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Service Tax - Tribunal - Case Laws
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- 2020 (11) TMI 925 - CESTAT CHANDIGARH
Business Auxiliary Services - promotion or marketing of goods produced or provided by or belonging to the client - transfer of right to use - demand of interest and penalties - extended period of limitation - HELD THAT:- The issue has been dealt by this Tribunal in appellant’s own case for the earlier period, wherein this Tribunal observed that The imposition of restrictions or conditions in respect of the usage and consumption of the concentrate, by the seller cannot alter that position. Hence there are no merit in the submission of the Authorized Representative that this transaction was not a truncation of sale but only “transfer to use”. As issue has already been settled in favour of the appellant, therefore, no demand of service tax is sustainable against the appellant - appeal allowed - decided in favor of appellant.
- 2020 (11) TMI 797 - CESTAT HYDERABAD
Rectification of Mistake - error apparent on the record - typographical error or not - the foreign exchange in respect of appeal has been realised on 27.04.2016, 27.05.2016 & 28.06.2016 but the claim was filed only on 28.07.2017 - HELD THAT:- There was indeed a typographical error in mentioning the date of receipt of foreign exchange as 27.04.2016 instead of 27.07.2016. However, since this is not a case pertaining to the transitional period where the exports were made prior to 01.03.2016 and refund claim filed after the date, the ratio of the judgment of the Hon’ble Larger Bench in the case of CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] does not apply. It does not come to the rescue of the appellant since the application for refund was filed after one y....... + More
- 2020 (11) TMI 753 - CESTAT BANGALORE
Non-payment of service tax - Management or Business Consultant Service or Information Technology Software Service? - modification and customization of software, install the software for use on the equipment for trading, providing support through remote access using the internet as a medium, sending engineers to the site of customers, provide additional training required by the customer from time to time - HELD THAT:- The learned Commissioner after examining the services rendered by he appellant has come to the conclusion that the activities carried out by the appellant is covered under the category of Enterprise Resource Planning (ERP) Software Application and the same is rightly classifiable under the category of Management or Business Consultant service and are liable for service tax - After carefully considering the definition of Manag....... + More
- 2020 (11) TMI 624 - CESTAT HYDERABAD
Works Contract Service - exemption under Sl. No. 12(a)/12A of Notification No. 25/2012-ST dated 20.06.2012 - erection, commissioning and installation of transmission lines for various Government companies / corporations - service tax on the reimbursement of amount towards crop compensation, right of way, from the service recipient, being incidental to the works contract executed - Difference of Opinion. HELD THAT:- In view of difference of opinion, the following question(s) arise for consideration. 1. Whether the view of Member (Judicial) is correct, holding that within the extended meaning of Article 243W, read with 12th Schedule of the Constitution, ‘Transmission and Distribution of Electricity’ is included; Or as held by learned Member (Technical) that ‘Transmission and Distribution of Electricity’ is not includ....... + More
- 2020 (11) TMI 622 - CESTAT KOLKATA
Taxable Service or not - payment of remuneration in the nature and form of commission based on percentage of profit to whole time directors - reverse charge mechanism (RCM) - demand of service tax on fixed part as well as the variable pay - benefit of N/N. 30/2012-S.T., dated 20th June 2012 - It is the case of the Department that the said remuneration paid to the Directors would constitute ‘service’ liable to service tax in the hands of appellant assessee under reverse charge mechanism - HELD THAT:- Section 2(94) of Companies Act, 2013, duly defines ‘whole-time director’ to include a director in the whole-time employment of the company. A whole-time Director refers to a Director who has been in employment of the company on a full-time basis and is also entitled to receive remuneration. The certificate issued by the....... + More
- 2020 (11) TMI 621 - CESTAT NEW DELHI
CENVAT Credit - proper invoices or not - validity of invoices/ bills issued to their office which is unregistered - requirement of Central Excise Registration or ISD Registration for availing CENVAT credit on the invoices issued on a different address - rule 4A of the 1994 Rules read with rule 9 of the 2004 Rules. HELD THAT:- Once the requirement of rule 4A of the 1994 Rules and rule 9 of the 2004 Rules are satisfied, the benefit of CENVAT credit could not have been demanded. Thus, the Commissioner was not justified in denying the benefit of CENVAT credit on the unregistered premises. The Commissioner has further held that the benefit of CENVAT credit for services received by the Appellant on the strength of invoices addressed to another unit is not admissible as the Appellant failed to take Central Registration or ISD Registration to ava....... + More
- 2020 (11) TMI 619 - CESTAT CHENNAI
Valuation - inclusion of balance amount which is in the nature of Travelling Expenses and Boarding Expenses - reimbursable expenses or not - HELD THAT:- The demand is made on the amount that has been incurred by the appellant for travelling as well as lodging expenses. These are nothing but reimbursable expenses and the appellant has paid service on Audit Fee received as consideration for the service rendered - Demand do not sustain - appeal allowed - decided in favor of appellant.
- 2020 (11) TMI 583 - CESTAT BANGALORE
Application for early hearing of the present appeal - recovery of portion of the service tax amounting to ₹ 50,00,000/-, which was already deposited by the appellant on 08/03/2013 itself - HELD THAT:- This is a fit case for granting early hearing and accordingly, the early hearing application is allowed - Registry is directed to list this case for final hearing on 09/11/2020.
- 2020 (11) TMI 582 - CESTAT MUMBAI
CENVAT Credit - input services - service tax paid on the insurance premium paid to DICGC - service tax paid on the commission paid to the brokers for underwriting the government securities etc and for making investments in securities to maintain mandatory SLR as per the Banking Regulation Act, 1949 - levy of penalty. HELD THAT:- Matter referred to Hon’ble President for referring the matter to larger bench, for resolving the issues as follows: a. Whether the interpretation of the legal provisions contained in Section 65 and 66 of the Finance Act, 1994 made in the decision of the CESTAT, in case of South India Bank, satisfy to the test laid down by the five member bench of Hon’ble Supreme Court in case of Dilip Kumar and Co, referred above. b. Whether the CENVAT credit of the Service Tax paid on the services availed to fulfill a....... + More
- 2020 (11) TMI 581 - CESTAT BANGALORE
Non-imposition of penalty u/s 76 of FA - Commercial or Industrial Construction Services - Department submits that Section 78 of Finance Act, 1984 was amended w.e.f. 10.05.2008 only to provide that penalty under Section 76 need not be imposed if penalty under Section 78 is imposed - Effect of amendment, retrospective or prospective? - Difference of Opinion. HELD THAT:- In view of the difference of opinion, the following questions arise for consideration by the learned 3rd Member:- (1) Whether penalty under Section 76 and 78 are prescribed for different type of violations and are mutually exclusive as held by Member (Judicial) OR that both the penalties can be imposed simultaneously as held by Member (Technical). (2) Whether the amendment brought in Section 78 by Finance Act, 2008 by addition of proviso (w.e.f. 10.5.2008) providing that whe....... + More
- 2020 (11) TMI 580 - CESTAT KOLKATA
Nature of services - applicability of service tax or VAT - glass bottles and crate rentals - Supply of tangible goods service or not - Appellant has contended that the supply of glass bottles and crates amounted to deemed sale, which was liable to VAT/sales tax as the effective control and possession of the goods were transferred by the Appellant - extended period of limitation - demand of interest and penalty - HELD THAT:- The issue is settled by the judgment of the Hon’ble Andhra Pradesh High Court in the Writ Petitions No. 21115/2005, No. 856/2006 and No. 25588/2007 [2013 (1) TMI 1009 - ANDHRA PRADESH HIGH COURT], where it was held that such crate rentals would be liable to VAT/Sales tax on the ground that it amounted to deemed sale of crates inasmuch as there was transfer of right to use with effective control and possession of ....... + More
- 2020 (11) TMI 538 - CESTAT AHMEDABAD
Short payment of Service Tax - Works Contract Services - Commercial of Industrial Building and Civil Structures and Erection Commissioning and Installation service - period is from October, 2004 to March, 2007 i.e. before 01.06.2007 - HELD THAT:- There is no dispute that the service provided by the appellant is otherwise specified under Works Contract Service. The criteria for qualification of Works Contract Service is that the service should be provided along with material. It is obvious that when the services on construction is provided along with the material the assessee needs to pay VAT or the Works Contract Tax. From the above contract it is seen that the appellant is required to provide the service along with material like Cement, Metal, Steel Reinforcement, Sand, Charcoal, Salt and Earting Material. Moreover, in respect of the Wor....... + More
- 2020 (11) TMI 537 - CESTAT KOLKATA
Levy of Penalty u/s 78 of FA - Non-payment of service tax - Renting of Immovable Property Service - amnesty scheme - VCES scheme - HELD THAT:- The service tax has been duly paid and informed to the Department well before the issuance of Show Cause Notice Applicable interest has also been deposited subsequently as noted by the Learned Commissioner (Appeals) in the impugned order. The tax amount for the period in dispute has been deposited together with the previous period covered under the VCES scheme in installments as noted in the original order - There are no positive evidence has been brought on record in the entire proceedings that non-payment of tax was attributable to reasons to deliberately evade payment of tax. Moreover, the appellant is a PSU in the instant case. The Courts have consistently held that there is a presumption that PSU would not have intention to evade payment of duty or tax. Penalty do not sustain - appeal allowed - decided in favor of appellant.
- 2020 (11) TMI 536 - CESTAT NEW DELHI
Levy of Service Tax - Healthcare services/Business Support Services - revenue sharing - whether service tax is payable by the appellant for having allowed usage of the infrastructure provided by it to the contracted doctors? - HELD THAT:-This precise issue was considered by the Tribunal in connection with the earlier show cause notice to the appellant which involved the period both before and after July 1, 2012. The Tribunal held, after a careful consideration of the conditions prescribed in the agreement, that the arrangement was for joint benefit of both the parties with shared obligations, responsibilities and benefits. The Commissioner was not justified in confirming the demand of service tax under “business support service” - Appeal allowed - decided in favor of appellant.
- 2020 (11) TMI 534 - CESTAT NEW DELHI
Classification of services - Cleaning services or not - Appellant is engaged in the manufacture of lubricating oil/ grease and break oil and also in the refining of waste oil - Department formed a view that by incinerating the waste of other industries, the Appellant was rendering ‘cleaning activity’ services in terms of section 65(24b) of the Finance Act, which is taxable under section 65(105) (zzzd) of the Finance Act - HELD THAT:- A reading of the scope of cleaning activity under section 65(24b) of the Finance Act would indicate that the essence of the activity is to clean either an object which is present within the premises or the premises itself of a commercial building/factory/plant or machinery. These services are rendered by the service provider at the premises of the recipient, where the intended objects or premises ....... + More
- 2020 (11) TMI 512 - CESTAT AHMEDABAD
Principles of Natural Justice - the request of the appellant for granting of cross-examination of the witnesses has been denied - HELD THAT:- There is no dispute that the witnesses of which cross-examination has been sought for by the appellant have given their statements during investigation and such statements were relied upon in the Show cause notice. Some of the statements given by the third parties. The appellant for making their effective defence wish to cross-examine the witnesses. The appellant should be given all the opportunity for making their defence including the cross- examination. Denial of cross- examination will amount to unfair justice in the case and also violation of principles of natural justice. When the noticee seeks for cross examination of witnesses, in the interest of justice and as mandated in section 9D of Cent....... + More
- 2020 (11) TMI 461 - CESTAT KOLKATA
Classification of services - Maintenance and Repair service or otherwise - Charter hire of workover rigs - Extended period of limitation - HELD THAT:- The scope of work has been stated in Annexure - III appearing on page No. 85 of the appeal book, which inter alia states that, “contractor shall be required to start work over, and if required, complete the development / exploratory wells for ONGC by deploying its mobile work over unit at such locations within the operating area as may be identified by ONGC, and to such depth as are designated by ONGC to exploit natural hydrocarbon in the form of oil & gas”. Thereafter, in subsequent paragraph, it has been stated that other specified jobs shall also be carried out during the said work over operations, which are not limited to what has been expressly stated therein. The learn....... + More
- 2020 (11) TMI 437 - CESTAT NEW DELHI
Classification of services - site formation service or mining services - providing mobile drilling services to companies in the oil and gas industry - According to the Department, the appellant had rendered site formation service from April 1, 2006 upto May 31, 2007 - whether the appellant had rendered site formation service for the period April 1, 2006 to May 31, 2007, which is the period prior to June 1, 2007 when mining services became taxable? - Extended period of Limitation - HELD THAT:- It is clear from the definition contained in section 65 (97)(a) of the Finance Act that site formation includes drilling, boring and core extraction services for construction, geophysical, geological or similar purposes. It will also be pertinent to refer to the Circular dated July 27, 2005 that was issued by the Government of India in connection wit....... + More
- 2020 (11) TMI 436 - CESTAT NEW DELHI
Renting of immovable property service - Appellant had entered into agreements with films Distributors under which the theatrical exhibition rights for exhibition of the films were transferred to the Appellant, either for a specified number of shows and period or in perpetuity - Bundled services - period October 2008 to March 2014 - HELD THAT:- A perusal of the agreements between the Appellant and the Distributors would also make it abundantly clear that it is the Appellant who makes payment to the Distributors for grant of theatrical rights. This clearly indicates the flow of service and the consideration. Thus, as it is the Appellant who pays a fixed consideration to the Distributor, no service tax can be levied on the Appellant. This issue also came up for consideration before a Division Bench of the Tribunal in M/S. MOTI TALKIES VERSUS....... + More
- 2020 (11) TMI 435 - CESTAT MUMBAI
Demand of service tax - SEBI - ‘negative list regime’ - demand of tax on the fees collected, under the authority of the various Rules and Regulations notified for administration of the financial market in India, and retained in the General Fund of the appellant - Extended period of limitation - HELD THAT:- The legislation, enforcement of laws and administration of justice are sovereign functions. We also deduce that the discharge of these functions may be subject to such laws as the competent legislative authority intends it to be so; consequently, statutes, not especially dealing with these specifically, do not immunize the discharge of sovereign functions if the legislative intent, stated or implied, does not exclude such subordination. The requirement of goods in the operating establishments of government cannot be equated ....... + More
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