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- 2020 (3) TMI 1183 - CESTAT CHENNAI
Valuation - bank collects charges for dishonouring of the cheques, which are recovered by the appellant from their clients - inclusion of such reimbursable charges in assessable value or not - Rule 5(1) of Service Tax [Determination of Value] Rules, 2006 - period involved is From Sept.’04 to Jun.’09 - HELD THAT:- There is dispute with the amount collected by the appellant from their clients is equal to the amount that the appellant pays to the bank due to dishonouring of cheques. Therefore, we are satisfied that the said expenses are reimbursable expenses. By applying the rule of Hon’ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT] it is held that the demand against the appellant is not sustainable. Appeal allowed - decided in favor of appellant.
- 2020 (3) TMI 1182 - CESTAT CHENNAI
CENVAT Credit - input services - service tax paid on rent of premises which is used as office of the company outside the company - Department was of the view that the appellant is not eligible for credit of service tax paid towards rent as well as maintenance charges for the premises outside the factory - HELD THAT:- The restriction that credit can be availed for materials that has been brought into the factory is applicable only in the case of inputs and not that of input services. In regard to input services, it is immaterial whether the services are availed within the factory or outside the factory. It is only necessary that the manufacturer has to avail it in relation to the manufacture of the final product. In the present case, the department does not dispute that the said premises is used by the appellant as office for their manufac....... + More
- 2020 (3) TMI 1156 - CESTAT HYDERABAD
Club or Association Service - Mutuality of Interest - distinct entities or not - providing various facilities and advantages only to its members and collects amounts from them in the form of subscriptions, tennis fee, billiards fee, games fee, gym fee, building fund, rent for roof garden etc. - relevant period 16.06.2005 to 31.03.2009 - HELD THAT:- There is no doubt that the service has been rendered and amounts have been received for the service from the members - This specific question of law was decided by the Hon’ble High Court of Jharkhand in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT]) and it was held that club is formed on the principle of mutuality and therefore if the club provides services to its members, it is not a service by one legal entity to another and is not liable to service tax. Appeal allowed - decided in favor of appellant.
- 2020 (3) TMI 1099 - CESTAT ALLAHABAD
Refund of service tax - rejection on the ground of time limitation - service tax paid on various activities, which were exempt from service tax in terms of Mega Exemption N/N. 25/2012-ST dated 20/06/2012 - HELD THAT:- Every refund claim arises on account of fact that the same was not required to be paid - Reference can be made to the Hon’ble Madras High Court decision in the case of ASSISTANT COMMISSIONER OF SERVICE TAX, CHENNAI VERSUS M/S NATARAJ AND VENKAT ASSOCIATES [2014 (5) TMI 179 - MADRAS HIGH COURT] laying down that the refund claim beyond the period of limitation provided under law is totally barred by limitation. Even the fact that the tax was paid under a mistake of law, cannot be adopted for grant of such refund. There are no justifiable reasons to interfere in the impugned order of Commissioner (Appeals) - appeal dismissed - decided against appellant.
- 2020 (3) TMI 1098 - CESTAT BANGALORE
Club and Association Service - Levy of service tax - advance entrance/enrollment fee collected from prospective members - Mutuality of interest - HELD THAT:- The issue herein is squarely covered in favour of the appellant/assessee by Hon’ble Supreme Court in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] and also by the Hon’ble Jharkhand High Court in the case of RANCHI CLUB LTD. VERSUS CHIEF COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX [2012 (6) TMI 636 - JHARKHAND HIGH COURT] where it was held that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members’ clubs in the incorporated form. Thus, there being mutuality of interest between the club and its members, there is no transfer of ownership of the service - appeal allowed - decided in favor of appellant.
- 2020 (3) TMI 1002 - CESTAT CHENNAI
Maintainability of appeal - time limitation - it is submitted that the order passed by the adjudicating authority dated 27.1.2011 was not served on the appellant - Business Auxiliary services - non-payment of service tax - HELD THAT:- The Commissioner (Appeals) has dismissed the appeal observing that it is time-barred and also noting that the Order-in-Original was received and acknowledged by the appellant on 10.2.2011. However, on perusal of records, we do not find any document to show that the appellant has been served with the copy of the Order-in-Original dated 10.2.2011. Though the Bench directed the department to produce documents to prove that the Order-in-Original has been served to the appellant, they have not been able to do so. The appellant has to be given a chance to contest the case on merits - The impugned order is set aside and the appeal is allowed by way of remand to the Commissioner (Appeals).
- 2020 (3) TMI 916 - CESTAT AHMEDABAD
Nature of activity - service or sale - appellant has made payment towards tanker hire charge to various foreign suppliers in foreign currency for hiring ISO tanker which was mostly used for export purpose - case of Department is that ISO tank owned in such a case does not transfer the right of possession and no VAT/Sales Tax has been paid, it is liable to classify under “supply of tangible goods service’ - reverse charge mechanism - HELD THAT:- The appellant have referred to a contract under which ISO tank was hired by them on lease from foreign supplier. The Adjudicating Authority as well as the appellate authority has held that the renting of ISO tank falls under the category of “supply of tangible goods service” only on the reasoning that there is no transfer of right of possession and effective control in respe....... + More
- 2020 (3) TMI 915 - CESTAT NEW DELHI
Liability of service tax of sub-contractor - appellant’s contention was that the main contractor has discharged the entire service tax liability on the full amount including the service tax liable to be paid by the appellant as sub-contractor - HELD THAT:- Admittedly, prior to the declaration of law by the Larger Bench of the Tribunal, in favour of the Revenue, there were catena of judgements laying down that if the main contractor has paid the entire service tax liability in respect of a particular contract, the demand against the sub-contractor would not survive. The lower authorities have expressed their doubt about the payment of the entire service tax by the principal contractor, which fact requires verification and examination by the lower authorities. As such, for the limited purpose of verifying the fact of payment of entire service tax by the main contractor, the matter is remanded to the lower authorities for doing the needful. Appeal allowed by way of remand.
- 2020 (3) TMI 914 - CESTAT HYDERABAD
Non-payment of service tax - Water supply / sale to customers in the port - Renting of immovable property - Transport of goods by road - demand of service tax alongwith interest and penalties - excessive adjustment of service tax - extended period of limitation. Water supply / sale to customers in the port - HELD THAT:- It is evident from the records of the case as well as the submissions of the Ld. Counsel for the appellant that they had purchased water and sold it to ships at a higher price. Thus, this is in our considered view, a case of purchase and sale of goods. Sale of goods is a taxable event for Sales Tax or VAT levied by the State Government. It appears from the records, that the appellant had reported the sales in their VAT returns to the State Government claiming an exemption from VAT available on sale of water. The availabili....... + More
- 2020 (3) TMI 913 - 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:- By stating that the goods namely concentrate was transferred for use by M/s Coca Cola India Pvt Ltd to the Appellant for consideration, a fact not in dispute, the sale of the goods in term of Central Excise Act, 1944 has occurred. 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”. In any case if the arguments advanced by the Authorized Representative, were to be a....... + More
- 2020 (3) TMI 912 - CESTAT CHENNAI
Refund of service tax - tax paid under protest - Club and Association service - rejection of claim on the ground that the appellant has not been able to prove that the burden of tax has not been passed on to another - HELD THAT:- The issue as to whether “Club” or “Association” Services is subject to levy of service tax is decided by the Hon’ble Apex Court in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] in favour of the assessee. The Commissioner (Appeals) has observed that the issue whether the refund claim is hit by the bar of unjust enrichment is too premature to be considered. However, he has proceeded to reject the refund claim - the appellant has to ....... + More
- 2020 (3) TMI 852 - CESTAT AHMEDABAD
Refund of service tax - time limitation - principles of unjust enrichment - refund denied on the ground that appellant did not produce evidence or documentary proof that the appellant has not passed the incidence of duty to its customers - Section 11B of the Central Excise Act, 1944 - HELD THAT:- Larger Bench of the Tribunal in the case of M/S VEER OVERSEAS LTD. VERSUS CCE, PANCHKULA [2018 (4) TMI 910 - CESTAT CHANDIGARH] examined the decisions of various Courts where Section 11B has been held to be not applicable to refund of any amount made under any mistake of law. In the present case, the refund claim filed by the appellant would be governed by the provisions of limitation prescribed under Section 11B of Central Excise Act, 1944. Since the refund was filed after expiry of limitation the same cannot be entertained. Unjust enrichment - ....... + More
- 2020 (3) TMI 851 - CESTAT KOLKATA
Maintainability of appeal - incorporation of additional grounds in the appeal - Rule 10 of CESTAT Procedure Rules,1982 - Refund of service tax - service tax paid on transportation of iron ore, from the mining site to the appellant’s crusher plant, located 6 km away from mining area - reverse charge mechanism - Section 11B of the Central Excise Act,1944 as applicable to service tax vide Section 83 of the Finance Act,1994 - HELD THAT:- In view of the specific provision under Rule 10 of the CESTAT Procedure Rules, we are inclined to entertain the misc. applications, seeking incorporation of additional grounds. The misc. applications are allowed, which have substantial bearing on the main appeals. On going through the relevant documents, such as, the contract between the appellant and the raising contractors, the monthly bills raised by....... + More
- 2020 (3) TMI 850 - CESTAT KOLKATA
Levy of Service Tax - Cleaning Activity - removal of fly ash from the pond - HELD THAT:- The cleaning activity has been defined under Section 65(24b) of the Finance Act. “Cleaning activity” means cleaning, including specialized cleaning services such as disinfecting, exterminating or sterilizing of objects or premises, of- (I) commercial or industrial buildings and premises thereof: or (ii) factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, But does not include such services in relation to agriculture, horticulture, animal husbandary or dairying; - thus, cleaning service has been also defined in the Board’s Notification F. No. B1/6/2005-TRU dated 27/07/2005. Also, in the present case, the activity of excavation and transportation of fly ash from the pond, for c....... + More
- 2020 (3) TMI 849 - CESTAT MUMBAI
Applicability of interest to CENVAT credit recovery - Availed versus Taken and / or utilization of credit - Recovery of CENVAT credit wrongly taken or erroneously refunded - rule 14 of CENVAT Credit Rules, 2004 - HELD THAT:- From a perusal of rule 14 of CENVAT Credit Rules, 2004 and, in particular, of the disjunctive collation of ‘taken’, ‘utilized’ and ‘erroneously refunded’ with the expression ‘wrongly’ qualifying, not three but only two, it would appear that the assumption of credit and a refund of credit, if wrong, would have to pay the price in the form of ‘interest.’ However, it is unusual for ‘utilization’ to be qualified with ‘ineligibility’ on its own as ‘utilization’ is solely for the purpose of discharge of tax/duty liability which, ....... + More
- 2020 (3) TMI 848 - CESTAT AHMEDABAD
Interest on delayed refund - relevant time for calculation of interest - appellant have challenged that portion of the order to which the interest was not granted i.e. from date of deposit till the date of the order - HELD THAT:- The refund in case of pre-deposit governed by Section 35FF according to which the interest is payable from three months of the order by which the demand was set-aside. Therefore, there is no question of interest from the date of deposit. A similar issue has been considered by the Division Bench in the case of M/S. PETRONET LNG LIMITED VERSUS COMMISSIONER OF CUSTOMS, AHMEDABAD [2018 (8) TMI 111 - CESTAT AHMEDABAD] where it was held that in terms of clause (b) of sub-Section (1B) of Section 27, the period of one year shall be computed from the date of Commissioner (Appeal) order. Thus the interest is payable under Section 35FF wherein there is no provision for payment of interest on refund from the date of deposit - appeal dismissed - decided against appellant.
- 2020 (3) TMI 847 - CESTAT KOLKATA
GTA Services - appellant paid amount towards transportation of goods - reverse charge mechanism - revenue neutrality - HELD THAT:- The appellant is entitled to get the benefit of CENVAT credit on the GTA services, therefore, making the situation revenue neutral. It is further observed that this Tribunal in the case of M/S STAR ALLOYS & CHEMICALS PVT. LTD. VERSUS CCE & ST, RAIPUR [2018 (4) TMI 363 - CESTAT NEW DELHI], wherein in identical situation has held that in the case of GTA service, CENVAT credit is available, therefore extended period cannot be invoked. Normal period of limitation - HELD THAT:- Hon’ble Supreme Court in the case of COMMISSIONER OF C. EX., PUNE VERSUS COCA-COLA INDIA PVT. LTD. [2007 (4) TMI 17 - SUPREME COURT], COMMISSIONER OF C. EX. & CUS., VADODARA VERSUS NARMADA CHEMATUR PHARMACEUTICALS LTD. [200....... + More
- 2020 (3) TMI 846 - CESTAT MUMBAI
GTA service - service of ‘transportation of goods by road’ - demand of differential tax arising from the benefit of notification no. 35/2004-ST dated 3rd December 2004 available to providers of ‘transport of goods by road service’ - HELD THAT:- The first of the two impugned orders is not convincing in the refutation of the claim of the assessees that carriage of goods or articles from door to door suffices to exclude the ambit of ‘transportation of goods by road service’ from such activity. Neither does the ground of appeal against the second of the impugned orders nor has Learned Authorised Representative much to add in support of this premise. Though there is overwhelming emphasis on ‘door-to-door’ in the circulars relied upon by that authority, this does not, in our opinion, constitute th....... + More
- 2020 (3) TMI 845 - CESTAT BANGALORE
CENVAT Credit - input services - courier services - services received in India from the foreign service providers/co-loaders - reverse charge mechanism - period from May 2006 to August 2007 - CBEC Circular dated 31.10.1996, F.No. 341/43/96 - HELD THAT:- The issue decided in the case of FIRST FLIGHT COURIERS LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-II [2016 (8) TMI 145 - CESTAT MUMBAI] where it was held that the services received by the courier agency from the co-loader is not liable to Service Tax, and further where such service is provide by a co-loader situated outside India, the said activity is beyond the territorial jurisdiction of Service Tax Law and on this account also not taxable. The issue is wholly revenue neutral, as the appellant courier agency is entitled to input service credit and moreover, they have admittedly paid....... + More
- 2020 (3) TMI 844 - CESTAT ALLAHABAD
Levy of Service Tax - amount which employer recovers out of the salary paid to the employee if the employee breaches the contract of total term of employment - HELD THAT:- The term of contract between the appellant and his employee are that employee shall be paid salary and the term of employment is a fixed term and if the employee leaves the job before the term is over then certain amount already paid as salary is recovered by the appellant from his employee. This part of the recovery is treated by Revenue as consideration for charging service tax. The said recovery is out of the salary already paid and we also note that salary is not covered by the provisions of service tax - Appeal allowed - decided in favor of appellant.