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Service Tax - Case Laws
Showing 81 to 100 of 144 Records
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2014 (6) TMI 425 - CESTAT MUMBAI
Denial of refund claim - renting of immovable property service - Bar of limitation - Held that:- appellant has paid service tax during the impugned period for which they are not required to pay service tax at all as clarified by CBEC. As the payment made by the appellant is not of service tax, therefore, as held by this Tribunal in the case of Shankar Ramchandra Auctioneers (2010 (4) TMI 391 - CESTAT, MUMBAI) the provisions of section 11B of the Central Excise Act are not applicable. Therefore, the refund claim filed by the appellant is not time barred - appellant are entitled for refund claim as filed in time and the provisions of section 11B of the Central Excise Act, 1944 are not applicable to the facts of this case - Decided in favour of assessee.
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2014 (6) TMI 424 - CESTAT AHMEDABAD
Demand of the differential service tax - Penalty u/s 76 & 78 - Held that:- show cause notice was issued on 16.10.2009 i.e. after the amendment was made under Section 78 of the Finance Act, 1994. In my view, both the lower authorities had concurrently held that provisions of Section 78 having been invoked and penalty imposed, Section 76 penalty may not be justified is a correct conclusion that has been arrived, in view of the decision of the Hon’ble High Court of Punjab and Haryana in the case of First Flight Courier Ltd. [2011 (1) TMI 52 - High Court of Punjab and Haryana] - Decided against Revenue.
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2014 (6) TMI 423 - CESTAT NEW DELHI
Denial of refund claim - Refund in respect of the services exclusively provided to SEZ - Held that:- There is no dispute about the refund of ₹ 43,656/-, which was also not the subject matter of the Tribunal’s order dated 04.04.2012. The dispute before the Tribunal was in respect of ₹ 1,25,920/-, which related to the refund of common services. As such, the percentage of the value of the services has to be applied to the common services and not to the entire refund claim. - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 422 - CESTAT BANGALORE
Demand of service tax - Business Auxiliary Service - Held that:- Board’s Circular dated 26-9-2011 was not considered by the learned Commissioner while passing the impugned order dated 7-10-2011. We have also not found any findings on the aforesaid plea of the assessee regarding certain transactions with foreign companies for the period after April, 2006. In these circumstances, the question whether the appellant is liable to pay Service Tax with education cesses on the amounts paid by them to the foreign companies from 18-4-2006; and other issues associated therewith, need to be remanded to the adjudicating authority for de novo decision. As regards the demand raised for the period prior to 18-4-2006, the issue stands settled in favour of the appellant by numerous decisions including the Hon’ble Bombay High Court’s judgment in Indian National Ship Owners Association case (2008 (12) TMI 41 - BOMBAY HIGH COURT) which has been accepted by the C.B.E. & C. Accordingly, the demand confirmed by the adjudicating authority against the assessee for the period prior to 18-4-2006 is set aside and the corresponding penalties are vacated.
For the period from 18-4-2006, the learned Commissioner is requested to readjudicate the issues in accordance with law and the principles of natural justice. It is made clear that all the contentions raised by the assessee shall be duly considered and appropriate findings recorded thereon - Decided in favour of assessee.
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2014 (6) TMI 421 - CESTAT CHENNAI
CENVAT Credit - Penalty - Held that:- This is not a case of availing irregular credit by reason of fraud, collusion etc. This is a case where the appellants were under the bona fide belief that credit of service tax paid on all the services utilized by them both for providing authorized service and for sale is available to them and they have paid the service tax subsequently. I am of the view that this is a case which is squarely covered under the provisions of Rule 15(1) of the CENVAT Credit Rules, 2004 which prescribes a maximum penalty of Rs. 2,000/- for taking or utilizing CENVAT credit wrongly. Hence the penalty of Rs. 71,965/- is reduced to Rs. 2,000 - Decided partly in favour of assessee.
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2014 (6) TMI 393 - CESTAT NEW DELHI
Demand of service tax - Cargo Handling Service - work orders mention separate rates for transportation, tipper loading and wagon loading and according to the appellant, the invoices had been issued on this basis only. - Held that:- Since, the work orders prescribe separate rates for tipper loading that is loading of the coal/mineral ore into the tipper trucks, its transportation up to the railway siding and unloading of the coal/mineral ore into the railway wagons, the appellant s contracts with their clients has to be treated as separate contracts for transportation, loading and unloading of coal/mineral ores, though under one instrument. The coal/mineral ore loaded by the appellant at the coal/mineral ore heaps and thereafter unloaded into the wagons was meant for transportation to its destination by railways and, therefore, the same would have to be treated as ‘cargo’ and its loading into the tipper trucks and thereafter unloading into the railway wagons would have to be treated as cargo handling service.
Since, in this case in the appellant's contracts with their clients, the activity of the loading of the coal/mineral ore into the tipper trucks and its subsequent unloading into the railway wagons for its transportation is clearly identified and separate rates are prescribed for the same, we hold that the service tax would be chargeable on the amount charged by the appellant for these services under Section 65 (105) (Zr) readwith Section 65 (23) of the Finance Act, 1994. - Decided against the assessee.
However, service tax would not be chargeable on the amount charged for transportation, as even if this transportation within the mines is treated as GTA service provided by the appellant agency, the liability to pay service tax in respect of this activity would be of the service recipient - Matter remanded back - Decided in favour of assessee.
Extended period of limitation - Held that:- non-payment of service tax has to be treated on account of bonafide belief of the appellant that their activity was not taxable and accordingly the longer limitation period under proviso to Section 73 (1) of the Finance Act, 1994 would not be available to the Department. - demand beyond the normal period of limitation set aside - Decided in favor of assessee.
Levy of penalty - Held that:- during the period of dispute there were conflicting decisions by the Tribunal with regards to taxability of the appellants activity, it has to be held as the non-payment of service tax by the appellant was due to bonafide belief on the part of the appellant that their activity is not taxable. Therefore in view the provisions of Section 80 of the Finance Act, 1994, the penalty under Section 77 and 78 would have to be waived. - Penalty waived - Decided in favor of assessee.
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2014 (6) TMI 392 - CESTAT MUMBAI
Simultaneous penalty - Penalty u/s 76 & 78 - whether penalty under section 76 & 78 of the Finance Act, 1994 for the period prior to 10.05.2008 can be imposed simultaneously on the assessee or not - Held that:- Both sides produced certain decisions of the Hon'ble High Court. As in the case of United Communication Udupi 2011 (10) TMI 163 - KARNATAKA HIGH COURT, the Hon'ble High Court held that the liability of penalties cannot be imposed under section 76 and 78 of the Finance Act, 1994 simultaneously. But in the case of Krishna Poduval 2005 (10) TMI 279 - Kerala High Court wherein the Hon'ble High Court of Kerala has held that penalty under section 76 & 78 of the Finance Act, 1994 can be imposed simultaneously and same view has been taken by the Hon'ble Delhi High Court in the case of Bajaj Travels Ltd. 2011 (8) TMI 423 - DELHI HIGH COURT - Matter referred to larger bench.
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2014 (6) TMI 391 - CESTAT NEW DELHI
Denial of Refund claim - Export of services - CENAVAT Credit - Notification No.5/06-CE(NT) dt. 14.03.06 - Non compliance with procedure prescribed under Notification No. 12/05-ST - Held that:- Refund claim, in question, is for refund of accumulated Cenvat Credit terms of Rule 5 of the Cenvat Credit Rules, 2004 for which the Notification No. 5/06-CE(NT), issued under this rule, prescribes the condition to be fulfilled and the procedure to be followed. The Notification No. 12/05-ST issued under Rule 5 of the Export of service Rules 2005, prescribes the conditions to be fulfill and procedure to be followed for claiming rebate in respect of export of services. The two schemes are totally different and the procedure prescribed and the conditions to be fulfilled for claim of cash refund of accumulated Cenvat Credit under Rule 5 of the Cenvat Credit Rules, 2004 and for claiming rebate in respect of export of services in term of Rule 5 of the Export of Service Rules, are totally different.
The lower Authorities mixed up the two issues. In this case it was required to be seen as to whether the procedure prescribed under Notification No. 5/06-CE(NT), issued under Rule 5 of Cenvat Credit Rules, 2004 has been followed and the conditions prescribed in this Notification have been fulfilled. Notification No. 12/05-ST issued under Rule 5 of the Export of Service Rules, 2005, which prescribes the conditions to be fulfilled and the procedure to be followed for claiming rebate in respect of export of services, has no application. The impugned order is, therefore, set aside and the matter is remanded to the Assistant Commissioner for examining the refund claim under Rule 5 of the Cenvat Credit Rules, 2004 on the basis of the conditions and the procedure prescribed, in this regard in the Notification No.5/06-CE(NT) dt. 14.03.06 which is the correct Notification applicable to this case - Decided in favour of assessee.
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2014 (6) TMI 390 - CESTAT BANGALORE
Refund, under Rule 5 of the Cenvat Credit Rules, 2004 - Rejection of the claim of refund to the extent of Rs. 1,24,27,580/- on the ground that no nexus was established between the input services and the output service - absence of registration - Held that:- Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsels appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence in law. Therefore, said finding recorded by the lower authorities cannot be sustained - Decided against Revenue.
Demand of service tax - air ticket booking and professional charges - Held that:- air tickets were used by employees of the company in connection with the business of the company. Similarly, it is submitted that the professional charges were paid to Chartered Accountants in connection with the business of the company. Neither of the submissions is supported by any documentary evidence. The learned counsel for the assessee submits that, given an opportunity, the requisite evidence can be adduced before the original authority - Accordingly, the decision taken by the lower appellate authority in relation to these services is set aside and the question of nexus is directed to be re-examined by the original authority after giving the assessee a reasonable opportunity of adducing evidence and of being personally heard - Decided in favour of assessee.
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2014 (6) TMI 389 - CESTAT CHENNAI
Penalty - Commissioner set aside penalty u/s 80 - Held that:- lower appellate authority has taken note of the fact that the appellants have paid the tax along with interest before issue of show cause notice and he has invoked the provisions of Section 73(3) of the Act which permits no further action to be taken once the assessees paid the tax with interest before issue of show cause notice - no infirmity in the impugned order passed by the lower appellate authority - Decided against Revenue.
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2014 (6) TMI 356 - CESTAT NEW DELHI
Demand of service tax - suo moto credit - Amount charged for arranging visa for their clients - Business Auxiliary Service - cancellation of tickets - Held that:- activity is not covered by any of the clauses of the definition of Business Auxiliary Service as given in Section 65 (19) of the Finance Act, 1994, therefore, we hold that this activity is not taxable under Business Auxiliary Service during the period of dispute and, hence, the demand of service tax on this amount is not sustainable.
Cancellation charges are collected from the persons booking the air ticket and this is not the amount received from the appellant s client the airlines. It is not disputed that in respect of cancelled tickets, the airlines do not give any commission whatsoever to the appellant. In view of this, we hold that no service tax would be payable under Section 65 (105) (l) of the Finance Act, 1994 on the cancellation charges which are a part of the airfare received by the appellant from the persons booking the air ticket who, subsequently, had cancelled the same. Moreover in any case, in terms of exemption Notification No. 22/97-ST dated 26/06/97 the amount received by the air travel agent, which is in excess of the commission received by him from the airline for the booking of passage for travel by air, was exempt from service tax and in terms of this exemption notification no service tax would be leviable on the cancellation charges. - Decided in favour of assessee.
As regards, the suo moto credit of service tax paid in respect of cancellation of tickets, we find that this issue stands decided in favour of the appellant by the judgment of Hon’ble Punjab & Haryana High Court in the case of CCE & ST, Jalandhar vs. Janta Travels (P) Ltd. (2008 (8) TMI 187 - PUNJAB AND HARYANA HIGH COURT) and, hence, the impugned order on this issue is not sustainable. - Decided in favour of assessee.
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2014 (6) TMI 355 - KERALA HIGH COURT
Waiver of pre deposit - demand of service tax on GTA services from recipient of services being proprietary concern - Held that:- some more leniency ought to have been shown to the appellant in the matter. Accordingly, taking into consideration the factual issues involved in the matter, we are of the opinion that interest of justice will be served by directing the appellant to pay only an amount of Rs.35 lakhs instead of Rs.70 lakhs as directed by the Tribunal. - stay granted partly.
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2014 (6) TMI 354 - CESTAT NEW DELHI
Denial of rebate claim - notification no.11/2005-ST dated 19.4.2005 - Export of business auxiliary services - Held that:- In both the cases, the rebate claims under notification no.11/2005-ST issued under Rule 5 of the Export of Service Rule, 2005 have been rejected, In both the cases, though in course of proceedings before the Commissioner (Appeals) the agreements of the appellants with their foreign clients had been produced, the finding of the Commissioner (Appeals) is that the service rendered cannot be classified as Business Auxiliary Service and also the same cannot be treated as Export of Service. Ongoing through the agreements of the appellants with their foreign clients, M/s. Secheron SA, Switzerland and M/s. Gimota AG, Switzerland, we find that function of the appellant is promoting the sales of their client s products in India, conducting market survey and, if required, conducting inquiries with regard to solvency and reliability of the clients and besides this, they are also required to provide after-sale warranty service in testing, etc. on behalf of their foreign clients to the buyers in India. These services are covered by the definition of Business Auxiliary Service as given in Section 65(105)(zzb) read with Section 65(19).
Services provided by the Appellants have to be treated as export of service, the appellant would be entitled for rebate of service tax paid on the same in terms of notification no.11/2005-ST issued under Rule 5 of the Export of Service Rules, if the procedure prescribed in this notification has been followed and the conditions prescribed therein are fulfilled. The Assistant Commissioner has not gone into this aspect. In view of this, the impugned orders are set aside and the matters are remanded to the original adjudicating authority for examining the rebate claims in terms of the notification no.11/2005-ST issued under Rule 5 of the Export of Service Rules. - Decided in favour of assessee.
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2014 (6) TMI 348 - CESTAT MUMBAI
Demand of service tax - service of storage and warehousing - Held that:- "storage and warehousing" includes storage and warehousing services for goods including liquids and gases but does not include any service provided for storage of agricultural produce or any service provided by a cold storage" - all the operations of the outlets are under the control of the dealers and not of the appellant. It is not as if the dealers bring their goods to the appellant for storing or warehousing and thereafter clear the goods so stored. Appellant only owns and leases facilities to the dealers for their use. Keeping in view the nature of transaction the service provided cannot be considered as storage and warehousing service provided by the appellant - Decided in favour of assessee.
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2014 (6) TMI 347 - CESTAT MUMBAI
Goods transport agency service (GTA) - Abatement of 75% as per Notification 32/2004 - endorsement not on the transport document or consignment - Held that:- appellant availed goods transport agency service and paid the Service Tax as per the Service Tax Rules, 1994 as service recipient. Although there is no endorsement on the consignment that the transporter has not availed Cenvat credit but it is implied that when the transporter has not paid any Service Tax, question of availment of input/input Service Tax credit does not arise. In view of these observations, we do not find any merit in the impugned order. Therefore, impugned order is set aside - Decided in favour of assessee.
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2014 (6) TMI 346 - CESTAT AHMEDABAD
Waiver of pre deposit of refund allowed - refund of amount of Cenvat credit availed on input/input services used in the manufacture of final products - the words ‘used in’ has been substituted by the words ‘used in or in relation to’. - Held that:- issue is no more res integra due to amendment carried out to Notification No. 5/2006-C.E. (N.T.) by the Finance Act, 2010, Clause 74 and is also covered by the judgment of this Bench in the case of Naval Overseas Pvt. Limited (2011 (5) TMI 326 - CESTAT, AHEMDABAD) - Decided in favour of assessee.
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2014 (6) TMI 314 - CESTAT NEW DELHI
Cenvat credit of service tax - renting of immovable services - cenvat credit on input services used in the construction of immovable property - Held that:- prima facie assessee is entitled to the Cenvat credit of service tax paid on input services used in the construction of immovable property.
Regarding duty demand - adjudicating authority has confirmed the demand based upon the bills raised by them instead of quantifying the same on the amount received by them. If the rent amount received is taken into consideration, the total duty liability would come to Rs.24,94,797/-. Out of the said demand, they have deposited Rs.8,36,521/- from their Cenvat credit account and Rs.4,94,245/- by cash. The same stands informed to the jurisdictional Supdt. under the cover of letter dated 18.10.2013. As regards the balance amount, he submits that their tenant had approached the Hon’ble Delhi High Court and subsequently Hon’ble Supreme Court and in terms of the interim order passed by the Hon’ble Supreme Court 50% of the service tax, required to be deposited. The same stands deposited by their tenant. As such, he submits that no more dues are required to be deposited in respect of the said demand - stay granted.
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2014 (6) TMI 313 - CESTAT AHMEDABAD
Discharge of service tax liability - renting of immovable property services - the period of 2007-08 to 2011-12 - Held that:- post October 2011, the appellant has started paying the service tax liability as per the Apex Court’s direction and for the period prior to October 2001, and the appellants service recipient M/s. Orpat Marketing Pvt. Ltd. has deposited 50% of the amount of the rent and executed a surety bond of 50%. He relies upon the letter written by the said M/s. Orpat Marketing Pvt. Ltd. for his proposition. On perusal of the records, we find it so. It seems that lessee is following the direction of Apex Court in its correct spirit, we find that the appellant has made out the case for the waiver of the pre-deposit of balance amounts involved - Stay granted.
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2014 (6) TMI 312 - CESTAT BANGALORE
CENVAT Credit - Management Consultancy Service, Maintenance and Repair Service and Renting of Immovable Property Service - Held that:- There is a need for fresh appreciation of Balance Sheet, Profit & Loss Account and documents and evidence which the appellants have produced to consider whether the tax liability arises prior to 1.6.2007 and whether reimbursable expenses can be considered as expenditure category, etc. Each and every submission made by the appellant is required to be dealt with and we find that both the lower authorities failed to do so. Since we find that the appellant’s claim that substantial income from ‘Renting of Immovable Property’ was not leviable to tax and further expenses like electricity charges, water charges, insurance and property tax of the building, etc. incurred should not suffer service tax, in our opinion, an amount of more than Rs. 10 lakhs deposited by the appellant is sufficient for the purpose of pre-deposit and since we feel that in view of the above observations, the matter should be remanded to the original adjudicating authority so that the evidence and documents produced by the appellants are appreciated properly and conclusion is arrived at.
Accordingly, the impugned order is set aside and the matter is remanded to the original adjudicating authority, keeping all the issues open, with a request to ensure that all the submissions, documents and evidences made by the appellant are considered and dealt with and conclusion is arrived at in accordance with law. Needless to say that the appellant shall be given reasonable opportunity to present their case, documents and evidence. - Decided in favour of assessee.
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2014 (6) TMI 311 - CESTAT MUMBAI
Demand of service tax - Commercial and Industrial Construction Service - Whether the "Onshore Terminal" developed by M/s Reliance Industries Ltd at Pedda Gadimoga Village, near Kakinada, Andhra Pradesh could be considered to be as "Transport Terminal" for the purpose of exclusion from levy of service tax under the category of "Commercial and Industrial Construction Service." - Held that:- there is no arrival from different destination and dispersal to different destination. Movement of gas is unidirectional and is fixed. Here there is just one item. There is no arrival of freight. Extracted fluid is received. Processed dry gas is sent to distribution pipeline - Recovered MEG is processed and again pumped to sub-sea facility. TEG is used in the OT for processing. We find that the said Article speaks about various transport terminals but does not talk of transport terminal for gases. Thus, in our view, the concept of transport terminal is relevant for transportation by air, sea, road and not for transporting gases through pipelines.
In any processing facility, material has to be received and dispatched but that would not make the processing facility as ‘Transport Terminal'. In our view, transportation is only incidental to the processing facility. After all the fluid received is for extraction of dry gas and thereafter the dry gas is required to be sold to its customers and therefore there has to be facility to receive and transport the same.
Even the owner of the facility calls the facility as ‘Onshore Terminal' and does not call it ‘Transport Terminal'. This itself indicates that even the owner does not recognize the facility as ‘Transport Terminal'. We have no hesitation in holding that the facilities available at the onshore terminal at Gadimoga cannot be termed as ‘Transport Terminal'.
There is no requirement that the transport terminal should be owned by a public authority alone. However, since we have held that the onshore terminal at Gadimoga cannot be considered as transport terminal, this argument though in favour of the appellant does not help in the present situation.
Extended period of limitation - Held that:- Proviso to Section 73 has been invoked and penalty also has been imposed under Section 78 of the Finance Act. We find from the impugned order that the appellant was of the view that immediately on receipt of mobilization advance that the service tax is required to be paid and there have been exchange of letters between the appellant and their client about the same. However, later on instead of collecting the service tax from the customers, started requesting a comfort letter from their client which was also not received by them. Under the circumstances, it is a clear cut case where the appellant knew their service tax liability but still chose not to collect and pay, but started asking comfort letter. This is clear cut suppression of facts, contravention of provision of service tax law with willful intention and therefore the extended period is rightly invoked. Penalty under Section 76, Section 77 and Section 78 of the Finance Act, 1944 has also been correctly imposed.
Demand alongwith interest and penalty confirmed - Decided against assessee.
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