Site Formation & Clearance, Excavation & Earth Moving & Demolition Services - difference between Balance Sheet & Service Tax Return figures.
In respect of dropping of demand of Rs.11,64,74,435/- - HELD THAT:- The services rendered by the assessee both in terms of the scope of the relevant statute as well as judicial pronouncements cannot be considered as Site Formation and Clearance, Excavtion and Earth Moving and Demolition Services for the period from 16.6.05 to 31.5.07. According to me the valuation against Site formation etc. arrived at by ICWAI does not affect this inference because determination of value of a part of a service in no way affects the character of the service as given under agreements. The agreements do not mention any separate consideration for overburden removal or site formation.
In respect of dropping of demand of Rs.2,09,43,980/- - HELD THAT:- Due cognizance given to the certificate issued by the statutory auditor of the company C.Ghatak & Co which in effect had completely reconciled the difference of Rs.19,32,74,085/- by which the balance sheet figure exceeds the figure covered under bills raised on mining clients, and on which service tax demand of Rs.2,09,43,980/-has been raised in the impugned SCN.
Dropping of penalties under Section 78 - HELD THAT:- In consonance with the Board’s Circular No.137/167/2006/CX-4 dated 03/10/2007 read with provisions of Section 73(3) of the said Act, it is found the issues of the instant case are squarely covered by such provisions and clarifications in so far as the demand of Rs.26,01,36,069/- is concerned. As a sequel to the above reasons, it is opined that for conclusion of all proceeding in respect of the demand for the aforesaid period against the assessee in terms of Section 73(3) of the Act read with Board’s Circular. In the circumstances, there are no justification for imposing penalties against this amount.
The Adjudicating authority has considered all the factual details and statutory provisions and case law for coming to his considered decision - there are no reasons to differ with his findings - appeal of Revenue dismissed.
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2023 (12) TMI 1110
Waiver of demand for service provided by the appellant as a sub-contractor for the period prior to the Board Circular No. 23/3/97-ST dated 13.10.1997 - Circular prescribes that when the Service Tax on the entire value was discharged by the main contractor the sub-contractor is not required to pay service tax - applicability of clarification via Circular No. 96/7/2007-ST dated 23.08.2007 - HELD THAT:- It is found that this case can be decided even without going into merit of the case that whether the service provided by the sub-contractor is liable to Service Tax or otherwise.
It is found that including the case laws cited by the respondent this Tribunal taking consistent view that during the period prior to 2007 when the Circular No. 23/3/97-ST dated 13.10.1997 dated 23.08.2007, was in force which clarified that sub-contractor is not required to pay Service Tax when the main contractor has discharged the Service Tax. In this case this fact is not under dispute - on this similar fact this Tribunal has taken view that there is no mala fide on the part of the assessee.
The demand for extended period was set aside - appeal of revenue dismissed.
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2023 (12) TMI 1109
Levy of service tax - construction of complex service - construction of flats at Uttar Pradesh Awas Vikas Yojna - demand dropped by the Commissioner on the ground that they were constructed by the Government for their personal use and hence were exempted from service tax - HELD THAT:- The assessee did not pay service tax on the plea that there were not more than 12 dwelling units in one block constructed by them. According to the Revenue, block and complex are not one and the same. As per the letter issued by the UP Awas Vikas Yojna to the assessee there were five separate agreements for construction of 42 blocks comprising 504 residential units in total at different locations in Gonda District for providing accommodation to weaker sections. There was no specific exemption to the services rendered by the assessee and, therefore, the Commissioner should have confirmed the demand on the services under construction of complex service.
Business of construction of civil structures either residential or commercial - demand dropped holding that the income declared to the income tax department has no co-relation with the service provided - HELD THAT:- The land in question was agricultural land. It was not converted into non-agricultural land. In some cases the agreements specifically provided that the site formation was meant for agricultural purposes. It, therefore, appears that the assessee had rendered these services on agricultural land for the real estate developers. The case of the assessee is that the intention of the client is irrelevant to taxability and as long as the service is rendered on agricultural land, it is non-taxable. On the other hand, according to the revenue, the demand on ‘site formation service’ has been correctly confirmed in the impugned order because although the land was agricultural land during the relevant period, the nature of the contracts makes it abundantly clear that it was rendered to real estate developers for investment purpose which is undisputed.
Whether the services rendered by the appellant are excluded as being provided in relation to agriculture? - HELD THAT:- Nothing in the records suggests that the service recipient builders were engaged in agriculture, although the land was during the relevant period was agricultural land. Evidently, the land was meant for developing into real estate although such development can take place only after the land was is got converted into non-agricultural land by the land revenue authorities. Unsurprisingly, the contracts do not mention that the site formation must be done by the appellant for non-agricultural purposes because non-agricultural activities could not have been taken up on the land before it was converted to non-agricultural land. Seeing the contracts as a whole, it is evident that the purpose of site formation was for the builder to develop it into real estate and it was not for agricultural purposes - the demand cannot be sustained and hence needs to be set aside.
Dropping of service tax under three heads. Under “commercial or a industrial construction service - demand was dropped on the construction of three buildings for Aligarh, Muslim University, hostels at IIT Roorkee and construction in respect of Tehri Hydro development corporation - HELD THAT:- Section 65 (25b) is very clear. ‘Commercial or Industrial construction’ means the service which is rendered for construction, prepare alteration etc., of a building which is used or is to be used, occupied or is to be occupied or engaged or is to be engaged primarily in commerce and industry or works intended for “commerce or industry”. By no stretch of imagination can we call the amounts collected by the Aligarh Muslim University when the buildings are used for campus recruitment as commercial activity. Even if it is considered as a commercial activity, the building is not primarily for commerce or industry. Similarly universities, as a matter of course, provide consultancy services as a part of their extension programmes and do collect some consultancy fee when such services are provided. That does not make them organizations primarily engaged in commerce or industry nor can a building which is used for providing such consultancies be considered as a building primarily for commerce or industry.
The contention of the Revenue that the hostels in IIT constructed by the assessee should be considered as buildings primarily for commerce or industry simply because some hostel fees is collected from students by the IITs. Similarly, Tehri Hydro Electric Development Corporation is national project meant for generating hydro electricity and supplying it - The buildings in hydro electric project cannot, therefore, also be considered as buildings primarily meant for commerce or industry - there are no error in the Commissioner’s order dropping the demand with respect to the commerce or industrial construction service.
Construction of complex service - demand to the extent the services were rendered to Uttar Pradesh Avas Vikas Yojna for construction of residential complexes for weaker sections dropped - HELD THAT:- If there are several buildings and each one fewer than 12 residential units and the total number of residential units in all the buildings together is more than 12, such complexes does not fall under section 65(91a). Therefore, no service tax can be levied on such complex - It is found that the Commissioner committed no error in dropping the demand on construction of complex services on the buildings which the appellant constructed for UP Avas Vikas Yojna.
Demand of service tax on the declaration made to the income tax during survey operation - HELD THAT:- According to the Revenue, the Commissioner had erred in not appreciating the declaration by the Director of the appellant that the amount was collected from various investors for real estate projects to be launched. However, this statement was not considered is not correct as the balance sheet of the noticee for the relevant period revealed that they were into construction of business only and were not developers. Further, even if the statement of the Director is held to be correct, the amounts so collected would have been squarely covered as amounts collected for service to be provided under section 65 (105) of the Finance Act, 1994 - Several services were rendered by the appellant which were exempted from payment of service tax. If Revenue alleges the service tax has to be paid on this income received by the appellant, it has to establish that this income is earned by rendering a taxable service. Revenue has not done so, therefore, the demand was correctly dropped under this head by the Commissioner in the impugned order.
Appeals disposed off.
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2023 (12) TMI 1108
CENVAT Credit - input tax credit availed on common input services such as advertisement, banking and finance, courier service, manpower service, renting of immovable property service, security service, telecommunication service etc. for trading also - non-maintenance of separate accounts as contemplated under Rule 6 (2) - HELD THAT:- There is nothing to show that the department has verified as to whether the trading units have availed credit on input services. It is merely stated that the trading units have provided installation services for which they have collected service tax and paid to the Government and so is engaged in services also - such installation services are output services of the trading unit and not input services. Credit cannot be availed on the service tax paid on output services viz; installation charges. On perusal of records, in the invoices issued for sale of products, the trading unit while collecting service tax on installation charges has mentioned the service tax registration number of the service unit of the appellant. This might have created confusion to the department to assume that the trading unit has availed credit on input services.
Merely because the appellant trading unit had mentioned the service tax registration number of the service unit while issuing invoices, the department has assumed that the appellant trading unit must be availing credit on input services also. The department has made a conclusion that the trading units are also to be considered as service units and the demand has been raised alleging that the appellant has availed credit in regard to activity of trading. It also requires to be mentioned that while quantifying the duty demand the turnover of the trading units has been applied against the total credit availed by the service units. Thus, the appellant has been required to pay 6% of the value calculated by such formula.
The department has failed to establish the allegation in the SCN that credit on common input services have been availed in regard to trading - the demand raised being factually and technically incorrect cannot be sustained.
The impugned order is set aside, the appeal is allowed.
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2023 (12) TMI 1096
Recovery of short paid service tax - post GST era - Refusal to entertain a challenge to the show cause notice issued by the 1st respondent - direction to respondent authorities to issue a fresh notice for personal hearing to the appellant/assessee in response to the impugned show cause-cum-demand notice - time limitation - HELD THAT:- The averments in the notice give a different picture. Being alerted by the TDS deposited with the income-tax department, authority concerned initiated an independent investigation into the matter. In the course of the investigation it examined the records and documents of the firm including its audited balance-sheet etc. On the basis of these materials the authorities concerned was of the view that there was a short deposit of service tax for the financial years to the tune of 7,43,625/- for the financial years 2014-15, 2016-17 and 2017-18.
Time Limitation - HELD THAT:- There are substance in the submission of the learned counsel for the respondent authorities that the proceedings for recovery of service tax under the prior legislation (since repealed) is saved by operation by section 174 sub-clause (2) of the Act of 2017. Sub-section 2 of section 174 of the Act of 2017, inter alia, provides that the promulgation of the Act of 2017 shall not affect any right, privilege, obligation, liability accrued under the repealed law and/or any investigation, enquiry adjudication or recovery proceedings of duty, tax, penalty, interest under the repealed law may be instituted or continued as if the earlier law had not been repealed.
The demand cum show cause notice for recovery of short deposit of service tax for the financial years 2014-2015, 2015-2016 and 2017-2018 shall be deemed to have been instituted and continued under the repealed law and cannot be pre-empted with reference to the time frame under section 74 (10) of the Act of 2017. Hence, the impugned show cause notice cannot be said to be ex facie without jurisdiction or time barred.
Thus, no case of patent lack of jurisdiction or legal bar to the issuance of show cause notice cum demand notice has been made out. However the appellant/assessee is entitled to a personal hearing in the matter - appeal disposed off.
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2023 (12) TMI 1071
Sabka Viswas Scheme (SVLDRS) - petitioner not able to pay the demanded amount in time - HELD THAT:- In W.P.No.24366 of 2021 [2023 (11) TMI 899 - MADRAS HIGH COURT], a similar set of facts was already considered and a detailed order was also passed by this Court where it was held that this Court is of the view that the application, filed on 13.02.2023 consequent to the payment made by the petitioner, has to be accepted under the SVLDRS scheme by the respondent and in such view of the matter, this Court has no hesitation to direct the respondent to issue Form SVLDRS-4 to discharge the tax liabilities within a period of 30 days from the date of receipt of copy of this order.
The impugned order dated 24.08.2021 is set aside. Further, the 2nd respondent is directed to accept the payment made by the petitioner in terms of Form SVLDRS 3 and issue a Certificate of Settlement in Form SVLDRS 4 within a period of four weeks from the date of receipt of copy of this order - the writ petition is allowed.
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2023 (12) TMI 1070
Refund of service tax - Principles of unjust enrichment - incidence of duty - it is alleged that appellant had not passed on the burden of service tax to its client departments.
According to the Revenue, unjust enrichment would apply to this case because the contracts were for an all inclusive price (including duties and taxes) and therefore, the appellant must have had reckoned the service tax into the total cost while bidding and at the time of bidding, there was no exemption from service tax and therefore, the appellant must have included in its invoice price, the service tax element.
HELD THAT:- This finding because section 102 provides for refunds only if the contracts were signed prior to 1 March 2015. During that period, no service tax was payable because of exemption notification no. 25/2012-ST. cannot be agreed - it is found inconceivable that the appellant would have anticipated that the exemption from service tax would be withdrawn even before submitting its bids and would have included the service tax element in the bills.
It is found impermissible to hold that the appellant had indirectly passed on the burden of the service tax to its client government departments. Once this anomalous and baseless presumption that the service tax would have been indirectly passed on by the appellant to its client government departments is removed, no basis remains for rejecting the refund claim or crediting it to the Consumer Welfare Fund.
What distinguishes the present case from UNION OF INDIA VERSUS SOLAR PESTICIDE PVT. LTD. [2000 (2) TMI 237 - SUPREME COURT] is the fact that no service tax was paid when the appellant submitted its bids to the clients. Therefore, there is no scope for passing on the burden of any service tax at that stage. After the service was rendered, it was only entitled to the amounts which it bid and which were accepted in the contract and not to any additional amount as service tax. The contracts specifically exclude any additional payments towards service tax - The Commissioner’s reasoning in the impugned order is based on the presumption as to how the appellant would have decided to bid an amount and we find no room in law to speculate as to how the bids would have been made by the appellant. It is their business decision and there is no presumption in law that whenever bids are made, elements X, Y or Z have been reckoned. Based on this presumption as to how the appellant would have made its bids and further, based on the factually incorrect assumption that at the time of making the bids, service tax was not exempted and hence would have been reckoned by the appellant while preparing its bids, the Commissioner held that unjust enrichment would apply.
The impugned order deserves to be set aside and is set aside - Appeal allowed.
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