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Service Tax - Case Laws
Showing 101 to 120 of 232 Records
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2017 (3) TMI 873 - CESTAT MUMBAI
CENVAT credit - denial on the ground that invoices bearing the addresses of the branches which are not registered - Held that: - there is no dispute as to the fact that the branch offices of the respondent were receiving the input services and were utilized for providing output services which is of multi transport system. It is also undisputed that the invoices of service provider indicated all the particulars to enable the availment CENVAT credit and that the name and addresses of the respondent branch offices were indicated on the invoices - the adjudicating authority has not erred in extending the benefit of CENVAT credit of the service tax paid on the input service on the invoices which are in the name of the branches of the respondent, as even though the said services have been received at branches but payments were made from Mumbai office Centralised accounting system - credit allowed - appeal rejected - decided against Revenue.
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2017 (3) TMI 872 - CESTAT MUMBAI
Rebate claim - time limitation - Rule 5 of CCR, 2004 read with N/N. 11/2005-ST - rejection on the ground that the said rebate claim have been filed beyond the period of one year as prescribed in Section 11B of the CEA, 1944 which is adopted for sanctioning of rebate claim under the FA, 1994 - Held that: - An identical issue came up before the Hon'ble High Court of Madras in the case of CCE vs. Dorcas Market Makers Pvt. Ltd. [2015 (4) TMI 118 - MADRAS HIGH COURT] where it was held that in the case of claim of rebate the prescription of one year u/s 11B will not apply as it is governed by another set of provisions - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 871 - CESTAT NEW DELHI
Finance broker - whether covered under Business Auxiliary Services or not? - Held that: - an identical issue stand decided by the Tribunal in the case of Fulchand Tikamchand [2016 (2) TMI 772 - CESTAT MUMBAI], where it was held that in view of an equation that is devoid of an agency relationship with the financier and rules out the provision of a service on behalf of the borrower from whom the appellant receives consideration, the activities of the appellant are outside the ambit of “business auxiliary service” - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 870 - CESTAT ALLAHABAD
CENVAT credit - input services utilised at the R&D centres of the appellant company and transferred to factory through input service distribution mechanism - Held that: - the appellant have rightly taken Cenvat credit as permissible u/r 3 read with Rule 2(i) of CCR, 2004 as the services in question have been admittedly used by the manufacturer indirectly in relation to manufacture of final dutiable products - also, there is no dispute with regard to the distribution of the credit as permitted in the scheme of the Act and the Rules - credit allowed - appeal allowed - decided in favor of appellant-assessee.
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2017 (3) TMI 869 - CESTAT NEW DELHI
100% EOU - refund claim - encashment of unutilized Cenvat Credit of input services used in the manufacture of the final product which was exported during the period 10.09.2004-31.03.2005 - Held that: - rule 5 itself provides for the utilisation of the input credit and input service credit and where such input service credit or input credit cannot be utilized, then the same can be given as refund. So, there is indeed a provision. Just because the notification has not been issued at that time; we cannot deny the benefit provided in the Rule - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 868 - CESTAT NEW DELHI
CENVAT credit - supporting structures for capital goods - Held that: - the service of cargo handling stands provided by the appellant. However, the Service Tax has been paid under BAS by considering the total service rendered by the appellant as a composite service, whose essential character is that of crushing of iron ore, which is an activity under BAS. Since, cargo handling is specified under the definition of capital goods, the appellant will be entitled to the cenvat credit claimed on tippers - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 867 - CESTAT ALLAHABAD
CENVAT credit - procedural lapses - whether credit of Cenvat taken on the basis of ISD Invoices issued by the Head Office of the appellant units is deniable for curable or procedural lapses like non-mention of PAN based registration number, address of service provider etc.? - Held that: - the appellants have made substantial compliance with the provisions of taking Cenvat credit read with the provisions for Input service distribution. Whatever, minor infarction of the Rules has occurred, it appears to be due to the bulk nature of the data and there appears to be no deliberate disobedience of law - the appellants are entitled to Cenvat credit from their Head Office/input service distributor - there is no contumacious conduct or deliberate defiance of law and accordingly the extended period of limitation is not attracted - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 866 - CESTAT MUMBAI
Import of services - An advertisement in “Fertilizer Focus”, a magazine published from U.K. - Whether the amount paid by appellant for advertisement in a foreign magazine is liable to be taxed under the category of “sale of space or time for advertisement” under reverse charge mechanism or not?
Held that: - the said magazine ‘Fertilizer Focus’ gives the information regarding various machineries and the products and also various articles in respect of fertilizers and fertilizer industry. Hence the magazine ‘Fertilizer Focus’ will be covered under the definition of ‘Book’ and an advertisement placed by the appellant in the magazine being in print media is excluded from the service tax liability under the category of sale of space or time for advertisement - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 865 - CESTAT CHENNAI
Franchise Service - Reverse charge mechanism - effective date for levy of tax u/s 66A - Held that: - tax liability u/s 66A will indeed arise from 18.04.2006 only - tax paid for the period prior to this period is to be refunded to assessee alongwith interest - Appeal allowed - decided in favor of assessee.
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2017 (3) TMI 864 - CESTAT HYDERABAD
Refund claim - Rule 5 of CCR, 2004 read with N/N. 27/2012 CE (NT) dated 08.06.2012 - Natural justice - Department has not issued a SCN proposing to reject the refund claim - Held that: - The department cannot reject the refund claim without issuing a SCN - This Tribunal in the judgment rendered in the case of M/s. D E Shaw India Software Pvt. Ltd., [2016 (7) TMI 91 - CESTAT HYDERABAD] had observed that the rejection of refund without issuing a SCN is highly harsh and violation of principles of natural justice.
Also, on perusal of records it was found that for all services, refund is eligible - rejection of refund is unjustified - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 794 - CESTAT NEW DELHI
Tour operators service - the respondent is engaged in the “promotion of tours”, whether included in the Tour operators service or not? - Held that: - CESTAT Delhi in the case of Commissioner of Service Tax, Delhi vs. Paras Holidays Pvt. Ltd. [2015 (10) TMI 2098 - CESTAT NEW DELHI] based on its decision in the case of COX Kings India Ltd. [2013 (12) TMI 1024 - CESTAT NEW DELHI] holds that the tour operator services in case of outbound tours are not taxable - appeal dismissed - decided against Revenue.
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2017 (3) TMI 793 - CESTAT NEW DELHI
Liability of tax - Commission Income - commission received from affiliates in foreign country - whether covered under Business Auxiliary Services or not? - Held that: - the services rendered by the respondent were in relation to procuring orders and promoting products, of foreign suppliers. Admittedly, the said services fall under the category of “BAS”. However, it is a well settled legal position that the nature of service rendered by the respondent is consumed by the foreign supplier of goods. The benefit is directly accruing to such foreign entities - there is no tax liability on the respondent in respect of services, which are rendered to the suppliers of the goods from foreign countries - The activities of export of service is not to be taxed.
Reversal of CENVAT credit - credit availed on common input services, attributable to their trading activities - Rule 6(3) of Cenvat Credit Rules, 2004 - Held that: - input service credit available is only when output service is taxable. If there is no output service, no credit can be taken - Since trading, during the material time, is not even considered as an “exempted service”, it necessarily follows that no credit on input services used for trading activities can be availed at all. If there are common input services, it necessarily follows that, in the absence of separate accounts, the services attributable to taxable output service can only be held eligible to the respondent - the respondent is liable to reverse the credit attributable to the trading activities.
Appeal disposed off - decided partly in favor of Revenue.
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2017 (3) TMI 792 - CESTAT NEW DELHI
Natural justice - air travel agent service - short payment of tax - Held that: - the Original Authority passed ex-parte order though he recorded that adequate opportunities have been provided to the appellant. The impugned order also did not examine the issues raised by the appellant for a proper finding - when the appellants have discharged service tax as a travel agents in terms of provisions of Rule 6 (7) of Service Tax Rules, 1994 and submitted supporting documents of income received on sale of tickets, the same is required to be scrutinized for correctness. Additional service tax demand cannot be confirmed only on the ground of certain categories of income are indicated in the profit and loss account of the appellant - Similarly, on the tax liability on the commission income for use of CRS, the learned Commissioner (Appeals) did not arrive at a clear finding as to what kind of promotion or marketing of such CRS and to which client, is being made by the appellant - matter requires reconsideration - appeal allowed by way of remand.
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2017 (3) TMI 791 - CESTAT NEW DELHI
Refund claim - denial on account of time bar u/s 11B of the CEA, 1944 - during the period under consideration, the 'liaisoning Services' provided by appellant were not subject to Service Tax, a refund claim was filed - Held that: - no tax was due against the assessee-Appellants as the services provided by them were not subject to tax. At the relevant time, there was no authority/provision to collect the tax from the assessee- Appellants. Hence, this is an amount which was deposited in good faith - in the instant case also, the assessee-Appellants were not subjected to Service Tax. Therefore, mere payment made by the assessee-Appellants will neither validate the nature of payment nor the nature of transaction.
The assessee-Appellants were rendering “liaisoning service”. The said services were not liable to Service Tax at the relevant time. Hence, the Department would not be in a position to collect service tax on the said activities since the same is not leviable - the Government will have no authority to retain the said amount and will have to be refunded.
It is not a case of refund of tax, but return of deposit for which limitation (Section 11B of the Act) is not applicable.
Appeal allowed - decided in favor of assessee-appellant.
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2017 (3) TMI 790 - CESTAT NEW DELHI
PSU - the appellant was required to execute various services to BALCO for its captive power plant at its Korba Aluminum Complex, since they did not have facilities for transportation, handling and storage of coal etc - Business Auxiliary Services - cost of transportation - whether the cost of transportation was to be included for purposes of payment of service tax under “Business Auxiliary Service”? - Held that: - the activity of crushing of coal cannot be covered within any of the sub-clauses of BAS until its amendment w.e.f 16.06.2005. After the said amendment, the activity can be brought within the term of “processing” and hence, liable to Service Tax under BAS. Consequently, there can be no demand for Service Tax prior to this date.
Transportation of coal - consideration received from BALCO - whether comes under BAS or not? - Held that: - In the definition of BAS, any service provided to a client in relation to the “Business Auxiliary Service” is covered within the definition. If the crushing of coal is considered as the activity covered under BAS, transportation of coal for such purpose would also be included since it is intimately connected with crushing. In any case, the contract for activity includes both. Hence, we find no basis to exclude ₹ 30/- from payment of service tax.
Time limitation - The appellant has claimed that the Show Cause Notice is time barred. Since, the same has been issued more than one year from the date in which the appellant intimated the audit party - Held that: - date of knowledge was of no significance - the SCN is not time barred.
Penalty - Held that: - The levy of Service Tax under BAS has seen repeated amendments to enlarge the scope of this service. Hence, we consider this to be a fit case to waive the penalties imposed in the impugned order under Section 80 of the Finance Act, 1994 - penalty set aside.
The original adjudicating authority is directed to re-quantify the demand w.e.f. 16.06.2005 - appeal allowed in part and part matter on remand.
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2017 (3) TMI 789 - CESTAT KOLKATA
Book adjustment to discharge liability of tax - whether book adjustment can be treated as payment of service tax in terms of Rule 6 of Service Tax Rules, 1994? - Central Government Establishment. - Held that: - it is evident that the appellant paid the tax and there may be some procedural lapses for which the demand of tax is not sustainable in the eyes of law.
Penalty - Held that: - appellant, being a Central Government Department paid the tax as per the directions of the office of the Comptroller and Auditor General, by book adjustment. At this juncture, the observation of the Adjudicating Authority against the appellant that they defrauded the exchequer is extremely shocking and the Adjudicating Authority should avoid such language in their orders - the imposition of penalties are waived u/s 80 of the FA, 1994.
The Adjudicating Authority is directed to verify the payment of tax by book adjustment - appeal allowed by way of remand.
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2017 (3) TMI 788 - CESTAT NEW DELHI
Tax liability - amounts received as parking fee from the users of parking space in the property - amounts received as renovation charges from various occupants of the property as and when certain renovation are carried out by any of the occupants of the property - demand on the ground of Non-payment of service tax - time limitation - Held that: - the impugned order did not give categorical finding after examining the documents and evidence submitted by the respondent/ assessee. It is necessary to give a clear finding regarding the nature of activity undertaken by the respondent/assessee, the consideration received for such activity which is liable to service tax - matter on remand.
Time limitation - demand held as time barred only on the ground that the SCN was issued after 1½ years of audit - Held that: - the relevant date u/s 73 (1) of the FA, 1994 is with reference to the date of filing return etc. The normal period or extended period is determined based on the provisions contained therein. If the ingredients for invoking demand for extended period are available, then such demand can be raised for 5 year period. The date of knowledge of the Department is not relevant in such situation - time limitation not invocable - this matter also needs reconsideration.
Appeal allowed by way of remand.
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2017 (3) TMI 787 - CESTAT MUMBAI
Business Auxiliary Service - whether the activity of cutting and packing of lettuce, onion and salad mix would fall under the category of business auxiliary service under the Head of production or processing of goods for, or on behalf of client or not? - Held that: - an identical issue came up before the very same Bench in the case of Tasty Bite Eatables Ltd. [2015 (11) TMI 231 - CESTAT MUMBAI] wherein the Bench held for similar activity that the activity of processing the vegetables by the appellant will be in relation to agriculture hence not liable to service tax under business auxiliary services - demand set aside.
Whether the appellant is required to discharge the service tax under Consulting Engineer service by way of reverse charge mechanism for transfer of technical know-how or otherwise? - Held that: - the said agreement entered by appellants with the foreign entity is in respect of transfer of technical know-how and design and drawing in order to establish the facility in India. We find that there is no consultancy or technical assistance extended given by the Engineering firm - similar issue decided in the case of CST vs. Leibert Corporation [2014 (3) TMI 265 - CESTAT MUMBAI], where it was held that The said service does not, in any way, relate to supply of technical know-how which the respondent has undertaken.
Appeal allowed - decided in favor of appellant.
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2017 (3) TMI 786 - CESTAT MUMBAI
Manpower recruitment or supply agency service - whether the appellants have rendered the services of manpower recruitment or supply agency service or otherwise? - Held that: - there is no restriction as to the specific number of employees to be brought for such purposes; and work force employed by the appellant was on the role of the appellant only and is supervised by the appellant - this contract cannot be considered as a contract for supply of manpower to KLL - the services would not fall under the category of manpower recruitment or supply agency services - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 785 - CESTAT NEW DELHI
Valuation - reimbursable expenditure - Custom House Agent Service - whether the B/L, DDC charges, GOH container charges, Inland haulage charges, on carriage charges, THC, Via Charges, APT tax, AWB fee, AWC charges, MYC Charges, PCA Charges, X-ray charges etc are to be included in the taxable value? - Held that: - Tribunal in CST vs, Lee & Muirhead Pvt. Ltd. [2011 (10) TMI 504 - CESTAT, CHENNAI] had occasion to examine the includibility of reimbursable expenditure in the taxable value for CHA service. It is held that when amounts are reimbursed on actual basis, the said charges are not to be included for service tax purpose - demand set aside.
Business Auxiliary Services - whether brokerage and commission amount is to be considered as a commission received for promoting clients’ business and are accordingly to be subjected to tax under the category of business auxiliary service? - Held that: - the income earned by the respondent, to be considered as taxable under any service category, should be shown to be in lieu of provision of a particular service. Mere sale and purchase of cargo space and earning profit in the process is not a taxable activity under FA, 1994 - The facts of the case indicated that the mark-up value collected by the respondent from the exporter is an element of profit in the transaction. The respondent when acting as agent on behalf of airlines/shiplines was discharging service tax w.e.f. 10.09.2004. However, with reference to amount collected from exporters/ shippers the original authority clearly recorded that it is not the case that this amount is a commission earned by the respondent while acting on behalf of the exporter and said mark-up value is of freight charges and are not to be considered as commission. Based on these findings the demand was dropped - demand set aside.
Appeal dismissed - decided against Revenue.
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