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Service Tax - Appellate Tribunal - Case Laws
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2023 (3) TMI 1275
Classification of services - services provided to DMRC with respect to Cost Centre A (Preliminaries and General Requirements) and Cost Centre B (Detailed Design) - classifiable under the taxable category of ‘consulting engineer service’ or not - services provided by the appellant to DMRC with respect to Cost Centre D (Installation and Site Testing) and Cost Centre E (System Acceptance Test and Integrated Testing & Commissioning) - classifiable under the taxable category of ‘erection, commissioning or installation services’ or not - Non-payment of Service Tax - HELD THAT:- It is seen that for the period prior to 01.07.12, the service provided by the appellant would be covered within the exclusion clause of the definition of works contract service since the service provided by the appellant to DMRC is with respec....... + More
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2023 (3) TMI 1274
Condonation of delay in filing appeal - time limitation - appeal dismissed for the reason that it had been filed beyond the period of limitation prescribed under section 85 of the Finance Act, 1994 - HELD THAT:- On a plain reading of the provisions of section 85(3A) of the Finance Act, it is clear that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner (Appeals) within two months from the date of receipt of the decisions or orders. The proviso, however, stipulates that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. It is, therefore, clear that an appeal can be filed within two months from t....... + More
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2023 (3) TMI 1273
Rejection of Refund of Service Tax - tax deposited by the appellant under a mistaken belief that service tax was leviable on construction of individual independent residential houses - denial of refund of service tax for the reason that the appellant cannot claim benefit of the Exemption Notification dated June 20, 2012 for the period after July 01, 2012 - rejection of refund claim also on the ground of unjust enrichment. HELD THAT:- A Division Bench of the Tribunal in AS SIKARWAR VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [2012 (11) TMI 1000 - CESTAT, NEW DELHI] also observed that service tax can be demanded only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where one compound has many buildings, each having not more than 12 residential units. It is true that w.e.f J....... + More
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2023 (3) TMI 1212
Refund of service tax - Construction of Complex Service - mutuality of interest - construction of complex service provided by appellant SHRINANDNAGAR V CO OPERATIVE HOUSING SOCIETY LIMITED to its members of the society - relationship of service provider and service recipient between cooperative societies and its members - HELD THAT:- This tribunal in the order dated 30.07.2009 [2009 (7) TMI 135 - CESTAT, AHMEDABAD] decided the matter on merit in the appellant’s favour holding that the appellant is eligible for refund however, it was remanded only for the examining the aspect of unjust enrichment, where it was held that in the absence of a contractor hired by Society and nature of the transaction between the parties and in the light of definition of service and its liability for service tax, the transaction in this case cannot be con....... + More
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2023 (3) TMI 1211
Levy of Service tax - business auxiliary service - amount received by the appellant for using Central Reservation System (CRS) - amount received towards money transfer transactions would be exigible to service tax or not? - period involved is from October 2009 to March 2015. HELD THAT:- This issue has been decided by a Larger Bench of the Tribunal in favour of the appellant in KAFILA HOSPITALITY & TRAVELS PVT. LTD. VERSUS COMMISSIONER, SERVICE TAX, DELHI [2021 (3) TMI 773 - CESTAT NEW DELHI] where it was held that It, therefore, clearly transpires from the aforesaid decisions that incentives paid for achieving targets cannot termed as “consideration” and, therefore, are not leviable to service tax under Section 67 of the Finance Act. The view expressed by the Larger Bench in Kafila Hospitality was subsequently followed by ....... + More
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2023 (3) TMI 1173
Classification of services - arrangement of job work by the appellant for M/s. Gharda Chemicals Limited in their factory - HELD THAT:- There is only difference of period in the present case and the case which was decided by this Tribunal in GUJARAT INSECTICIDES LTD VERSUS C.C.E. & S.T. -SURAT-II [2023 (2) TMI 781 - CESTAT AHMEDABAD]. Therefore, except for the period, all the facts are same and therefore as per the judicial discipline wherein this Tribunal has held that the activity of the appellant is indeed manufacture of excisable goods in terms of section 2(f) of CEA, 1944. As per the definition of business auxiliary service manufacture of excisable goods in terms of section 2(f) of the Central Excise Act, 1944 is clearly excluded from the definition of business auxiliary service. For this reason also, the demand of service tax is ....... + More
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2023 (3) TMI 1172
Levy of Service Tax - reverse charge mechanism - management, maintenance or repair service or not - appellant’s Head Office was at U.S.A., from whom they purchase the software, enter into an agreement/contract with Indian customers for maintenance and enhancement of the software sold by them and that the appellant had incurred expenditure in foreign currency towards the purchase - Revenue neutrality - Extended period of limitation. HELD THAT:- Admittedly, the provider of service is a foreign entity who would only upload the programme on to the website, provide the internet website address and a password for the same - Section 66A is the charging section under reverse charge mechanism on the services provided or to be provided by a person who is not having a permanent address or usual place of business or residence in a country other....... + More
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2023 (3) TMI 1128
Levy of Service tax - Industrial or Commercial Construction Service - service of industrial painting job - scope of SCN - HELD THAT:- The learned Commissioner (Appeals) travelling beyond the show cause notice and adjudication order decided that the service tax is payable under the head of Management, maintenance and repair service. This approach of the learned Commissioner (Appeals) is absolutely illegal and incorrect. The learned Commissioner (Appeals) has no power to create a new case before him which is not flowing from the show cause notice therefore, on this ground alone the impugned order is not sustainable. However, since the learned Commissioner (Appeals) has upheld the demand under Management, maintenance and repair service and not under Industrial or Commercial Construction Service the matter needs to be reconsidered by the lear....... + More
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2023 (3) TMI 1127
Jurisdiction - power of Commissioner (Appeals) to remand the matter to Adjudicating Authority - Section 35 A of Central Excise Act, 1944 / Section 128 A (3) of the Customs Act, 1962 - HELD THAT:- As per the judgment of the Hon’ble Jurisdiction High Court of Gujarat in the case of COMMISSIONER OF SERVICE TAX VERSUS VERSUS ASSOCIATED HOTELS LIMITED [2014 (4) TMI 406 - GUJARAT HIGH COURT] in which the support was taken from the Hon’ble Supreme Court Judgment in the case of MIL INDIA LTD. VERSUS COMMISSIONER OF C. EX., NOIDA [2007 (3) TMI 8 - SUPREME COURT]. On this settled position this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & ST, AHMEDABAD VERSUS ADANI POWER LIMITED [2020 (3) TMI 810 - CESTAT AHMEDABAD] dealing with one of the issue of remanding power of the Commissioner (Appeals) held that the learned Commis....... + More
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2023 (3) TMI 1072
Levy of service tax - activity undertaken by the assessee of hire purchase and financial lease agreement entered prior to 16.07.2001 and amount received thereafter - prior to 01.03.2006, when there was no mechanism for bifurcation of service, income as provided in Notification No.4/2006, demand of service tax, is sustainable or not? - levy of penalty on assessee. Whether for the activity undertaken by the assessee of hire purchase and financial lease agreement entered prior to 16.07.2001 and amount received thereafter, are liable to service tax or not? - HELD THAT:- The service tax has been levied on Banking and Other Financial Services with effect from 16.07.2001. Prior to that, there was no leviable on Banking and Financial Institution Services. Therefore, the agreement, which has been entered by the assessee, with their clients prior t....... + More
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2023 (3) TMI 1013
Refund claim - time limitation - whether the appellants refund filed after one year from the relevant date is hit by limitation in terms of Section 11B of Central Excise Act, 1944? HELD THAT:- From the proviso under Section 11B(1), the period of one year will not apply if the assessee paid duty under protest. In the present case also, it is not in dispute that service tax was paid under protest therefore, the limitation of one year is prima-facie not applicable. However, before the Adjudicating Authority the appellant have not produced the letter under protest dated 25.06.2007, the learned Commissioner (Appeals) also rejected the submissions of the appellant regarding this under process letter on the ground that it is an after-thought as the same was not produced before the original authority. This letter is of dated 25.06.2007 and it can....... + More
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2023 (3) TMI 1012
Levy of Service Tax - renting of vacant land surrounded by boundary wall - tax paid on service of renting beyond one year from the relevant date is time barred under Section 11A or not - refund of service tax paid on vacant land is hit by mischief of unjust enrichment or not. Whether renting of vacant land is taxable under the category of Renting of Immovable Property Service? - HELD THAT:- From the definition of renting of immovable property, it can be seen that a vacant land has been excluded from the term “Immovable Property”. It clearly justifies that even though such vacant land having facilities merely incidental to the use of such vacant land also falls under the exclusion category. As per the facts of the present case, on the vacant land there is only boundary wall which can be categorized as a facility incidental to u....... + More
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2023 (3) TMI 1011
Refund of service tax paid - Management or (Business) Consultant Service - refund sought on the ground that they had paid service tax through oversight because as per Service Tax Rules, tax should be collected and paid, whereas they paid the said service tax without collecting any tax amount from the customers (beneficiary farmers) - HELD THAT:- The appellants are a limited company created by a resolution passed by three State Government undertakings, which are its joint promoters and therefore are implementing as a nodal agency a Micro Irrigation Scheme of Government of Gujarat. It was held by Commissioner (Appeals) that On consideration, I am in agreement with the finding of the lower authority that the above services are in different areas which enable the farmers to efficiently manage their operations with regard to using the Micro Ir....... + More
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2023 (3) TMI 891
Condonation of delay in filing appeal - appeal dismissed on the ground of limitation in terms of Section 85(3A) of the Finance Act, 1994 as the same has been filed beyond prescribed period - whether this Tribunal has power to condone the delay in filing Appeal before the 1st Appellate Authority beyond the period prescribed by Section 85(3A) of the Finance Act, 1994? - rejection of refund claim under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-CE(NT) dated 18.6.2012. HELD THAT:- The provision of Section 85(3A) of the Finance Act, 1994 prescribes that an appeal before the Commissioner can be presented within two months from the date of receipt of the Order of the adjudicating authority. The proviso thereto unequivocally lays down that in case of delay in presenting the appeal, the discretion of the Commissioner (Appeals....... + More
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2023 (3) TMI 890
Refund claim - hit by mischief of unjust-enrichment as per Section 11 B (1) of Central Excise Act, 1944 or not - appellant have initially charged service tax to the customer, the same was further passed on by the said customers to any other person or not - HELD THAT:- There is no dispute that the appellant have initially charged service tax to the customer. Subsequently, the same was reversed by issuing the credit note to the customers, therefore, the incidence of the service tax paid by the appellant was not passed on this issue has been considered in the various judgments:- Reliance can be placed in the case of Addison & Co. Ltd. [2016 (8) TMI 1071 - SUPREME COURT], where it was held that Except for a factual dispute about the genuineness of the certificate issued by the Chartered Accountant and the credit notes raised by the Assess....... + More
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2023 (3) TMI 889
Levy of penalty under Section 77 and 78 of the Act - audit has found that the service tax with respect to the six months period from April 2013 to October 2013, which was not paid on accrual basis - suppression of facts or not - HELD THAT:- There is no deliberate default in payment of tax liability by the appellant. The issue is wholly interpretational in nature. Admittedly, the appellant was paying taxes regularly but there is only technical or venial breach of law, as they should have paid the tax on monthly basis. It appears the appellant was not properly advised by their consultant in the matter. Accordingly, it is found that there is reasonable cause for not depositing the tax on month to month basis. The penalties under Section 77 and Section 78 of the Act are set aside - appeal allowed.
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2023 (3) TMI 802
Classification of services - Management or Business Consultant services or Consulting Engineer services - Wrong availment of exemption under Notification No. 18/2002-S.T. dated 16.12.2002 by wrongly classifying the services imported from its group companies - on-inclusion of TDS in the taxable value of services received from outside India - invocation of extended period of limitation - revenue neutrality. Classification of the service - HELD THAT:- From the evidence on the record, particularly clauses from the agreement dated 03.03.2006 which are extracted in the Show Cause Notice, it is clear that the services rendered extend far beyond engineering to areas like procurement management, purchase negotiations, supplier selection, management information systems, trading and problem source identification, finance, advertising and communicati....... + More
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2023 (3) TMI 801
Cenvat Credit - Providing output service of renting of immovable property - credit of service tax / duty paid on construction services - Appellant utilized credit while discharging the Service Tax liability on the leasing of the property - extended period of limitation - HELD THAT:- It is seen that the appellant has taken Cenvat Credit of Rs.2,29,99,232/- during the period under consideration. When they are not eligible for Cenvat Credit on account of constructed property which is sold, they have been regularly reversing the Cenvat Credit. These facts are being regularly disclosed in the ST-3 Returns as well as in the accompanying letter submitted to the Range/Division officials. In respect of the constructed portion which is leased out by them, there is no dispute that the Service Tax is being paid on the lease amount received by them. I....... + More
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2023 (3) TMI 741
Refund of Krishi Kalyan Cess paid on services received for manufacture of goods - transportation of goods - Manpower supply-recruitment - maintenance and repair service - technical testing analysis service - CENVAT Credit of input services received for manufacture of goods namely transportation of goods, man power supply recruitment, goods maintenance and repair service, etc. - HELD THAT:- The amount of refund for KKC Rs. 5,46,759/- rejected, following the ruling of larger bench in the case of Gauri Plastic Culture Pvt Ltd. [2019 (6) TMI 820 - BOMBAY HIGH COURT] wherein it was held that a non-utilised portion of Cenvat credit cannot be claimed as refund in cash, distinguishing the ruling in Union of India vs. Slovok India Trading Company, as not a declaration of law under Article 141 of the Constitution. Credit have been admittedly taken ....... + More
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2023 (3) TMI 740
Refund of service tax paid - amount paid under mistake of law - applicability of time limitation and principles of natural justice - HELD THAT:- The present case is one where the service providers (i.e. NOMC and Haliburton) as also the service recipient (i.e. the Appellant) have discharged Service Tax on the same transaction and each party has deposited the said tax with the Department. The Department has received the amounts in question twice over and there is no inter-se reimbursement of the said tax between the parties. Though contractually it was the service providers who were to discharge the tax, since they had establishments in India, and then recover the same from the Appellant, the Appellant entertained a view that it was supposed to discharge Service Tax on reverse charge and directly paid the same to the Department. As is evide....... + More
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