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Service Tax - Case Laws

Showing 101 to 120 of 122 Records

• 2011 (1) TMI 110 - CESTAT, NEW DELHI
  

  Commission to the overseas commission agent - service tax under the category of business auxiliary service as recipient of service from the foreign service provider - original authority in addition confirming the demand of duty ordered recovery of interest and also imposed penalty - Commissioner (Appeals) has set aside the interest but upheld the penalty - for the purpose of contesting the penalty, he submits that in respect of services received from the Foreign Service provider no service tax liable paid by the recipient for the period prior to 18.4.2006 when the section 66A was introduced in the Finance Act - Liability to service tax cannot be decided by the Tribunal as the matter was not agitated before the Commissioner (Appeals) - no justification for imposition of penalty - order of the Commissioner (Appeals) imposing penalty is therefore is set aside and the appeal is allowed

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• 2011 (1) TMI 107 - CESTAT, NEW DELHI
  

  Demand - appellant had taken number of pleas including that the transformers were not immovable property; they are attached to earth; that they are in the nature of plant and machinery; that the repair and maintenance is earlier done at the site of installation etc. that the demand was also barred by limitation - appellant, appearing in person before us submits that they are also paying Central Excise duty on repaired transformers by treating the same as a manufacturing activity - if excise duty have to be paid by treating the repaired transformers as manufactured transformers, whether the Service Tax liability can be fastened by treating the activity of maintenance and repair activity – matter remanded

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• 2011 (1) TMI 101 - CESTAT, CHENNAI
  

  Service tax - assessees manufacturers of automotive parts and accessories and registered with the Service tax department as a recipient of service and paying service tax on erection, commissioning and installation and consulting engineers services, paid tax on the net value which was arrived at after deducting TDS from the gross value while the gross amount was to be adopted for the payment of service tax - assessees had contended that they had correctly paid service tax on the gross value of taxable service namely 5% of the net sales value of the goods and that income tax was remitted for the purpose of compliance with the provisions of the Income Tax Act and the procedure for grossing up of amounts for the purpose of calculating income tax as per Section 195A of the Income Tax Act and that the income tax remitted on the value of taxable service over and above the amount charged by the service provider and does not form part of the amount payable as per the contract - order set aside and the case remitted for fresh decision to the adjudicating authority

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• 2011 (1) TMI 99 - CESTAT, NEW DELHI
  

  Unjust enrichment – Cenvat credit – Refund claim - filing declaration by the transporters that no Modvat credit stand availed by them does not stand disputed by the Revenue - refund rejected on the ground that declarations were not on each of the invoice and were filed after the services were availed - Refund to be allowed

  As regards unjust enrichment also, Revenue has simply contended that the burden of proof is on the assessee - findings of the appellate authority with the said tax was paid subsequent to the clearance of the goods and the party wise ledger on record clearly show that the appellants have only claimed freight from their customers and Service Tax paid has not been charged, do not stand rebutted by the Revenue - no merit in the Revenue s appeal, hence rejected

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• 2011 (1) TMI 91 - CESTAT, BANGALORE
  

  Refund – Unjust enrichment - There is no proof on records that the service tax element is not passed on to the other end party abroad. And further the claim for the period prior to Feb 2007 cannot stand since it is time barred under the provisions section 11B of Central Excise Act, 1944 read with section 83 of Finance Act, 1994 which the lower authority has correctly held. - The argument of the appellants that the payment of service tax is erroneous under mistake of law is not acceptable as ignorance of law is not an excuse. Moreover the appellants themselves agree to, that the service tax paid by the appellant may not exactly tally with the amount of service tax paid. – Appeal rejected

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• 2011 (1) TMI 90 - CESTAT, AHMEDABAD
  

  Demand - The agreement had 3 parts i.e. Licence Agreement, Engineering Agreement, Guarantee Agreement - it is the case where designs, technical know-how etc which were admittedly prepared by the appellant in Boston, stand transferred by them to IOCL – The Commissioner, in Para2 3.2 of his order, has specifically observed that the services rendered by the appellant have been consumed in India. If that be so, it can be safely concluded that the services were not rendered in India. The consumption of service in India is not taxable event. Situs of the tax would be where the taxable event occurs and not where the effect or the consequence thereof is felt. The taxable event has not occurred inIndia, inasmuch as the activity of development of technology, technical information & know-how, transfer of design, drawing etc has taken place in USA.

  Extended period of limitation - Any bonafide lapse not to make enquiries about its obligation to pay duty/tax, cannot be made reason for invocation of extended period unless there is evidence to show that such lapse was on account of malafide intention, and with guilty mind of avoiding payment of tax. - Demand is barred by limitation – Appeal is allowed

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• 2011 (1) TMI 88 - CESTAT, NEW DELHI
  

  Waiver of penalty – demand alongwith interest and penalty - Tribunal held that the penalty under Section 76 need not be imposed when the penalty under Section 78 has been imposed - Commissioner (Appeals) has relied on the decision of the Tribunal in the case of CCE,Ludhianavs. Silver Oak Gardens Resorts - no interfere with the order of the Commissioner (Appeals).

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• 2011 (1) TMI 79 - CESTAT, NEW DELHI
  

  Demand and penalty - Services of commercial training and coaching and collected fees from the students during the period from May 2003 and June 2003 towards the coaching - Such services were to be under the Service Tax net with effect from 1.7.2003 - Revenue entertained a view that though the fee was collected prior to 1.7.2003, the coaching service was actually provided after the said period and as such the respondent is to pay Service Tax on pro-rata basis – Revenue contended that the Commissioner (Appeals) should have followed the earlier order in the case of M/s SachdevaNewP.T.College - Tribunal having decided the issue in respect of same parties, Commissioner (Appeals) was bound to follow the said order in stead of his own earlier order in some other case - no merit in the appeal of the Revenue, rejected

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• 2011 (1) TMI 75 - CESTAT, AHMEDABAD
  

  Penalty - difference between ST-3 return and Profit & Loss Account - appellant on their own calculated differential Service Tax, got it verified by Chartered Accountant and submitted the same to the department - Section 80 of Finance Act, invoked – Appeal allowed

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• 2011 (1) TMI 69 - CESTAT, NEW DELHI
  

  Business auxiliary services - respondent is engaged in the mobilising, selling, recommending mutual fund units of various mutual fund houses and also in selling, mobilising recommending investments in bonds issued by banking and non-banking companies - Show Cause Notice was issued to the respondent proposing demand of Service Tax and proposing imposition of penalties - Commissioner dropped the proceedings relying on the decision of the Hon ble High Court of Andhra Pradesh in the case of Karvy Securities Ltd. Vs. Union of India - Commissioner has dropped the proceedings on the ground that the Circular dated 5.11.2003 of the Board which was the basis for issue of Show Cause Notice stands set aside by the Hon ble High Court of Andhra Pradesh – no infirmity in the order of the Commissioner - Appeal by the department, therefore, rejected

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• 2011 (1) TMI 67 - CESTAT, AHMEDABAD
  

  Demand of duty and Penalty - Cenvat credit - appellant availed credit used commonly in manufacture of both dutiable and exempted products without maintaining separate accounts - department contended that appellant liable to pay an amount equal to 10% of the total price of the exempted goods charged at the time of clearance - Commissioner (Appeals) directed the appellant to deposit 50% of the duty and penalty - appellant submitted that the appellant had availed the credit wrongly, but on their own have reversed the same - Commissioner (Appeals) has rejected the appeal on the ground of non-compliance with the stay order requiring them to deposit 50% of the duty and penalty - pre-deposit of duty, penalty and interest waived and Stay Petition allowed unconditionally - matter remanded to Commissioner (Appeals) with direction to consider the issue on merit without insisting on any pre-deposit

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• 2011 (1) TMI 61 - CESTAT, NEW DELHI
  

  Cargo handing services - appellant is engaged in the manufacture of alcoholic liquor for human consumption on job work basis - undertaking the work and supervise all the operation after receipt of blended material and up to transfer of finished goods into the godown provided for the purposes of storage of finished goods at the plant and loading into trucks at the said plant for dispatch - Revenue entertained a doubt that the above activities undertaken by the appellant amounted to cargo handing services for the period 16.8.2002 to 9.9.2004 and to business auxiliary services for the period 10.9.2004 to 30.9.2006 - business auxiliary services, does not include any activity that amounts to manufacture within the meaning of Section 2(f) of the Central Excise Act - packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of Section 2 of Central Excise Act, 1944 in view of the definition contained in Section 65(76b) of the Finance Act especially keeping in view the exclusionary facet – Appeal allowed

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• 2011 (1) TMI 57 - HIGH COURT OF MADRAS
  

  Writ petition to prohibit the department from levying and collecting service tax on the commission received acting as agents for a number of south Indian Tea Estates in the marketing and sale of their tea overseas, under the head 'Business Auxiliary Services' - writ petition even before show cause notice – Held that: - revenue directed to issue a show cause notice and to give an opportunity of hearing to the petitioner before deciding the issues arising for his consideration relating to the payment of service tax by the petitioner. It would be open to the petitioner to substantiate its claims, by producing the necessary records. Thereafter, the respondent may pass appropriate orders on merits and in accordance with law, taking into consideration all the relevant aspects, including the decisions of the supreme Court cited by the petitioner, as expeditiously as possible.

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• 2011 (1) TMI 53 - MADRAS HIGH COURT
  

  Whether provisions of Explanation under Section 65(105) of the Finance Act, 1994 and Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, as introduced by the Finance Act, 2005 and Notification No.23/2005 ST, dated 7.6.2005, respectively, are ultravires of Articles 14, 19 (1)(g), 245 and 265 of the Constitution of India – Held that: - that the respondents are not entitled to levy service tax on the petitioners upto 17.4.2006, in respect of the services availed by them, as it is clear that Section 66A had been inserted in the Finance Act, 1994, by way of an amendment, by the Finance Act, 2006, only with effect from 18.4.2006, enabling the authorities concerned to levy service tax on the recipients of the taxable service.

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• 2011 (1) TMI 52 - PUNJAB AND HARYANA HIGH COURT
  

  Simultaneous penalty u/s 76 and 78 – Held that: - Section 76 provides for penalty for failure to pay the amount while Section 78 provides for penalty for suppressing the taxable value. Section 78 is, thus, more comprehensive and provides for higher amount. Even if technically, the scope of sections 76 and 78 is different, penalty under Section 76 may not be justified if penalty had already been imposed under Section 78.

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• 2011 (1) TMI 46 - MADRAS HIGH COURT
  

  Refund – Forced payment of service tax – deemed protest – period of limitation - A conspectus consideration of the facts only go to show that the payment made by the first respondent/assessee was not voluntary and was forced to make the said payment. In such circumstances, the said payment can only be construed as one made under protest. When once the said conclusion based on the above facts are inevitable, then the second proviso to sub section 1 of Section 11B of the Central Excise Act, automatically comes into play. Therefore, the conclusion of the Tribunal in having held that the first respondent made the payment under protest was well justified and the order of the Tribunal in holding that the application made by the first respondent/assessee for refund of the payment made in its application dated 18.08.2006 cannot be thrown out on the ground of limitation.

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• 2011 (1) TMI 45 - CESTAT, CHENNAI
  

  Cenvat Credit - service tax paid on passenger air fare, servicing charges and insurance charges of company vehicle, residential telephone lines of the staff of the assesse - Held that: - assessee is eligible to credit of service tax paid on air travel fare, if the air travel has been performed for the purpose of company business - servicing charges and insurance charges of the company vehicle are to be held as being in relation to the manufacture of final products - it is not the case of the Revenue that telephone service was used for personal purposes of the officials of the assessee - Cenvat credit allowed - revenue appeal dismissed.

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• 2011 (1) TMI 25 - CESTAT, CHENNAI
  

  Cenvat Credit - service tax was paid on account of booking of the offence - department denied the claim of credit - Held that: - redit should not have been denied on the ground as held by the lower appellate authority. Since the assessees are in a position to provide all the details regarding the nature of service and the place of usage of the service credit to be allowed - matter remanded for verification.

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• 2011 (1) TMI 21 - BOMBAY HIGH COURT
  

  Failure to pay amount against stay order as pre deposit – cestat dismissed the appeal – Held that: - Counsel for the appellant hands over the pay order for a sum of Rs.3 crores drawn in the name of S.B.I. Service Tax to Ms. Suchitra Kamble , counsel for the Revenue in compliance of the order passed by the CESTAT. Since the order of the CESTAT regarding pre-deposit is complied with, order passed by the CESTAT dismissing the appeals on 12/11/2010/15/11/2010 is quashed and set aside.

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• 2011 (1) TMI 16 - SUPREME COURT
  

  Right to appeal - aggrieved party - supply of contractual agreements - department asked the UPSRTC to supply list of contractual agreements entered into between the private parties who have offered their buses on rent basis to the appellant - Held that: - Since payment of such tax is demanded from the private bus operators, if anybody is really aggrieved, it is the private bus operators. In our considered opinion, if any challenge is to be made to such notice issued by the respondents, the same has to be done by the aggrieved party like the private bus operators. It is only they who can challenge the issuance of the aforesaid notices by taking recourse to the appropriate remedy as provided under the Finance Act, 1994.

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