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Service Tax - Case Laws
Showing 121 to 140 of 232 Records
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2017 (3) TMI 730 - MADRAS HIGH COURT
Principles of natural justice - the respective petitioners were not served with copies of such documents, relying upon which the adjudication order were passed - courier agency - whether the service rendered by the petitioners would fall under the category of Goods Transport Agency Service or Supply of Tangible Goods Service? - Held that: - the letters obtained from Blue Dart and the recitals contained therein, are in line with the statements made by the respective petitioners and therefore, by not furnishing those details to the petitioners, is not in any way causing prejudice to them - there is no violation of the principles of natural justice in these cases by not furnishing those documents to the petitioners, as such non furnishing is not causing any prejudice to the petitioners - petition dismissed - decided against petitioner.
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2017 (3) TMI 729 - KERALA HIGH COURT
Works contract - petitioner is an an A-Grade Electrical Contractor engaged in electrical works - time limitation - petitioner case is that the initiation of proceedings by the authority is beyond the period of limitation as prescribed under Section 73(1) of the FA, 1994 and there was no reason to invoke the proviso to Section 73(1) of the Act to enlarge the period of limitation by five years - another case of petitioner is that the petitioner had undertaken the contract for five builders who had already collected the service tax component from the petitioner's bill and they, having accounted for the same, there was no obligation on the part of the petitioner to pay any amount as service tax.
Held that: - merely for the reason that a person did not pay service tax or did not file return does not amount to wilful suppression of facts to evade payment. That apart, the petitioner has a case that service tax amount had already been collected by his principals and they have accounted the same in their books of accounts. In the said circumstances, I am of the view that neither show cause notice nor Ext.P2 order contain any material to arrive at a finding that the Department was entitled to invoke proviso to Section 73(1) of the Act. Hence it requires a fresh consideration of the matter - matter on remand.
Regarding another issue that contractors have already collected the service tax component from the petitioner's bill and they, having accounted for the same, there was no obligation on the part of the petitioner to pay any amount as service tax, apparently the said objection of the petitioner also requires to be considered in accordance with law especially when a contention is raised that the principals of the petitioner have collected service tax from the petitioner.
Petition allowed by way of remand.
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2017 (3) TMI 728 - CESTAT NEW DELHI
Hiring of equipment and facilities - leasing of high quality fire equipments, electrical systems, Air Conditioning plants, DG sets, elavators, fixtures and fittings, chairs, carpeting, pantry and kitchen equipments, music and PA system, access control and security system, etc - Revenue's stand is that providing of office utilities, equipment and facilities by the appellant to the recipient is covered under Business Support Services(BSS), which has been defined u/s 65(104c) of the FA 1994 - Held that: - From the prudent person's point of view, the said equipment and facilities are certainly in the nature of infrastructure. The appellant has provided them not on sale basis but on hiring basis. It means that there is continuous link of the appellant with these equipment. When there is a continuing link and nexus of the appellant with the said equipment and facilities it cannot be called that this is not an “infrastructural support”. And once it is an infrastructural support, the fact of providing the said equipment and facilities would be covered by the definition of “Support Services of Business or Commerce” as defined in section 65(104c) of FA, 1994 and, therefore, the collections made on account of providing these equipment and facilities to M/s Alcatel would be chargeable to service tax under section 65(105zzzq) as the “Business Support Service” provided by the appellant to M/s Alcatel.
As the appellant clams that they have discharged their service tax liability on hiring charges also for the period of 01.06.2007 to 31.03.2010, the tax paid by the appellant can be appropriated by the department under the service head of “Business Support Services” - the matter needs re-examination.
Penalty - Held that: - the appellants have voluntarily made payment of service tax along with interest prior to issue of SCN - provisions of section 80 of the Finance Act, 1994 would be applicable in case of appellant assessee. Therefore, the penalties imposed on the appellant assessee under sections 77 and 78 are hereby dropped.
Appeal allowed by way of remand.
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2017 (3) TMI 727 - CESTAT NEW DELHI
Liability of tax - GTA service - Site formation and clearance service - wrong valuation - Held that: - the demand has been made under GTA, the confirmation of tax liability has been made under the new category of “Cargo Handling Service”. This confirmation is legally not sustainable - on the transport of gypsum, the owner of the mines, M/s. FCI have paid service tax and the certificate to that effect has been produced by the appellant, thus, there will be no liability on the appellant on this category.
Site formation and clearance service - Held that: - extraction of gypsum is one of the activities in the composite contract. The activities carried out by the appellant in the mining area has been correctly categorized as mining service w.e.f. 1.6.2007. The Department accordingly confirmed the tax liability on the appellant. However, the same activity was sought to be classified as “Site Formation and Clearance” , prior to that date. We find such proposition is legally not sustainable.
Wrong quantification of taxable value - Held that: - the appellant’s claim needs to be cross verified by the jurisdictional officers for correctness. The claim of the appellant is that they have not received an amount of ₹ 37,69,684/- as a consideration for taxable service.
The appellant’s liability as demanded under GTA service and Site formation & clearance service is not sustainable - the correctness of value of taxable service requires to be re-verified by the jurisdictional officer - appeal partly allowed and part matter on remand.
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2017 (3) TMI 726 - CESTAT KOLKATA
Refund claim - N/N. 41/2007-ST dated 16.10.2007 as amended - Goods Transport Agency (GTA) Services used in relation to export of iron ore fines - denial on account of nexus - Held that: - the issue is no more res integra - C.B.E. & C. in Para 3.2.1 of Circular No.120/01/2010-ST dated 19.01.2010 conveys that in budget 2009 the scheme under N/N. 41/2007-S.T. was simplified in N/N. 17/2009-S.T. by providing self certification or Chartered Accountant's certification about co-relation and nexus between input Services & the exports. That above logic can be followed for N/N. 5/2006-C.E. (N.T.) where such simplification of N/N. 17/2009-S.T. may not be available - the matter is remanded back to the Adjudicating authority to decide the matter on the basis of Chartered Accountant's certificate to establish the co-relation required under N/N. 41/2007-S.T - appeal allowed by way of remand.
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2017 (3) TMI 725 - CESTAT HYDERABAD
Refund claim - denial on the ground that input services do not have nexus with the output services provided by the appellant - Held that: - the Department has not issued a SCN proposing to reject the refund claim thereby the rejection has been unilaterally done by the Department without affording an opportunity to the appellant to put forward their case for establishing by necessary documents the eligibility of refund - the Tribunal have analysed the nexus/eligibility of refund in the appellant's own case for different period - the appellant is eligible for the refund - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 659 - CESTAT HYDERABAD
CENVAT credit - goods imported for providing taxable services - Lighting equipments - Gloves and Tissues - whether fall under the definition of capital goods being parts/accessories of capital goods? - Held that: - the imported goods fall within the definition of parts and accessories of capital goods - credit allowed - Decided against the revenue.
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2017 (3) TMI 658 - CESTAT NEW DELHI
Penalty - non payment of tax - Banking Finance and other Financial Services - mobilization of capital - service charges - reverse charge mechanism - Held that: - The allegation in the notice for imposing penalty u/s 78 did not bring out any evidence for invoking charge of fraud, willful misstatement etc. on the part of the appellant. The only reason quoted is that but for detection by the officers, the non-payment would have escaped notice. We note this assertion by himself will not support the ground for the charge of suppression, fraud, collusion etc. Further, we note that the full service tax liability along with interest has been discharged well before the issue of SCN. In normal course, the matter should have been closed without even SCN - penalty set aside - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 657 - CESTAT NEW DELHI
Advertising agency service - canvassing work - 10% charges collected from various Govt. departments along with the advertisement expenses - Business Auxiliary Service or not? - Held that: - The whole consideration received by the appellant assessee has to be either taxed under advertising agency or as a canvassing work (BAS) since full money has been collected from the Govt. Departments on a single bill. The dual approach by the Revenue is not legally sustainable. Having accepted the appellant assessee as advertising agency, a portion of the consideration in the same bill cannot be taxed under BAS - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 656 - CESTAT NEW DELHI
Classification of services - work relates to unloading of four wheeler wagons of coal and trucks of steam and slack coal and stacking of same or to feed it directly to crusher hopper - whether cargo handling services or maintenance service? - Held that: - the work order is mainly linked with the activity undertaken by the appellant in the factory and in relation to production process. Unloading of coal is only incidental operation in work, that cannot be only reason to categories the work order for taxing under cargo handling service - nature of work done by the appellant did not come in the category of cargo handling service for service tax purpose - demand under the category of cargo handling service set aside - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 655 - CESTAT MUMBAI
CENVAT credit - whether CENVAT credit is admissible in respect of service tax paid on input services for providing output services i.e., call centre and medical transcription centre services which were exported without payment of service tax during 2005-06? - whether these services were exempted and the refund of service tax paid on input service is liable to be granted to the appellant or otherwise? - Held that: - even if the output service which are exempted services and are exported, service tax paid on input service is eligible for the refund is the law which has been decided by the Hon’ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt Ltd v. Commissioner of Service Tax, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT] - the issue in hand is squarely covered by the above decision - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 654 - CESTAT MUMBAI
Condonation of delay - delay of 624 days in filing the appeal - Held that: - the appellant has not been able to give justifiable reason for delay in filing the appeal before the Tribunal. Since the impugned order was sent to the appellant at the last given address by the adjudicating authority and having been returned by the Post, the lower authorities have followed the procedure of pasting the order on the notice board as mandated u/s 37C of the CEA, 1944 - appeal dismissed - decided against appellant.
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2017 (3) TMI 622 - CESTAT NEW DELHI
CENVAT credit - input services - Outdoor Catering Services - Event Management Service - Held that: - the Outdoor Catering Service (canteen services) were excluded specifically from the definition of input services only w.e.f. 01/04/2011 - A reference can be made to the decision of Hon’ble Karnataka High Court in CCE, CUS & ST, LTU, Bangalore vs. Sansera Engineering Pvt. Ltd. [2016 (5) TMI 660 - KARNATAKA HIGH COURT] where it was held that there is no specification of number of employees in order to decide the entitlement of the canteen services for credit - credit allowed - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 621 - CESTAT NEW DELHI
Abatement of duty - N/N. 1/2006-ST - mandap keeper service - eligibility of CENVAT credit, when the assessee is availing abatement of duty - Held that: - the appellant is eligible for abated rate of duty in terms of N/N. 1/2006-ST as they reversed the entire Cenvat credit availed during the material time along with applicable interest - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 620 - CESTAT HYDERABAD
CENVAT credit - N/N. 5/2006-CE (NT) dated 14.03.2006 - Outdoor catering service - Insurance Service - Company Secretary Service - Management Maintenance or Repair service - Erection Commissioning or Installation service - Held that: - the period involved in the three appeals is prior to 01.04.2011 when the definition of input services had a very wide ambit as it included the words 'activities relating to business' - in the appellant's own case for a different period this Tribunal has analyzed these various services and held the same to be eligible for credit - The services like outdoor Catering services, Insurance services, Company Secretary services, Management Maintenance or Repair services, as well as Erection Commissioning or Installation services has been held to be eligible for credit in various judgements - appeal allowed - decided in favor of appellants.
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2017 (3) TMI 619 - CESTAT HYDERABAD
100% EOU - Refund claim - various input services - Rule 5 of CCR, 2004 - N/N. 5/2006 - CE (NT) dated 14.03.2006 - Held that: - The Tribunal for different period, in the appellant's own case, has held that credit is eligible on the said services. In respect of Work Contract Services, on perusal of the invoices, it is seen that the said services are received by the appellant for minor works like fixing gypsum partition cladding, fixing of glass windows, fixing of wooden door, tower bolt etc. Therefore, these are minor Civil works received by the appellant for the purpose of renovation/repair and maintenance of the premises of the appellant. Therefore, the said services would not fall within the exclusion portion of the definition of input services - rejection of refund unjustified - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 618 - CESTAT HYDERABAD
Refund claim - CENVAT credit - export of output services - various input services - Held that: - The Tribunal in the appellant’s own case [2016 (6) TMI 679 - CESTAT HYDERABAD] has discussed and analyzed the eligibility of credit in respect of all most all services - rejection of refund unjustified - appeal allowed - decided in favor of appellant.
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2017 (3) TMI 617 - CESTAT NEW DELHI
Imposition of penalty u/s 78 - delay in payment of tax - it is the submission of the appellant that the delay in payment of service tax is due to acute financial problem. There is no intention to evade the service tax, full amount with interest for delayed payment has been paid before the issue of show cause notice - Held that: - It is clear that the amount realised from the clients which included the tax, has been used for internal purposes by the appellant disregarding the statutory tax liability to the Government. The bonafideness of the appellant cannot be accepted in such an act. Financial hardship cannot be pleaded against penal action when the tax collected is not remitted to the Government and used for other expenses - penalty upheld - appeal dismissed - decided against appellant.
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2017 (3) TMI 616 - CESTAT NEW DELHI
Franchise Service - Extended period of limitation - it is submitted that since the business activities of the appellant were known to the Department, suppression of facts cannot be alleged - Held that: - relying on the Code of Ethics and Rules provided by the appellant, ld. Adjudicating authority has arrived at the conclusion that the services provided by the appellant confirmed to the definition of 'Franchise Service' for the purpose of levy of Service Tax.
The consistent position of law with regard to applicability of the proviso to Section 73(1)/Section 11A ibid has been that suppression cannot be established where material facts were within the knowledge of the Revenue. Accordingly, where there is no suppression, the pre-condition for applicability of proviso to Section 73(1) cannot be said to be met and hence, extended period of limitation contemplated therein cannot be invoked - In the case in hand, since the modus operandi adopted by the appellant for selling its products were known to the Department and based on the information/documents furnished by the appellant in 2005, the show cause proceedings were initiated by the Department on 12.03.2009, seeking confirmation of service tax demand under 'Franchise Service' for the period October' 2003 to March' 2007, we are of the considered view that the proceedings are barred by limitation of time - the appeal should succeed on the ground of limitation.
Whether service tax amounting to ₹ 1,60,68,000/- under 'Business Auxiliary Service' and ₹ 46,08,759/- on 'Intellectual Property Right Service' under reverse charge mechanism are required to be demanded along with interest? - Held that: - It is an admitted fact on record that the amount of ₹ 7,38,61,083/- and ₹ 23,24,00,000/-, reflected in the books of accounts of appellant as outstanding as on 10.05.2008, were towards services received from abroad from the associated companies. Since on the date of amendment of Section 67 ibid and Rule 6 ibid, such amounts were reflected under outstanding receipts, the appellant is liable to pay service tax on such amount under reverse charge mechanism as per Section 66A ibid - service tax amounting to ₹ 46,08,759/- and ₹ 1,60,68,000/- paid by the appellant and appropriated in the impugned order are in conformity with the service tax statute - Since, the appellant had delayed in making such payment, interest amount thereon are required to be paid, since the same is compensatory in character.
Appeal disposed off - decided partly in favor of appellant.
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2017 (3) TMI 615 - CESTAT NEW DELHI
Liability of tax - cleaning service rendered to railways, diesel locomotives, railway station premises, general manager's office, Airport Authority of India and certain colleges and schools - whether these organizations are commercial organizations or not so as to attract levy of service tax? - Held that: - to decide the nature of building, whether commercial / industrial, it is necessarily, the nature and the functions of the occupant is examined - railways or airport authority as non commercial organizations only on the ground that they are public utility organizations has no legal basis. Incidentally, it may be noted that the freight revenue of railways is more than double of the activity of passenger revenue. It only shows that substantial railways is in commercial freight transport. Even, with reference to the status of the railway stations, the same cannot be considered as non commercial building or premises.
Regarding ordinance factory - Held that: - the definition covers industrial building and premises thereof. Ordnance factory premises are covered by industrial building. Even otherwise clause (ii) of the definition clearly mentions factory as one of the premises covered for tax liability. The factory in the present case is not in relation to agriculture, horticulture, animal husbandry or for dairying. As such in the absence of any exclusion from the statutory definition, the appellants are liable to service tax on this account.
With reference to cleaning activity of circuit house, college, hospital and school premises, we find these are not covered by the tax entry either as commercial or industrial building or as a factory building and machinery, tank or reservoir of commercial and industrial building and premises thereof.
Extended period of limitation - Held that: - The conduct of the appellant regarding the disclosure of details referring to the earlier meetings with the jurisdictional officers brings out the fact that allegation of suppression or willful misstatement cannot be sustained in this case against the appellant - the appellant specifically intimated regarding their belief on non-liability of tax because of the services being rendered to Government and other non-commercial organizations - extended period not invokable.
Appeal disposed off - decided partly in favor of appellant.
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