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Service Tax - Case Laws

Showing 81 to 100 of 122 Records

• 2011 (1) TMI 356 - HIGH COURT ANDHRA PRADESH
  

  Waiver of pre-deposit - Application for stay - commercial training or coaching service - The question of dispensing with pre-deposit would arise only when the duty demanded, or the penalty levied, would cause undue hardship to the assessee and not otherwise - It is true that on merely establishing a prima facie case, interim order of protection should not be passed - show cause notice in this case has been issued on 8-9-2008 demanding service tax for the period 2003-2007 - It is also fact that the Govt. of India has brought in retrospective amendment to the definition of “Commercial Coaching and Training Centre” which could include the activity of the appellant and liability to service tax arises - It did not consider the aspect of undue hardship which must exist for exercising power under Section 35F of the Central Excise Act - Appeal is allowed by way of remand

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• 2011 (1) TMI 346 - CESTAT, BANGALORE
  

  Penalty - Rectification of mistake - The respondent/assessee has discharged the entire service tax liability before the issuance of show-cause notice - It is borne out from the records - The assessee has deposited the amount on 5-5-2008 while the show-cause notice has been issued on 8-7-2008 - If that be so, their coming forward and depositing the entire amount of service tax along with interest would get covered by the provisions of section 73(3) of the Finance Act, 1994, which mandates the revenue officers, not to issue any show-cause notice - Find that the provisions of section 80 can be invoked in this case, there being reasonable cause for non-imposition of penalty on the assessee - Decided in favour of assessee.

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• 2011 (1) TMI 251 - CESTAT, NEW DELHI
  

  Demand of duty and Penalty - GTA service – Input service - GTA service used for outward transportation from the factory gate to the buyers premises – The submission that the GTA service used for outward transportation from the factory gate to the buyers premises should be treated as input service therefore has to be rejected. - no justification for sustaining the penalty on the appellant - appeal disposed of by upholding the demand of duty alongwith interest and setting aside the penalty

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• 2011 (1) TMI 246 - CESTAT, NEW DELHI
  

  Cenvat Credit - Input Services - Group insurance / mediclaim policy - CHA - Rent an Cab - Held that:- credit in respect of the service tax paid on group insurance and health policy for the employees and workers allowed - Credit of CHA services for export of goods allowed - credit on transportation facility (rent a cab) given to the clients are to enable to sell their products and naturally part of the business activities allowed - Credit of ST paid on general insurance of export goods allowed.

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• 2011 (1) TMI 241 - CESTAT, NEW DELHI
  

  Demand - Enhancement of penalty - whether the service tax to be confirmed on the gross value charged by the CHA without giving any benefit of demand on actual expenses undertaken by them on behalf of their customers - In view of the admission by the appellants that they are not able to produce the documentary evidence support the various reimbursable expenses - The break up of the total charges taken by the appellants from their client having not been substantiated, the total gross value in the invoices is to be adopted as lumpsum amount and the taxable services are required to be taken as 15% of the lumpsum amount - the failure on the part of the appellant to substantiate the reimbursable expenses claimed on account of loss of documents, cannot be held to be reflected on any mala fide on their part and if the 15% of the exempted amount charged, resulting in less duty payment on them, there is no warrant in imposing penalty under Sections 76 and 78 of the Finance Act - Accordingly decided in the favour of the assessee

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• 2011 (1) TMI 238 - CESTAT, MUMBAI
  

  Demand - The period involved in this case is from May, 2001 to June, 2002 and undisputedly the appellant was doing the job of conceptualization and writing contents of the advertising material such as advertising films, radio and print Ads which were used by Ambience to produce final advertising material - The circular dated 23-8-2007 clarified that given taxable service intended to be used as input service by any service provider the liability to pay service tax is on the service provider - The appellant submitted that they produced a certificate before the Commissioner (Appeals) to the effect that Ambience has paid the service tax. However, the learned Commissioner (Appeals) has not taken the certificate on record nor gave any finding on this aspect. - matter remanded back.

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• 2011 (1) TMI 236 - CESTAT, NEW DELHI
  

  Demand - erection, commissioning or installation - that a sum of Rs. 2,70,125/- stands deposited during the course of investigation even though the same is not payable - Tribunal in the case of Rajeeve Electrical Works v. CCE, Chandigarh reported in [2007 -TMI - 4225 - CESTAT, NEW DELHI] and the decision in the case of Power Best Electricals v. CCE, (2007 -TMI - 3443 - CESTAT, BANGALORE) - Held that: prima facie, we hold that the liability to tax shall arise only from 16-6-2005 consequent upon amendment enlarging the scope of the impugned services - Decided in the favour of the assessee

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• 2011 (1) TMI 233 - CESTAT, MUMBAI
  

  Demand along with interest and penalty - Repairs and Maintenance service’ - The department proceedings against the appellant was providing ‘Repairs and Maintenance service’ of xerographic equipment and systems, toners and printers and facsimile to various clients without obtaining any service tax registration nor paying any service tax on the amount received as remuneration from M/s. Xerox Modicorp Limited for providing the above service.

  The Commissioner (Appeals) in his order has found the appellant as a sub-contractor and the department has not challenged this finding of the Commissioner (Appeals) - The service agreement entered into between the appellant and the company, it is clear that the appellant were to provide necessary services to products as assigned/authorised by coompany and protect the interest and reputation of company - The appellant have produced a certificate issued by company dated 14-8-2009 claiming that service tax liability on the service provided by the appellant having been included in the service liability discharged by them - The said certificate was not even before the lower adjudicating authority - Remanded to the lower adjudicating authority for limited purpose to verify the certificate and pass necessary order.

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• 2011 (1) TMI 223 - CESTAT, BANGALORE
  

  Refund of service tax paid towards export of goods - claim filed beyond the permissible time limit - in terms of para 2 (e) of the Notification, the claims in respect of exports made in the month of March 08 are required to be filed within 60 days from the end of the relevant quarter - refund claims were filed on 02.01.2009 i.e. beyond the time limit prescribed and hence the same are hit by limitation of time - no provision under law empowering to condone the above delay – Appeal dismissed

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• 2011 (1) TMI 220 - CESTAT, NEW DELHI
  

  Demand along with penalty - Repair and maintenance services - The appellant, submits that they are paying Central Excise duty on repaired transformers by treating the same as a manufacturing activity - Produced the Central Excise records including the returns filed by him - Set aside the impugned order and remand the matter to the original adjudicating authority for examining the appellant’s above plea as to whether the excise duty paid by them was in respect of repaired transformers or the new transformers - If excise duty has been 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.

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• 2011 (1) TMI 219 - CESTAT, CHENNAI
  

  Waiver of pre-deposit - Commercial concern or not - The assessee who has been held to be a commercial concern engaged in rendering services in the field of architecture - The assessee is a society registered under the Societies Registration Act, 1860 and one of the objectives of their association is to protect the heritage of Puducherry by raising public awareness for preservation of historical buildings etc - Prima facie, assessee is not a commercial concern as it is not profit oriented and the fact that the applicant collect charges from banks, individuals, hotels, consulates etc. is not prima facie sufficient to hold that it is a co mmercial concern - The assessee has made out a prima facie case for waiver on merits - Hence waive pre-deposit and stay recovery

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• 2011 (1) TMI 199 - CESTAT, NEW DELHI
  

  Waiver of pre-deposit - Prima facie, assessee is not a commercial concern as it is not profit oriented and the fact that the applicant collect charges from banks, individuals, hotels, consulates etc. is not prima facie sufficient to hold that it is a commercial concern, in the absence of any finding regarding organization making profit, in the light of Tribunal’s orders in Institute of Banking Personnel Selection v. CST, Mumbai [2007 -TMI - 2415 - CESTAT, MUMBAI] and Great Lakes Institute of Management Ltd. v. CST, Chennai [2008 -TMI - 3914 - CESTAT,CHENNAI] - Decided in the favour of the assessee

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• 2011 (1) TMI 198 - CESTAT, NEW DELHI
  

  Business auxiliary services or clearing and forwarding agency - Various methodologies followed for marketing were attributable to the promotion of sales - There are no any reason to reverse the order of the first Appellate Authority who has not failed to examine the entire gamut of service provided by the Respondent - Decided in the favour of the assessee

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• 2011 (1) TMI 196 - CESTAT, NEW DELHI
  

  Cenvat credit of service tax paid - respondents as deemed service provider paid service tax under TR-6 challan - no dispute about payment of service tax by the respondents and that as recipient they were entitled to the credit - no difficulty for the department in verifying the correctness of the credit taken as deemed service provider – Decided in favor of assessee.

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• 2011 (1) TMI 188 - CESTAT, AHMEDABAD
  

  Commercial or industrial construction service - Nature of contract - commercial purpose - Held that: - Any service receiver irrespective of its status or definition or composition, if utilizing the pipeline for commerce or industry, will render the provider liable to Service Tax. Therefore, strictly speaking, by Revenue’s own submissions, the status of GWSSB is not relevant. Nevertheless, this issue as to whether the GWSSB can be considered as a commercial organization, was discussed in detail in Nagarjuna Construction Co. Ltd.’s case [2010 (5) TMI 232 - CESTAT, BANGALORE] and we agree with the views taken in that case.

  GWSSB can not be considered as a commercial organization or the purpose of pipeline laid for them by various contractors as one for commerce i.e., to say to buy and sell water.

  Commercial purpose - the purpose of buying water and bringing it from Narmada Dam was not for selling it, but for supplying it to needy people. In this case, buying and selling is incidental. The purpose is supply of water to the needy citizens of the State. The term used “for commerce” would mean that only purpose would be buying and selling, which is definitely not the case here. The term used “primarily for commerce” would mean that primary purpose should be buying and selling and the other purposes also may be served incidentally. In this case, purchase and sale of water are incidental and the main purpose is supply of water to needy citizens of the State. - Decided in favour of assessee.

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• 2011 (1) TMI 143 - CESTAT, BANGALORE
  

  Cenvat credit of service tax paid on services of CHA - disallowed by the Revenue on the ground that the said service would not fall under the category of input service and that service cannot be related to business activities as it is being conducted at part i.e. beyond the place of removal - Activities relating to business are covered by the definition of input service and admittedly CHA and Surveyors services are relating to the export business.

  Commissioner (Appeals) has gone beyond the scope of show-cause notice seems, while coming to a conclusion that some of the goods exported by the assessee are exempted goods and the appellants could not have availed Cenvat credit on activities relating to such goods - allegations were not made out in the show-cause notice. The findings of the lower authorities are required to be within the allegations raised in the show-cause notice and the finding recorded by the Commissioner (Appeals) on the said allegations is beyond the show-cause notice, is undoubtedly not sustainable.

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• 2011 (1) TMI 136 - CESTAT, CHENNAI
  

  Penalty - penalties imposed under Section 76 and 77 of the Finance Act, 1994 for non-payment of the service tax and for non-filing of the returns - No reasons have been advanced on behalf of the respondents as to why they did not file the necessary service tax return for the impugned period as required under the law - no such arguments advanced by the respondents at any stage of the case. - the provisions of Section 80 cannot be invoked - penalty equal to the tax amount not paid under Section 76 adequate and no separate penalty is necessary to be imposed under Section 78 of the Act – Department’s appeal allowed

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• 2011 (1) TMI 130 - CESTAT, NEW DELHI
  

  Condonation of delay - Limitation - appeal on the ground of time bar rejected - delay was within the powers of Commissioner (Appeals) but he has refused to exercise the powers for condoning the delay on the ground that the poor health of proprietor of the company is not sufficient cause for condoning the delay inasmuch as even during this period of poor health, she was attending office and was conducting the business - applicant was admittedly pregnant during the relevant period - sufficient cause for condoning the delay – Delay condoned – Appeal allowed

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• 2011 (1) TMI 120 - CESTAT, CHENNAI
  

  Penalty - finding of the original authority that the provision of Section 80 is applicable in respect of the appellant has not been challenged by the department before the next appellate authority - orders of the authorities below imposing penalty under Section 78 cannot be sustained in view of the applicability of Section 80 to the appellants as held by the original authority, which has not been appealed against by the department - order set aside and penalty imposed under Section 78 waived and the appeal of the appellant assessee allowed

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• 2011 (1) TMI 116 - CESTAT, NEW DELHI
  

  Refund claim - Power to remand - Commissioner (Appeals) has no power to remand the matter subsequent to the amendment of Section 35A with effect from 11.5.2001 - respondents have produced the documents in support of their refund claims for the first time before the Commissioner (Appeals) and he has remanded the matter for getting these documents examined by the original authority - order of the Commissioner (Appeals) set aside and the order of the original authority and remand the matter to the original authority for fresh consideration after examining the documents produced by the respondents before the Commissioner (Appeals) and after granting a reasonable opportunity of hearing to the respondents

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