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Service Tax - Case Laws
Showing 101 to 120 of 135 Records
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2009 (8) TMI 304 - CESTAT, NEW DELHI
Demand under Commercial training and Coaching services – Penalty – The appellant is a national standard body constituted under the BIS Act, 1986 coming under the administrative control of the Ministry of Consumer Affairs, Food & Public Distribution, Government of India. In this case Tri.-(Del.) by considering the claim of appellant that they had a bona fide belief that their that their activities will not attract service tax held that the appellants had reasonable cause for their failure in registering themselves for paying service tax and subsequently, on coming to know of the legal position they have complied with the provisions of law. Considering the nature of the organisation, nature of activities undertaken by them and absence of arty intention to evade service tax, it is a fit case for invoking the provision of Section 80 of the Finance Act, 1994. The appeal is allowed by setting aside the penalty.
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2009 (8) TMI 301 - CESTAT, MUMBAI
Stay/Dispensation of pre-deposit – invoking of extended period – The Appellant was engaged in the activity of lowering, lying, jointing and testing GRP pipes at the customer site, during the material period. . The case of the appellant is that as GIDC is not a profit-making institution, the service rendered to them would not come within the ambit of the “Commercial or Industrial Construction Service”. In this case Tri-Mumbai-held that a blind belief is not be treated as bona fide belief. In this connection, support is claimed from the decision in Tanzeem Screenarts v. Commissioner of Central Excise, Mumbai-I, 2006 (196) E.L.T. 209 (Tri.-Mumbai). It appears, the fact that huge amounts were collected from GIDC as consideration for service which was rendered to them in the same manner as to private agencies was suppressed in the service tax returns. That the Tribunal direct the appellants to pre-deposit an amount of Rs.50.00 laths (Rupees Fifty lakhs only) under Section 35F of the Act (as applicable to service tax appeals) within a period of four weeks and report compliance on 6-10-09. In the event of due compliance, there shall be waiver of pre-deposit in respect of the penalty and the balance amount of service tax.
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2009 (8) TMI 291 - CESTAT, MUMBAI
“Management Consultant Service” and “Business Auxiliary Service” - Prima facie, in respect of the services covered by Article 2.1 of the Agreement between the appellant and the Joint Venture Company, the appellant is already registered with the department as provider of “Business Auxiliary Service” with effect from 1-7-03 and are paying service tax under that category. Such payments of service tax are being accepted by the department as well. Prima fade the same services cannot be classified under any pre-existing entry of Section 65 of the Act, 1994 inasmuch as the definition of “Management Consultant” has not been shown to have undergone any change with effect from 1-7-03 with the introduction of “Business Auxiliary Service. The appellant has made out a prima facie case against pre-deposit of the demand of service tax and penalty. Therefore, there will be waiver of pre-deposit and stay of recovery in respect of the amounts of service tax and penalty.
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2009 (8) TMI 290 - CESTAT, BANGALORE
Demand under Port service - The appellants are registered with the department as a provider of services classifiable under the heads “Clearing and Forwarding Agent” and “Steamer Agent”. – appellant providing service of loading, unloading, reloading, transportation, etc. - Commissioner found that essential character of the services rendered by the appellants was of ‘port services’ – Various services rendered to clients in port premises based on certificate issued by port authorities – Tribunal in precedent decisions held that the impugned activities were not required to be provided by the port under Major Port Trusts Act, 1963. The registration certificate or license issued by the port authorities cannot be considered as the authorization envisaged in the definition of ‘port service’. In the circumstances, the impugned demand fails.
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2009 (8) TMI 289 - CESTAT, BANGALORE
Penalty - The issue involved in this case being that the appellant is allegedly charging, collecting but not depositing the service tax with the department, which was noticed by the authorities on verification of the records - The period involved in this case is from January 2007 to June 2007 – Appellant submits that the delay in discharging the tax liability in the impugned period, was due to severe financial crunch. He submits that the Board’s Circular No. 137/167/2006-CX-4, dated 3-10-2007 would squarely cover the issue in favour of the appellant - Circular No. 137/167/2006-CX-4 clarifying that SCN not to be issued when service tax paid with interest and proceedings deemed as concluded – Tribunal in similar situation in Vee Aar Secure v. Commissioner of Service Tax, Bangalore [2009 - TMI - 32930 - CESTAT, BANGALORE], set aside the penalty - we find that the appellants have made out a prima fade case in their favour for non-imposition of penalty under Sections 76, 77and 78 – Penalty set aside
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2009 (8) TMI 288 - CESTAT, NEW DELHI
Commercial Coaching and Training Service – advances - The appellant collected a sum in the month of May 2003 and June 2003 respectively as advance coaching fee for coaching starting from July 2003 to March 2004 period. Even though the service became taxable w.e.f. 1-7-03, the respondent neither took the registration not deposited the service tax on the advance received by them for the taxable service being provided by them from 1-7-03 - The taxing event for the service tax is providing of service and therefore liability to pay the service tax would arise during the period when the service was provided - liability to pay the service tax would be on 5th day of the month immediately following the calendar month in which the service was provided. - In view of this, the respondent’s plea that since the payment had been received during the period prior to 1-7-03 when the ser vice was not taxable, no service tax would be chargeable, is not correct. - Same view has been taken by the Tribunal in the case of CCE, Indore v. PT. Education and Training Ser vice Ltd. reported in 2009 (15) S.T.R. 453 - In view of settled legal position on this issue, the impugned order setting aside demand is not sustainable. The Revenue’s appeal is allowed.
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2009 (8) TMI 287 - CESTAT, BANGALORE
Submission that as regards the ‘Mandap Keeper Services’, the demand of service tax is not sustainable as the authority has considered the ‘room rental charges’ and ‘sale of food’ under ‘Mandap Keeper Services’ for the purpose of demand. – we find that in respect of the service tax demand on the services of ‘Mandap Keeper’, order passed by this Bench, in the case of M/s. Eagleton The Golf Resort would squarely cover the issue in favour your of the applicant. We also find that the Coordinate Bench, New Delhi in the case of M/s. Merwara Estates v. CCE, Jaipur, reported in [2009 - TMI - 34571 - CESTAT, NEW DELHI]has given relief to the assessee. - As regards the demand of service tax on ‘Membership of Club or Association Services’, we find that the service tax amount sought by the Revenue is in respect of discount which has been offered by the appellant on Membership fee collected by the Hotel. We find that this proposition may be incorrect. As regards the service tax demand on ‘Beauty Treatment’ and ‘Health & Fitness Services’, we find that this is a contentious issue - Considering the fact that the applicant has already deposited an amount of Rs. 16.58 lakhs during the pendency of the investigation and keeping in mind the financial hardship, we direct the applicant to pre-deposit further an amount of Rs. 7,00,000/- - Balance amount of pre-deposit waived and recovery thereof
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2009 (8) TMI 284 - CESTAT, BANGALORE
Remand order - correct valuation of the taxable services rendered by the appellant - Commissioner (appeals) has remanded the matter back to the lower authority to consider the issue afresh. To our mind, the impugned order is incorrect in coming to a conclusion and directing the lower authorities to consider the issue afresh. If at all, the learned Commissioner (Appeals) had to remand the matter back to the lower authorities, he could have done so keeping all the issues open – Law settled in impugned isuse relating to Photography service - Commissioner (Appeals) order of remanding the matter is correct but directions to follow the observations made in the impugned order would be incorrect. Accordingly we set aside the impugned order and remand the matter back to the Original Authority keeping all the issues open and decide the matter afresh after granting an opportunity of personal hearing to the appellant and also considering the evidences on record that may be produced, and also the judicial pronouncements made on the issue.
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2009 (8) TMI 260 - CESTAT, CHENNAI
Commissioner (Appeals) upheld the orders of the adjudicating authority directing recovery of refund erroneously granted of credit of input service tax. - period involved in these four cases is prior to 18-4-2006 when Section 66A came into effect and, therefore, the appellants were not liable to pay tax for the period prior thereto. Therefore, the refund claims ought not to be rejected for the reason that during the period in dispute, there was no liability cast upon the appellants to pay service tax. I, therefore, set aside the impugned order of the Commissioner (Appeals)
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2009 (8) TMI 236 - CESTAT, BANGALORE
BAS - Money transfer service - Appellants appointed as a sub-agent for undertaking money transfer – demand of Service Tax under the category of business auxiliary service. The allegation in the show cause notice was that the said activity is nothing but promoting the business of agent (WFL) - sub-representation agreement entered between the appellant and WFL – Agreement clearly indicating principal (Western Union) abroad as ultimate beneficiary - It is undisputed in this case, that a person approaches Western Union situated outside India for transfer of fund to a beneficiary in India - . It is undisputed that the appellant herein does not charge any amount as commission or fee from the recipients of the amount. - The said Western Union charges fee from the person who is situated outside India and pays WFL some amount as commission and WFL pay current appellant a part of the amount as compensation. In the whole transaction it can be seen that the services rendered by the appellant of money transfer is directly to Western Union. If that be so, it can be said that the appellant is providing the services to Western Union whose beneficiaries are outside India. – Benefits of service accrue to person outside India - We find strong forces in the contentions raised by the ld. Counsel that the issue is now squarely covered in favour of the assessee by the decision of this Bench in the case of Nipuna Services Ltd. V. CCE&ST, Hyderabad [2009 - TMI - 33480 - CESTAT BANGLORE]. - Accordingly, we are of the considered view that services rendered appellant cannot be taxed under the category of ‘business auxiliary services’
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2009 (8) TMI 174 - CESTAT, MUMBAI
Demand of service tax is on the cost of materials used in rendering the “commercial or industrial construction service” from 16-6-2005 to 31-3-2006 - According to the assessee, on cost of material, sale tax was paid, so it was not included in value of service - This argument of the assessee may be good for the period from 1-6-2007 when the “works contract” concept made its way into the domain of service tax for the first time. Prior to 1-6-2007, the assessee was rendering a service which squarely fell within the ambit of “construction service” upto 15-6-2005 and “commercial or industrial construction services” thereafter upto 31-3-2006. The assessee has never disputed this fact. We are not impressed with their present attempt to escape tax liability for the period upto 31-3-2006 on the strength of a doctrine which was introduced on 1-6-2007 with prospective effect – since materials sold to service recipient as evidencd by invoices showing cost of materials separately and sales tax paid thereon, benefit of exemption under notification 12/2003-S.T. is admissible – In respect of tax liability on the “commercial or industrial construction service” rendered as sub-contractor, Circular dated 23-8-2007 stting sub-contractors as liable to pay service tax “oppressive” and hence, having prospective effect only - the assessee should not be asked to pay service tax if main contractor has paid the tax - however, their claim for abatement under Notification 1/2006 ST dated 1-3-2006 should be considered if appellant held liable to pay tax -
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2009 (8) TMI 173 - CESTAT, BANGALORE
Liability of recipient in case of import of service - appellants in this case have been charged with non-payment of service tax liability and were alleged to have been evading service tax on the services received under the category of “Intellectual Property Services” and under the category of “Business Auxiliary Services” received from foreign nationals - The period of dispute is from 10-9-04 to 31-3-06 - The issue involved in this case is whether during the relevant period, the recipient of the service is liable to be imposed with service tax only on the ground that service provider is a non-resident and is a person who is situated outside India. We find that this issue is no more res-integra as the issue has been settled by the Hon’ble High Court of Bombay in the case of Indian National Shipowners Association [2009 - TMI - 32013 - HIGH COURT OF BOMBAY] holding recipient as liable from 18-4-2006 - The appeal is allowed
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2009 (8) TMI 172 - CESTAT, AHMEDABAD
Credit of service tax paid on input service - testing and technical analysis service in respect of medicines which never reached the market - Even the trial manufacture and R & D conducted in respect of such drugs which did not reach to the market has to be considered as part of the manufacturing process and business activity. Therefore, even if goods have not reached commercial production stage, credit is admissible. - As regards C&F Services also, we find that observation of the Commissioner is that a service of C&F cannot be considered as a sale promotion, is not correct. C&F has a definite role to play in promotion of sales by storing the goods and supplying the same to the customers, thus he is actually promoting the sales. Service even though rendered is beyond the place of removal, credit is admissible - As regards courier services, the Tribunal decisions in the case of Deloitte Tax Services (India) Pvt. Limited –[2008 - TMI - 3715 - CESTAT, BANGALORE] and CCL Products (I) Limited – [2009 - TMI - 34642 - CESTAT, BANGALORE] squarely cover the specific service and therefore the same is admissible. - Similarly, Foreign Commission Agent services are also admissible, since it is a sale promotion - Without maintenance and repair or management, the factory cannot be nun and therefore, service tax paid on these services is also admissible - in view of. the several decisions cited by the learned advocate the credit of repair and maintenance of photo copier, Air Conditioner, Water Cooler etc. is also available. – Appeal allowed
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2009 (8) TMI 170 - CESTAT, NEW DELHI
Refund of unutilized credit - appellants are engaged in the manufacture of Soya Oil exempted under Notification No. 3/2006, and De-Oiled Cake chargeable to nil rate of duty. The appellants has been exporting De-Oiled Cake under Bond. The appellants filed refund claim of unutilized Cenvat credit on input service i.e. GTA service, Insurance, Brokerage service, and Travel Agency service - Bombay High Court in the case of Repro India Ltd. v. UOI & Anrs., allowed the refund of unutilized Cenvat credit even on exempted goods or goods chargeable to nil rate of duty, exported under bond - Tribunal on the identical issue in the case of Punjab Stainless Steel Industries v. CCE, Delhi-I, reported in [2008 - TMI - 4544 - CESTAT, NEW DELHI] allowed refund claim, which was upheld by the Hon’ble Delhi High Court, as reported in the case of CCE, Delhi-I v. Punjab Stainless Steel – [2008 - TMI - 31677 - HIGH COURT DELHI]. – Held that appellant is eligible for refund of Cenvat credit in exported goods under Rule 5 of Cenvat Credit Rules
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2009 (8) TMI 164 - CESTAT, AHMEDABAD
Invocation of extended period - The issue involved is as to whether the commission received by the appellant from the air-lines for providing of services as air cargo agent would attract the service tax under the category of Business Auxiliary Services. Apart from contesting the demand on merit, the learned advocate has also assailed the impugned order on the point of limitation. – No suppression, mis-statement of facts with an intent to evade duty or any fraud, collusion etc. is being attributed to the appellant by the Commissioner (Appeals). Having accepted that there was a lack of clarity and doubt about the appellant’s liability to pay service tax, we are, prima facie, of the view that the benefit of extended period is required to be extended to the appellant, in which case, the demand would be barred by limitation.- stay granted
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2009 (8) TMI 155 - CESTAT, NEW DELHI
Applicant availed Cenvat credit on input service on the basis of invoices were raised in favour of the applicant’s Head Office situated at Kolkata, whereas the manufacturing Unit is located in Madhya Pradesh. The inputs service credit was taken on Telephone/Mobile charges, insurances charges, Courier Service, Freight Charges and Security Services charges. Prima facie it appears that the input services are related to business activities and credit is admissible - Stay application is allowed.
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2009 (8) TMI 150 - KARNATAKA HIGH COURT
Refund of deposits - In impugned order it was held that the petitioner was not liable to pay service tax in respect of the civil structures constructed for and on behalf of M/s. Adichunchanagiri Shikshana Trust put to use for education, religious, charitable, health, sanitation and philanthropic purpose, and not for the purpose of profit, in the light of the clarification issued by the Board vide Circular No. 80/10/2004 dated 17-9-2004 - The amounts made over by the petitioner to the revenue, treated as a deposit at the hands of the Government - the question is whether Section 11-B of the Act is attracted to effect refund - Section 11B provides for making a claim to refund duty. Admittedly, the sums deposited by the petitioner is held to be a deposit and not as a duty, therefore, there was no necessity for the petitioner to have made a claim invoking Section 11B of the Act for refund - claim for refund is sustainable
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2009 (8) TMI 97 - CESTAT, NEW DELHI
Modification of order - Once the order passed by this Tribunal had been subject matter of a judicial review before the Delhi High Court, and High Court having refused to interfere therein by passing a speaking order, question of Tribunal reviewing or modifying its order does not arise at all. Being so, and since the records nowhere disclose any such review or modification of the order dated 22-5-09, it is difficult to accept the contention on behalf of the appellant that on 27-7-09 there was direction by the Tribunal to deposit Rs. 20 lakhs inspite of direction given for deposit of Rs. 2 crores under order dated 22-5-09
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2009 (8) TMI 95 - SC ORDER
Review petition against order dated 23-1-2008 (2009 TMI - 35042 - SUPREME COURT OF INDIA) dismissing the appeal of revenue (against order of tribunal 2008 -TMI - 30059 - CESTAT-LB) rejected - taxable service provided by a non-resident or from outside India, having been specified as ‘taxable service’ only w.e.f. 1.1.2005, under Not. 36/04, recipient of such service could not be held liable for paying service tax prior to 1.1.05, notwithstanding the amendment in Rule 2 (1)(d) under Not. 12/02
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2009 (8) TMI 92 - CESTAT AHMEDABAD
Service Tax Liability – presentation in the balance sheet and in the st 3 return – dredging service - demand for service tax of Rs. 17,85,101/- has been confirmed on the ground that in their balance sheet they had shown the amount for rendering services as receipts but they have failed to pay service tax on the said amount – held that – assessee contended that contrary to the observations of the Commissioner (Appeals), the practice followed is not adjustment of dues against each other but two are paid/received separately - Whatever is due from the appellants to M/s. Gujarat Adani Port Limited is paid and whatever is receivable is also received separately and no payments are made. He points out that on 07.4.2006 they had paid Rs. 1.40 Crores to M/s. Gujarat Adani Port Limited towards outstanding and payable by them to Gujarat Adani Port Limited ande on 09.4.2006 they had received Rs. 3.05 Crores towards services rendered by them. However, in the balance sheet both amounts are treated separately but for calculation of liability net amount is taken – matter remanded.
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