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Service Tax - Appellate Tribunal - Case Laws
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2023 (5) TMI 1195
Short payment of service tax - subsequent adjustment with excess tax paid - appellant submits that the mistake of short or excess payment has occurred due to the newly introduced Works Contract Service - Rule 6 (4A) of STR, 2004 - HELD THAT:- On going through the records of the case and the reconciliation statements submitted by the appellant, it is clear that the appellant has certainly short paid service tax in initial months of April, August and September and excess paid in the months of May, June and July. On reconciliation they have paid the service tax liability along with interest and reflected the same in the returns for the period October 2007 to March 2008. We find that the adjudicating authority simply goes by the show cause notice and bases his confirmation of service Tax on the appellants on the entries made in the ST-3 re....... + More
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2023 (5) TMI 1194
Refund of service tax paid - Custom House Agents - Technical Testing and Analysis Agencies - denial on the ground of time limitation - denial also on the ground that the conditions set out in the N/N. 17/2009-ST dated 07.07.2009 have not been fulfilled by the appellant. Time Limitation - HELD THAT:- As per para 2(f) the notification No.17/2009, the refund has to be filed within a period of one year. In these appeals, it is seen that the refund claim for different quarters has been entirely rejected by the authorities below. It is submitted by the Ld. Counsel that a few shipping bills may be beyond the time limit. The authorities below ought to have considered the refund claims in regard to shipping bills which are within the time limit of one year. The entire claim for a quarter cannot be rejected merely because few of the shippin....... + More
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2023 (5) TMI 1193
Levy of Service Tax - business auxiliary service - Tea, an agricultural produce or not - eligibility for exemption in terms of N/N. 13/2003-S.T. dated 20.06.2003, as amended by N/N. 08/2004-S.T. dated 09.07.2004 - denial of benefit on the ground that Black Tea is manufactured by the appellant after multiple processes wherein green tea leaf is converted into Black Tea, which would fall under Chapter 9 of the CETA, 1985 and that the same would no longer remain an agricultural produce of green leaf tea. HELD THAT:- The meaning of 'agricultural produce', as extracted in the above paragraphs per Notification No. 08/2004 ibid. undoubtedly covers, inter alia, Tea, but, as specified therein, does not include manufactured products such as sugar, edible oils, processed food and processed tobacco. Therefore, the activity of manufacture....... + More
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2023 (5) TMI 1154
Levy of Service tax - selling passenger cars and also provide free services to their customers during warranty period - cost of materials/spares reimbursed by M/s. TATA Motors - cost of spares and accessories reimbursed for free services provided during the warranty period has to be included in the taxable value or not. HELD THAT:- The department has relied upon Rule 5 (1) service tax (determination of value 2006) which reads wherein expenditure or costs are incurred by the service provider in the course of providing taxable service, all such expenditure or costs shall be treated as consideration for the taxable services provided or to be provided and shall be included in the value for the purpose of charging service tax on the said notification . This Rule was under consideration before the Hon ble Supreme Court in the case of UNI....... + More
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2023 (5) TMI 1153
CENVAT Credit - rendering both taxable and exempted services and having not maintained separate accounts - providing the interconnection service, was also collecting interconnect usage charges (IUC), the tax on which was being remitted by the appellant only from 01.06.2007 - non-payment of service tax on interconnection service - period from April 2005 to May 2007 - extended period of limitation. Suppression of fact or not - providing interconnection service and receiving charges for the same - suppressed the fact of not maintaining separate accounts, as required under the statute. Whether the Revenue is justified in holding that the appellant had utilized the CENVAT Credit in excess of the 20% limit prescribed under Rule 6(3)(c) of the CENVAT Credit Rules, 2004 and whether the consequential demand for recovery of the alleged ....... + More
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2023 (5) TMI 1152
Condonation of delay in filing appeal - sufficient explanation for delay provided or not - appeal dismissed only for the reason that it was filed beyond the statutory time period contemplated under section 85 of the Finance Act, 1994 - HELD THAT:- A perusal of sub-section (1) of Section 85 shows that any person aggrieved by any decision or order passed by the Adjudicating Authority, may file an appeal to the Commissioner of Central Excise (Appeals). Sub-section (3A) of section 85 provided that the appeal shall be presented within two months from the date of receipt of the order of such Adjudicating Authority but the proviso provides 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 wi....... + More
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2023 (5) TMI 1151
CENVAT Credit - common input services used in providing taxable services and exempted services - non-maintenance of separate record for the Cenvat credit availed as per Rule 6(2) of the Cenvat Credit Rules, 2004 - non-payment of amount as provided under Rule 6(3) ibid - whether the adjudicating authority was correct in holding that once the credit availed on common inputs /service is reversed, the appellants are not required to reverse the amount as contemplated under Rule6(3A)(ii) of the said Rules? HELD THAT:- Adjudicating authority has recorded a finding that there are plethora of decisions of various appellate forums wherein it was consistently held that when the entire Cenvat credit stands reversed, it is as good as not availing the credit. The learned Commissioner has relied upon the decision of High Court in the COMMISSIONER ....... + More
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2023 (5) TMI 1150
Modification in the quantum of penalty - Exemption from service tax in respect of value of goods and materials sold by the service provider while providing the service - benefit of N/N. 12/2003-ST dated 20.06.2003 - Maximum penalty of Rs.2,74,400/- in terms of Section 77 (1) (a) of the Finance Act, 1994 - failure to take registration - invocation of extended period of limitation. Whether the appellant has been rightly denied the benefit of Notification No. 12/2003-ST dated 20.06.2003, which provide for exemption from service tax in respect of value of goods and materials sold by the service provider while providing the service? - HELD THAT:- The lower adjudicating authority has held that the appellant has not produced any evidence regarding consumables or spare parts used while providing the AMC service to its customers and the se....... + More
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2023 (5) TMI 1131
Refund claim - rejection on account of certain invoices not being submitted within the limitation period of one year in terms of Section 11B of the Central Excise Act, 1944 - rejection also on the ground of availment of CENVAT Credit on account of non-registration of premises as well as availing CENVAT Credit on certain invoices even before payment of Service Tax. Non-registration of premises - Whether the respondent herein is eligible to avail the CENVAT Credit on inputs / input services without registration of its premises? - HELD THAT:- The Hon'ble Madras High Court in the case of COMMISSIONER OF SERVICE TAX-III, C has held that in the absence of any statutory provision prescribing registration of premises as mandatory for availing input service tax credit, the assessee could not be denied refund of unutilized CENVAT Credit....... + More
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2023 (5) TMI 1130
Reverse Charge Mechanism - levy of service tax - suppression of value - legal, professional and consultancy expenses - security expenses - manpower and security service - invocation of extended period of limitation - HELD THAT:- The show cause notice does not contain the gist of allegations for raising the demand on RCM basis. The provisions of service tax read with the rules thereunder do not provide for raising of demand on the basis of apparent difference in the figure of expenses in the balance sheet and the amount offered for service tax in the ST-3 Returns. This court takes judicial notice that the demand under service tax on reverse charge mechanism, has to be worked out and calculated transaction wise-wise and invoice-wise. In absence of such exercise, it is found that the show cause notices is vague and fit to be held misconceived and mis-directed. The impugned order set aside - appeal allowed.
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2023 (5) TMI 1081
CENVAT Credit - providing taxable as well as exempted services - non-maintenance of separate records - contravention of Rule 6 (3) of Cenvat Credit Rules, 2004 - availment of credit of input services utilized in the execution of works contract service. HELD THAT:- The appellant has filed/submitted ST-3 returns for the period April to September 2009, in which they have certainly shown the amount received towards exempted services other than export in respect of Industrial or Commercial Construction Service and nil in respect of Residential Construction Service and Works Contract Service. However, on going through the ST-3 returns for the period 2009-2010, we do not find any such declaration on the part of the appellant. The appellant claimed that they have not availed Cenvat credit, either on inputs or on input services, in respect o....... + More
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2023 (5) TMI 1080
Recovery of Service tax with interest and penalty - levy of service tax on the amount deducted by the appellant from the vendors towards liquidated damages as they failed to supply the goods/execute the work within the stipulated time - HELD THAT:- For the period prior to 01.07.2012 collection of amount towards liquidated damages was not included in any of the specified taxable services under any of the clauses of sub-section (105) of section 65 of the Finance Act, 1994. Thus, no service tax could have been levied on the amount of liquidated damages so collected. In M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR [ 2020 (12) TMI 912 - CESTAT NEW DELHI] , the Tribunal held that liquidated damages recovered on account of breach or non-performance of contract are not consideration in view....... + More
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2023 (5) TMI 1027
Levy of Service Tax - Business Support Service (BSS) - value added services provided by the overseas entity - appellant is the recipient of such service in India - commission charged from the appellant - reverse charge mechanism. Value added services - HELD THAT:- Apart from supplying the rough diamonds to the appellants, the overseas entity had supplied the value added service to the appellant, which were levied with the service tax demand by the department confirming those services to fall under the scope and ambit of the taxable service namely Business Support Service. The VAS services include supply of planning tools services which include continuity of supply, Intention to offer, Consistency of Boxes, sight holder Extranet services, SOC integrity (3rd party verification) provision of key Account Manager provided by them, as a....... + More
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2023 (5) TMI 1026
Levy of Service Tax - Business Auxiliary Service (BAS) - Sharing of Revenue - services provided by unincorporated joint venture to its constituent members - principal-to-principal basis or not - tax on share of Gross Win received from the Joint Venture Entity - the Joint Venture Entity. The period in dispute is from October, 2008 to March, 2013 - applicability of circular No. 179/5/2014-S.T., dated 24/9/2014 issued by Tax Research Unit of CBIC in F. No.354/187/2013-TRU - HELD THAT:- A perusal of the joint venture agreement indicates that out of the net collections from the clients (after deducting the winning amounts), these are settled, by paying 55% to M/s GGCPL and 45% to M/s BAPL. Upon analysis and scrutiny of the joint venture agreement, including the terms and conditions mentioned therein, the adjudicating authority by relying....... + More
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2023 (5) TMI 1025
Denial of CENVAT credit - service tax paid on hotel halls booked for business activity and hotel stay expenses - Nexus with output services (of market research) - HELD THAT:- The show cause notice was issued by Revenue for denial of CENVAT Credit on above stated input services. Since, the show cause notice was issued by Revenue, burden of proof was on Revenue to establish that the hiring of halls and hotel rooms had no nexus with the output services. Whereas the finding as recorded by both the original and appellate authorities did not indicate that the burden of proof is discharged by Revenue. Both the Order-in-Original and Order-in-Appeal in the present matter are not sustainable. The above stated two activities are input services for the appellant for providing output services of market research and, therefore, service tax paid on above stated input services is admissible to the appellant for CENVAT Credit - appeal allowed.
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2023 (5) TMI 1024
SEZ unit - Refund claim - SEZ units are not liable for payment of service tax on the input services as per various notifications issued by the Government of India - input services or not - Renting of Immovable Property Services - Club Association Membership Services - Waste Management Services - nexus with output services or not - Cleaning Services - Event Management Services - Business Support Services - supporting documents i.e. invoices / details not submitted - Common / shared input services utilised at both the premises i.e. within the SEZ and outside SEZ. Contention that Renting of Immovable Property Services, Club Association Membership Services and Waste Management Services are not included in the list of specified services approved by SEZ authorities - HELD THAT:- The competent authority under the SEZ Act, i.e. the De....... + More
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2023 (5) TMI 1023
Refund claim - doctrine of unjust enrichment - Period of limitation - freight inward and freight outward for the period pertaining to April 14 to March 2015 - service tax paid on transportation of Chemical Fertilizer from the different buyers and transported the same by Road to their Pulgaon Factory and the same type of transporting is Exempt Under Notification No- 25/2012 - HELD THAT:- Undisputedly the refund claim has been filed by the appellant much beyond the prescribed period of limitation as per the Section 11 B of the Central Excise Act, 1944 as made applicable to the cases of Service Tax by Section 83 of the Finance Act, 1994. The finding recorded by both the authorities, on this aspect cannot be said to be perverse and should not be interfered with. The impugned order has relied upon series of the decision rendered in the matt....... + More
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2023 (5) TMI 975
Refund of service tax paid under a mistake of fact and law - applicability of provisions of section 11B of Excise Act, 1944 for claiming refund before the expiry of one year from the relevant date - applicability of principles of unjust enrichment - manpower recruitment or supply agency services - reverse charge mechanism - HELD THAT:- Provisions of section 11-B of the Excise Act relating to limitation would not be applicable in case where payment was made purely on account of a mistake in understanding the Notification. In Commissioner of Central Excise (Appeals), Bangalore vs KVR Construction [ 2012 (7) TMI 22 - KARNATAKA HIGH COURT ], service tax was paid by the assessee under a mistaken notion that it was liable to pay, though it was not liable to pay by virtue of a Circular dated 17 September, 2004 and, accordingly, a refun....... + More
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2023 (5) TMI 974
Rejection of SVLDRS Application - rejection on the ground that while the Appellant has opted to take advantage of SVLDR Scheme, they did not Appear in the Personal Hearing granted when the Department has raised the demand for balance of Rs.23,002/- - HELD THAT:- This is a peculiar case where the Appellant had paid the entire amount of confirmed demand of Rs.17,43,346/- along with interest of Rs.5,98,748/- and also had made some more pre-deposit at the time of filing the Appeal before the Tribunal. Under the SVLDR Scheme for the amount confirmed against this Appellant, mere payment of about Rs.6,00,000/-would have been enough to get the benefit of this scheme. The Department failed to note that at the very first stage they have paid Rs.10,00,000/- whereas only Rs.5,00,000 was appropriated in the OIO and also noted as deposited by the Ap....... + More
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2023 (5) TMI 971
Short payment of service tax - Cross utilization of CENVAT Credit - input services - HELD THAT:- With effect from 2004 when Cenvat Credit Rules, 2004 were issued, it was stated clearly that cross utilization of Cenvat credit on inputs, input services is being allowed for payment of central excise duty and service tax. That being so, there are no merits in the submissions made by the Revenue that utilization of Cenvat credit for payment of output service tax liability of the appellant can be faulted with. The issue in the case of M/S ICICI PRUDENTIAL ASSET MANAGEMENT CO. LTD. VERSUS COMMISSIONER OF C.G. ST., MUMBAI EAST [ 2019 (11) TMI 1466 - CESTAT MUMBAI] was also not in respect of such cross utilization. In para 8 of the said order, the issue is in respect of denial of Cenvat credit and not of the utilization of the said credit. There are no merits in the impugned order, set aside the same and allow the appeal.
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