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Service Tax - High Court - Case Laws
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2019 (9) TMI 1343
Consulting Engineering Services - receipt of certain services in the realm of testing, valuation and consulting engineering from abroad, stretching between the period 01.04.2005 to 17.04.2005 - validity of Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 - HELD THAT:- here the collection of the tax is itself without the authority of law, then the refund of tax collected thus, is also not bound by the rigour of that law. The provisions of Section 11 B and the rigour/procedure thereof would not be applicable or attracted to the present case. Admittedly, the petitioner has suo motu, complied with the provisions of Rule 2(i)(d)(iv) and having done so, the petitioner should not be expected to suffer on account of compliance - this writ petition should succeed and the amount of tax remitted be refunded to the petitioner within a period of four weeks from date of receipt of a copy of this order.
The collection of tax in terms of Rule 2(i)(d)(iv) prior to insertion of Section 66(A) is sans the authority of law. The petitioner is, without question, entitled to the refund sought for by it in this regard - the levy of interest would be justified for the period post the judgment of the Supreme Court dated 14.12.2009, confirming the position that the charge under Rule 2(i)(d)(iv) prior to the enactment of Section 66(A) is unconstitutional. Interest is awarded at the rate of 6% per annum from 05.05.2010 till date of payment - petition allowed in part.
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2019 (9) TMI 1315
Service tax on Ocean Freight - what is “CIF”, and how the CIF is different from the FOB contracts. - Striking down Rule 2(1)(d) (EEC) of the Service Tax Rules and Notification Nos.15/2017-ST and 16/2017-ST as ultra vires Sections 66B, 67 and 94 of the Finance Act, 1994, and ultra vires Articles 14 and 265 of the Constitution of India - striking down Rule (7CA) of the Rule 6 of the Service Tax Rules, 1994 and Explanation-V of Notification No.30/2012-ST dated 20.6.2012 as ultra vires Sections 66B, 67 and 94 of the Finance Act, 1994 and ultra vires Articles 14 and 265 of the Constitution of India - validity of Circular No.206/4/2017-ST dated 13.4.2017
HELD THAT:- The service proposed to be taxed under the impugned provisions is admittedly that of transportation of goods upto the Indian Port i.e. land mass of the country; and this service covering sea transportation of hundreds or thousands of KMs is an event occurring beyond the land mass of the country, and hence in the nature of an extraterritorial event. The provisions of the Finance Act, 1994, which is an Act of the Parliament for levy of service tax, do not permit nor empower the Central Government to collect service tax on such extraterritorial events, and the services which are rendered and consumed beyond the land mass of the country.
The charging provision i.e. Section 66B provides for levy of service tax on the value of services provided or agreed to be provided in the taxable territory by one person to another. Section 65B(52) defines “taxable territory” to mean the territory to which the provisions of this Chapter apply. As seen above, the provisions of this Chapter i.e. Chapter V, apply to the whole of India by virtue of Section 64(1) of the Finance Act; and thus it is the mandate of the Parliament for applying the provisions of Chapter V of the Finance Act for service tax to whole of India, and not to extraterritorial events occurring outside the land mass of India - In the present case, the Parliament has restricted the provisions of Chapter-V of the Finance Act in respect of service tax to events occurring in the taxable territory i.e. India by virtue of Section 66B (the charging section), Section 66B(52) and Section 64(1) and therefore the impugned Notifications issued by the Executive i.e. the Central Government by way of Rules, are beyond Sections 64, Section 66B and Section 65B(52) of the Finance Act. The impugned Rules and Notifications seek to levy and collect service tax on services rendered and consumed outside India, and therefore these provisions are ultra-vires the above referred three provisions of the Act made by the Parliament.
The impugned provisions i.e. Rule 2(1)(d)(EEC) and Explanation-V to Notification No.30/2012-ST are ultra vires Section 65B(44) defining “service” and Section 68, and also Section 94 of the Finance Act - Rule 6(7CA) amended by the Central Government is also ultra vires Section 67 and Section 94 of the Finance Act.
The Notification Nos.15/2017- ST and 16/2017-ST making Rule 2(1)(d)(EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge Notification No.30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside with all consequential reliefs and benefits - Application allowed.
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2019 (9) TMI 1152
Maintainability of appeal - monetary amount involved in the appeal - Levy of service tax - imposition of penalty - cleaning of railway wagons, cleaning of railway buildings and premises, cleaning and housekeeping of railway running rooms, water tightening of wagons in monsoon seasons etc. etc. - HELD THAT:- Having regard to the amount which is over all amount of ₹ 72,51,533/-, and the fact that even that amount has been directed to be bifurcated, this Court is of the opinion that the appeal falls within the mandatory limit prescribed by the circular dated 22/08/2019.
Appeal dismissed.
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2019 (9) TMI 1147
Jurisdiction of SCN - Power of Commissioner Service Tax-II Commissionerate, Kendriya Utpad Shulka Bhawan to hear SCN - whether the show cause notice dated 19th April, 2016 was without jurisdiction?
HELD THAT:- The stipulation in paragraph 4 of the said show cause notice that it could be adjudicated by the Commissioner Service Tax-II Commissionerate was in order - Therefore, the objection of the appellant as to jurisdiction has no substance at all in our opinion. The case needs to be adjudicated on merits.
However, we find from the records that in the absence of an interim order, the Service Tax Audit Commissionerate, Kolkata has on 17th March, 2017 adjudicated upon the show cause by passing an order. The appellants did not participate in it, because of the pendency of the appeal.
To do complete justice between the parties, we direct that the show cause notice is to be adjudicated on merits afresh. The adjudication made on 17th March, 2017 is set aside - Appeal disposed off.
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2019 (9) TMI 1105
Effective date for amendments in respect of service tax on supply of tangible goods - Since the respondent is not appearing by learned Counsel, service and issuance of notice of the appeal to be issued and served by 30th September, 2019. Learned advocate-on-record for the appellant is directed to file an informal paper book by 22nd November, 2019, serving a copy thereof upon the advocate-on record for the respondent not later than seven days before the date of hearing of the appeal.
List this appeal on 4th December, 2019.
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2019 (9) TMI 1088
Demand of Service tax - amount not received - respondent assessee, Indian Oil Corporation transported oil by pipeline from Bongaigaon to its Haldia refinery - HELD THAT:- Mr. Chakraborty, learned senior counsel appearing for the respondent submits that the service tax was payable on the amount received and not receivable. Since no amount was received, service tax was not paid - The lower adjudication authorities accepted this argument and did not entertain the demand of the appellant.
Application dismissed.
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2019 (9) TMI 955
Refund claim - alternate remedy of appeal - disputed question of facts involved - HELD THAT:- The Commissioner has stated that in absence of original documents, the claim could not have been processed. The list of documents relied upon by the Petitioner in this Petition shows that there were copies and not the original - Apart from this position, it cannot be said that there is any consensus as regard the fact that the necessary original documents were submitted by the Petitioner and were lost by the Respondent – Department - This aspect, in view of the statements in the impugned order and the affidavit-inreply, is a disputed question of fact.
Alternate remedy - HELD THAT:- Section 35 of the Central Excise Act provides an appeal to the Commissioner - Appeals. There is no dispute that the impugned order passed by the Assistant Commissioner is appealable under Section 35 to the Commissioner - Appeals. Therefore, this disputed question of fact has to be decided in the statutory appeal provided under Section 35 of the Act.
Thus, on both counts, that the Petition involved disputed question of fact and that a statutory remedy of appeal is available to the Petitioner, we are not inclined to exercise our writ jurisdiction - petition rejected.
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2019 (9) TMI 954
Permission for withdrawal of petition - security services to various Government Departments - HELD THAT:- Petition dismissed as withdrawn.
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2019 (9) TMI 838
Taxability - freight charged by the Petitioner’s to its customers - CENVAT Credit u/r 6(3)(i) of the Cenvat Credit Rules, 2004, read with Section 73 (1) of the Finance Act, 1994 - HELD THAT:- On the face of it the two impugned orders in respect of similar period has taken a contrary stand. If the freight charges are exempt as held in the impugned order dated 18 March 2019, then the demand of Service Tax as made in the impugned order dated 28 February 2019 cannot stand and vice versa. Revenue can be correct or rather on facts can only take one of the two stands and not confirm the notices taking a dramatically opposite views.
At the request of Mr.Jetly the Petition is adjourned to 27 September 2019.
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2019 (9) TMI 795
Service Tax Audit - Rule 5A - Held that:- Looking into the facts and circumstances of the case and looking to the provisions in Chapter V of the Finance Act, 1994 and Rule 5A of Service Tax Rules read with Sections 6(1) and (2) of the General Clauses Act and Sections 173 and 174 of the Central Goods and Services Tax Act, 2017, there is a prima facie case in favour of the petitioner. Balance of convenience is also in favour of this petitioner. - Irreparable loss will be caused to the petitioner, if the stay as prayed for, is not granted. - Audit proceedings stayed.
Application disposed off.
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2019 (9) TMI 794
Service Tax Audit - Rule 5A - Held that:- Looking to the provisions in Chapter V of the Finance Act, 1994 and Rule 5A of Service Tax Rules read with Sections 6(1) and (2) of the General Clauses Act and Section 173 and 174 of the Central Goods and Services Tax Act, 2017, there is a prima facie case in favour of the petitioner. Balance of convenience is also in favour of this petitioner. - Irreparable loss will be caused to the petitioner, if the stay as prayed for, is not granted. - Audit proceedings stayed.
Application disposed off.
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2019 (9) TMI 708
Rectification of mistake - impugned order rejects the rectification application merely on the ground that the order was dictated in the open Court and the objection now raised was not urged by the Petitioner at the time of hearing of the appeal leading to the order dated 5 July 2018 - HELD THAT:- The Respondents have not appeared despite service. However, it would be appropriate that we should give one more opportunity to the Respondents to present their case. In that view of the matter, we direct the Petitioner to serve the Respondents once again along with copy of this order. It is made clear that on the next occasion, if the Respondents do not appear, we are likely to consider the petition on merits for final disposal.
The petition is adjourned to 19 September 2019.
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2019 (9) TMI 707
Recovery of Service Tax - Post GST - proviso to section 73(1) of the Finance Act, 1994 (Finance Act) read with sections 142 and 174 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- We are not inclined to entertain this petition as only show-cause-notice is issued which involves investigation into facts. It is appropriate that the Petitioner responds to the same on merits and also bring to the notice of the Adjudicating Authority the decisions which, according to the Petitioner would conclude the issue in its favour.
It would be open for the Adjudicating Authority to consider the issue of limitation, merits and all other submissions made by the parties - petition dismissed.
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2019 (9) TMI 584
Validity of Recovery certificate - Rectification of error - error on the face of record or not - Section 74 of the Finance Act, 1994 - HELD THAT:- The petitioner failed to produce the relevant documents and to appear in the adjudication proceedings to make out a case and otherwise the Tribunal did not find mistake apparent on the face of record to rectify it.
Rectification can be done when there is a defect apparent on the face of the record and to be rectified - there is no defect of nature which could have been rectified by entertaining the application under Section 74 of the Act of 1994.
The application under Section 74 of the Act of 1994 is dismissed - petition dismissed.
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2019 (9) TMI 330
Permission for withdrawal of appeal - monetary amount involved in the appeal - activity of providing erection, commissioning and installation services/work contract services - HELD THAT:- At the time of hearing, learned counsel for the appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i.e. 11, 20, 077/- for the period from 2009-10 to 2012-13 and ₹ 59, 80, 109 alongwith applicable interest and penalty for the period 2013-14 is to be recovered, which is below the monetary limit of ₹ 1 Crore.
Appeal dismissed as withdrawn.
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2019 (9) TMI 329
Permission for withdrawal of appeal - Monetary amount involved in the appeal - Excess utilization of CENVAT Credit - It is alleged that respondent was entitled to utilize cenvat credit upto 20% of the service tax payable, whereas it was utilizing cenvat credit upto 100% of service tax payable - HELD THAT:- At the time of hearing, learned counsel for the appellant admits that in view of instructions dated 22. 8. 2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i. e. 94, 57, 161/- is to be recovered, which is below the monetary limit of ₹ 1 Crore.
Appeal dismissed as withdrawn.
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2019 (9) TMI 328
CENVAT Credit - input services - transportation of excisable goods from its Chennai Unit I to Jamshedpur Unit 2 of the Assessee itself - place of removal - applicability of the case of Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] in the facts of present case.
HELD THAT:- A closer and finer reading of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] would clearly reveal that the Hon'ble Supreme Court was concerned only with the controversy of Cenvat Credit on goods transported from the place of removal to the buyers' premises and not the transport of goods from one Unit of the Assessee to another Unit of the same Assessee. In the context of the factual background, the judgment of the Hon'ble Supreme Court, in view of the amended definition of the place of removal wherein the word 'upto' has been substituted for the word 'from' in clause 3 of Rule 2(l) which defines Input Services, cannot be applied to the facts of the present case.
The Hon'ble Supreme Court held that the Cenvat on goods transport agency availed for transport of goods from the place of removal of Assessee to the buyer's premises was not admissible to the respondent and that by necessary implication would mean that Input Services for transport of goods upto the final place of removal of goods by way of sale to the buyers would be so included.
The stark distinction of facts of the case before the Tribunal and the facts before the Hon'ble Supreme Court in Ultra Tech case should have been noticed by the final fact finding authority viz., the Tribunal before applying the judgment of the Apex Court to the facts of the case before it rather mechanically. It is the duty of the final fact finding body to analyse the facts of the case on hand appropriately and only after comparing the facts of the case before the higher Constitutional Courts, it should proceed to apply the ratios of the Judgments from the Constitutional Courts to the case before it - The misapplication of the Judgments without comparing the facts, can result in serious miscarriage of justice and can expose the non-application of mind by the responsible appellate forums like the CESTAT in the present case.
CENVAT Credit allowed - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 285
Permission for withdrawal of appeal - monetary amount involved in the appeal - Refund of unutilized CENVAT Credit - export of services - HELD THAT:- At the time of hearing learned counsel for the appellant by citing letter dated 5.9.2018 written by Assistant Commissioner (Legal) CGST Gurugram, seeks permission to writhdraw the present appeal, as the revenue involved in the present appeal is 22.22 lakhs which is below the thresh hold limit prescribed by the Central Board of Indirect Tax and Customs as contained in instructions dated 11.7.2018.
Appeal dismissed as withdrawn.
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2019 (9) TMI 284
Recovery of amount due to Central Government - threat of coercive action - the second respondent has called upon the petitioner to remit the admitted service tax along with appropriate interest, penalty and late fee under the threat of coercive action. Since there was no compliance with the notice measures were initiated in terms of the Revenue Recovery Act. - applicability of Certificate No.1 of 2013 issued under Section 11 of the Central Excise Act, 1944 - HELD THAT:- The provisions of the Finance Act, 1994 are adequate to support the action taken in the present case for recovery. No doubt, the Certificate referred to in the impugned communication states at the top 'Section 11 Certificate No.1/2012' - However, mere reference to Section 11 (without even reference to the statute) would not vitiate the Certificate itself. Clearly, the provisions of Section 87 (D) provide for the drawing-up of a certificate for tax arrears and that is what has been done in the present case.
The objections raised by the petitioner are seem to hyper-technical and rejected as such - Petition dismissed.
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2019 (9) TMI 245
CENVAT Credit - input services - insurance premium to ensure the deposits of its constituents with it to the different Insurance and Guarantee Corporation - HELD THAT:- Mr. Jetly, learned Counsel appearing for the Revenue submits that the impugned order dated 12th February, 2019 of the Tribunal has been challenged by the Revenue to the extent it has not imposed any penalty upon the appellant. Mr. Jelty, states that the appeal has been filed and the objections of the Registry are to be removed. Mr. Jetly, further undertakes to remove the objections within one week, so the Revenue’s appeal as well as the appellants appeal could be heard together - This appeal along with the Revenue’s appeal, particulars of which would be given by Mr. Jetly to the Court Associate, be listed on 13th September, 2019.
Stand over to 13th September, 2019.
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