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Service Tax - Case Laws
Showing 121 to 140 of 346 Records
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2018 (9) TMI 1367 - CESTAT MUMBAI
Penalty u/s 77 and 78 of FA - service tax with interest paid before issuance of SCN - invocation of sub-section (3) of Section 73 of the Act for non-issuance of SCN with respect to penalties - Held that:- The authorities below have not specifically made the issue regarding involvement of the appellant in the activities of fraud, suppression etc, with intention to defraud the Government revenue - the benefit of Section (3) of Section 73 of the Act should be extendable to the appellant for closure of subsequent proceedings, upon payment of service tax along with interest.
Since the department initiated show cause proceedings only for appropriating the amount already paid by the appellant and for imposition of penalties, such action on the part of the authorities below cannot be sustained for judicial scrutiny.
Penalties set aside - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1366 - CESTAT MUMBAI
Construction of Residential Complex Service - non-payment of service tax - Penalty - Held that:- The learned Commissioner (Appeals) has recorded the fact regarding payment of service tax amount along with interest by the respondent. Thus, he should have considered the aspect only with regard to imposition of penalty. However, in the order portion, the learned Commissioner (Appeals) has set aside the whole adjudication order and has also granted consequential relief to the respondent.
Further, the learned Commissioner (Appeals) has not specifically recorded any findings with regard to invocation of the provision of Section 78 for imposition of penalty under the facts and circumstances of the case - thus, the matter should go back to the learned Commissioner (Appeals) for passing a reasoned and speaking order considering the aspect whether the penalty can be imposed on the appellant on the circumstances of the case - appeal allowed by way of remand.
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2018 (9) TMI 1365 - CESTAT ALLAHABAD
CENVAT Credit - appellant had not paid the value of the services to the service providers - contravention of Rule 4(7) of Cenvat Credit Rules, 2004 - Revenue’s sole ground is that instead of taking the credit during the period involved in the appeal, the same was available to the assessee subsequently i.e. after making payments for the services.
Held that:- It is seen that during intervening period the credit availed remained as a paper entry only and was not utilized by the assessee. Though in such a case even the interest was not required to be paid in terms of the Hon’ble Karnataka High Court decision in the case of Bill Forge Pvt. Ltd. vs. CCE & ST, LTU, Bangalore [2011 (4) TMI 969 - KARNATAKA HIGH COURT].
Wrong availment of ₹ 1.28 lakhs - Held that:- There could be a bona fide belief on the part of the assessee that inasmuch as the services stand availed by their sister concern only, they were in a position to avail the credit.
While confirming the demand along with confirmation of interest, the penalty of ₹ 56,74,746/- imposed upon the appellant is set aside.
Appeal allowed in part.
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2018 (9) TMI 1364 - CESTAT ALLAHABAD
Classification of Services - whether the services would fall under Commercial & Industrial Construction Service or under Works Contract Services? - Held that:- The Tribunal in the case of Gambhir Construction Company [2017 (6) TMI 1107 - CESTAT ALLAHABAD] has observed that inasmuch as in the show cause notice, there was no proposal to confirm the demand under the category of “Works Contract” for the period 01/06/2007 onwards, the demand cannot be confirmed under the said category - demand set aside.
Demand for the period prior to 01/06/2007 under Commercial & Industrial Construction Service - Held that:- Hon’ble Supreme Court decision in the case of CCE & Customs, Kerala vs. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], laying down that prior to 01/06/2007, the services cannot be held to be taxable under the category of ‘Commercial & Industrial Construction Service’ - demand set aside.
Appeals disposed off.
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2018 (9) TMI 1363 - CESTAT ALLAHABAD
Penalty u/s 76 - Bonafide intent - Abatement in terms of N/N. 32/2004 dated 03.12.2004 - GTA Services - Reverse Charge Mechanism - Held that:- The demand on service tax is liable to be paid by them on reverse charge basis, as recipient of GTA Services. Inasmuch as, the appellant was not service provider, there could be a bonafide intention in his mind, as regards his liability to pay service tax - also, the disputed issue was subject matter of litigation before various authorities and was ultimately settled - penalty not justified and is set aside - appeal allowed.
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2018 (9) TMI 1362 - CESTAT ALLAHABAD
Adjustment of sanctioned rebate against alleged interest - un-adjudicated and un-confirmed Interest - Held that:- There is no dispute on the factual position that the Original Adjudicating Authority sanctioned the rebate claim but adjusted it against the alleged liability towards interest. It is also a fact that there was no interest proceeding initiated against the assessee. In such a scenario, the adjustment of rebate claim against un-adjudicated and unconfirmed interest is not adjustable - Karnataka High Court’s decision in the case of Commissioner of Central Excise, Bangalore-III Vs Stella Rubber Works [2011 (3) TMI 571 - KARNATAKA HIGH COURT] vide which in an identical situation, the Hon’ble High Court held that adjustment of sanctioned rebate claims against the non adjudged interest amount is not permissible.
Appeal dismissed - decided against Revenue.
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2018 (9) TMI 1282 - TELANGANA AND ANDHRA PRADESH HIGH COURT
Renting of immovable property - Before the tribunal, Municipalities accepted the tax liability - Whether the Tribunal is right in dismissing the appeal even though the retrospective amendment with regard to the payment of service tax is pending before the Hon’ble Apex Court?
Whether the Tribunal is right in dismissing the appeal without considering the legal aspect that the retrospective amendment with effect from previous date could only create a tax liability but not the liability to pay interests and penalties retrospectively?
Whether the Tribunal is right in dismissing the appeal without discussing the aspect of limitation for the demand notice?
Held that:- Prima facie, the aforestated questions of law go against the tone and tenor of the order under appeal which records, in no uncertain terms, that the appellant Municipality conceded that it was liable to pay the service tax along with interest thereon and also sought time to do so - there is no question of law, much less a substantial one, arising for consideration in this appeal - appeal dismissed.
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2018 (9) TMI 1281 - CESTAT MUMBAI
Scope of remand order - Whether the order-in-original while confirming the demand raised by the first three show-cause notices have travelled beyond the scope of remand order or Commissioner was right in confirming the said demand as has been done by him? - Held that:- Only after going through all these documents, correct service tax determination was to be done and matter was remanded for taking into account of documentary evidences which would submit in support of their claim of having discharged of service tax liability. - While passing the order, Commissioner has done the same. He has considered looking into agreements and has concluded what he deemed fit in respect of leviability of service tax. The remand order does not conclude anything in respect of the nature of the software supplied or to say that these could not have been leviable to service tax. Accordingly, the order of Commissioner cannot be faulted on this count.
Supply of services or not? - third party software - taxable under the head ‘Information Technology Software services’ or not? - Held that:- It is settled law that software is nothing but an Intellectual Property of a person who has developed the said software. The right to use the software is something what gets transferred and not software has per se. Even if it is provided on a media such as CD or Hard Drive. Software cannot be altering, modified or reproduced by the user of the said software. He can only use the same for the purposes authorized by the rightful owner and in the manner authorized and this is further supported by the fact that in each case the recipient enters into an End User License Agreement (EULA) which is binding in nature before he can make use of the said software - The approach of commissioner while dealing with the issues is in accordance with the international practices of treatment of the software related transactions. Thus the order of the Commissioner holding that these services are classifiable under the category of ‘Information Technology Software Services’ after 16.05.2008 and prior to that under the category of ‘Intellectual Proper Services’ cannot be faulted with.
Valuation - inclusion of value of hardware provided in terms of Section 67 of the Finance Act, 1994 in assessable value - Held that:- The value of goods used for provision of the taxable service cannot be excluded from the gross amount charged as consideration for the services provided just for the reason that sales tax / VAT has been paid on such goods and value of goods is shown separately. However when the goods are sold as part of provision of service and are shown separately then will the abatement in respect of the same shall be admissible or not needs to be considered. Notification No 12/2003-ST provided for such abatement - While concluding that with regards to the hardware when commissioner has upheld that they are the part of taxable service and their value should be included in the value of taxable services provided, Commissioner needs to consider the argument in respect of the abatement of the value if admissible under rules or notification applicable at the relevant time.
Demand under the category of Intellectual Property Services for period prior to 16.05.2008 and under the category Information Technology Services from 16.05.2008 - the party had submitted that the demand cannot be made ahead which is not proposed in the show-cause notice - Held that:- It is settled principle in law to proceed against any person, the basic requirement is that he should be put to sufficient notice about his contravention and allowed to make proper defense. Since the first show cause notice dated 19.10.2009 has been issued demanding service tax under the category of “Management, Maintenance & Repair Service”, the confirmation of demand under any other category, namely “Intellectual Property Right Services” for the period prior to 16.05.2008 cannot be justified and the order to that extent is definitely not maintainable - In the present case in three show-cause notices in respect of the same issue were proposed under Information Technology Software services and the party was having sufficient notice to answer the same under the said head in respect of the 1st show-cause notice dated 19.10.2009. When there is opportunity available to the extent, their stand in respect of a particular heading the order of Commissioner cannot be faulted with on that account - when sufficient notice has been given, it cannot be said that adjudicating authority has travelled beyond the scope of show cause notice while upholding the demand under the said head at least from 16.05.2008.
Time Limitation - Noticee have contended that the notice dated 19th October 2009 is barred by limitation as they were under bonafide belief that the amount received by them under these Acts were not leviable to service tax - Held that:- The said argument with regards to bonafide belief cannot be allowed. During the entire period, noticee was aware about leviability of service tax on the said products and in case they had any doubt they could have sought clarification from the concerned authorities - Without seeking such clarification and on his own deciding not to pay the tax cannot be a bonafide reason - time limitation rightly invoked.
Demand of Interest - Held that:- As the demand of taxes is liable to be confirmed for the period after 16.05.2008 appellant are required to pay the interest also. It is settled law that interest liability flow from the liability to pay tax if not paid in time.
Penalty - Held that:- In the present case the penalty imposed are mandatory penalties provided in law, they are to be held as civil liability accordingly. Reliance on Section 80 would be of no help in this case - however Commissioner should reconsider the issue of penalty afresh and determine whether the same can be imposed under section 78.
Appeal allowed by way of remand.
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2018 (9) TMI 1280 - CESTAT BANGALORE
Refund of Service tax paid - time limitation - Section 11B of the Central Excise Act, 1944 - refund claims rejected on the ground that the refund claims were not filed within the time limit of one year and the claimant has not fulfilled the conditions as prescribed at para 3(III)(e) of N/N. 12/2013-St dt. 01/07/2013 - Principles of Natural Justice.
Held that:- In the present case, the Commissioner(Appeals) while rejecting the refund claims of the appellant has violated the principles of natural justice and has not afforded opportunity of hearing to the appellant to explain the justifiable reasons for filing refund claims after the periods specified in the notification - Further, the Commissioner(Appeals) has totally ignored the Notification No.12/2013 under which the appellant has filed the refund claims rather the Commissioner(Appeals) has wrongly considered the refund claims of the appellant under Rule 5 of the CENVAT Credit Rules read with Notification No.5/2006-CE(NT) dt. 14/03/2006 which was not the case of the appellant at all.
Matter remanded back to the original authority to decide the claims of refund of the appellant within a period of three months from the date of receipt of certified copy of this order - appeal allowed by way of remand.
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2018 (9) TMI 1279 - CESTAT ALLAHABAD
Supply of Tangible Goods - lease of railway wagons to the railways - Held that:- Tribunal in the case of Petronet LNG Ltd. vs. Commissioner of Service Tax, New Delhi [2013 (11) TMI 1011 - CESTAT NEW DELHI] has considered an identical situation and held that inasmuch as the lease agreement for supply of tangible goods was one time event which acted prior to introduction of this taxable service w.e.f. 16.05.2008, no liability to pay service tax would arise against the assessee.
Admittedly in the present case, the agreements entered into by the appellant with the Railways are upto the year 2000 i.e., much prior to 16.05.2008. The ratio of the above decision of Tribunal is fully applicable to the facts of the present case.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1278 - CESTAT ALLAHABAD
Penalty - Business Auxiliary Service - commission/incentives received from institutions in respect of loans given to the buyers of the motor vehicles - Held that:- The Tribunal in the case of Roshan Motors Ltd. v. Commissioner of Central Excise, Meerut [2008 (11) TMI 55 - CESTAT, NEW DELHI], while upholding the demand on identical activities has set aside the penalties imposed upon the assessee by observing that the issue was a bona fide issue of interpretation of question of law and no suppression or misstatement or mala fide can be attributed to the assessee - Penalty set aside.
Demand of ₹ 1,29,460/- confirmed against the appellant by comparing the ST-3 figures with the figures available in the balance sheet - Held that:- It is well settled that such comparison of ST-3 figures with balance sheets figures cannot lead to confirmation of any demand of duty in the absence of any evidence to establish that such income, as reflected in the balance sheet was on account of the services rendered by the assessee - there is no justification for the demand.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1277 - CESTAT ALLAHABAD
Penalty u/s 78 of FA - non-payment of Service Tax - the fact came to the notice of the Revenue by comparing the ST-3 Returns figures with the entries made in profit and loss account as also in balance sheet - Held that:- There is no evidence on record to reflect upon any mala fide of the assessee so as to invoke the penal provisions against them. Further the appellant is a public sector undertakings of Government of India and as such cannot have any mala fide intent to evade payment of duty - penalty not warranted - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1276 - CESTAT ALLAHABAD
Short paymnet of Service Tax - appellant was collecting Service Tax from their clients on gross value of the services whereas less Service Tax was being paid by them on the reduced assessable value - demand of differential amount alongwith interest and penalty.
Held that:- The appellants have not disputed the fact that they have collected extra Service Tax from their clients. As such the same is required to be paid by the assessee and accordingly the demand along with interest confirmed.
Penalty - Held that:- There can be a bona fide belief on the part of the assessee that the tax is required to be paid only on the assessable value of the services and in the absence of any evidence to reflect any mala fide on them, penalty set aside.
Appeal allowed in part.
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2018 (9) TMI 1275 - CESTAT ALLAHABAD
Valuation - includibility - inclusion of value of the goods used in providing the said services in assessable value - Held that:- The issue is no more res-integra and stands settled by the Hon’ble Allahabad High Court in the case of Commissioner of Customs And Central Excice V/s J.P. Transformers [2014 (9) TMI 307 - ALLAHABAD HIGH COURT], where it was held that the value of the goods used in providing repair of Transformers are not to form part of the value of the services so provided by assessee - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1274 - CESTAT ALLAHABAD
GTA Service - reverse charge mechanism - transportation of biscuits - Held that:- The payments were made to individual labourers and there was no issue of any consignment note in whatever form - the said transaction is not covered by GTA Service - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1273 - CESTAT ALLAHABAD
Business Auxiliary Services - activity of computerization of Excise and Taxation Technical Service Agency, the authority of Punjab Government - period from 2010-11 to 2011-12 - Held that:- The issue has been examined by this Tribunal in their own case for the earlier period in TATA CONSULTANCY SERVICES LIMITED VERSUS C.S.T. -DELHI [2018 (6) TMI 1013 - CESTAT NEW DELHI], where it was held that appellant is not liable to pay service tax on the amount received from Punjab Government for renovation of Technical Programme given by them for Excise and Taxation Technical Service Agency.
The services provided by the appellants do not qualify as ‘Business Auxiliary Services’, therefore, the demands against the appellants are set aside - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1272 - CESTAT ALLAHABAD
Commercial or Industrial Construction Services - construction of Toll Plaza - period October, 2007 to October, 2009 - Extended period of limitation - Held that:- The issue of construction of Toll Plaza is a taxable service or not came before this Tribunal in the case of Jagdish Prasad Agarwal vs. CCE, Jaipur-I [2017 (5) TMI 702 - CESTAT NEW DELHI], where it was held that Commercial or Industrial Construction service provided in respect of roads are specifically excluded from the purview of levy of service tax in terms of clause (25b) of Section 65 ibid.
Demand of service tax under the construction of Toll Plaza and Lanes under the category of ‘Commercial or Industrial Construction Services’ is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1271 - CESTAT ALLAHABAD
Issuance of second SCN on same set of facts by invoking Extended period of limitation - validity of the second SCN - Held that:- On the same set of facts the show cause notice dated 21.10.2010 was issued invoking proviso for extended period - Reliance placed in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT OF INDIA], where it was held that When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. Thus there was no suppression of facts on the part of the assessee/appellant, and SCN would not be valid.
Second SCN not valid - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1270 - CESTAT ALLAHABAD
Levy of Service tax - remittance to suppliers to outside India - whether the appellant, who have imported goods and remitted amount to its suppliers outside India, whether they can be liable for payment of service tax on such remittances?
Held that:- There is no finding and/or averment by the Commissioner that they have received any service from outside India, on which service tax is chargeable - the impugned order is cryptic and vague, as without there being any finding of receipt of service from outside India service tax have been demanded - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1216 - GUJARAT HIGH COURT
Condonation of delay of 304 days in filing appeal - Case of the appellant is that the order which was challenged by the Tribunal was one of remand - Held that:- The appellant was obviously therefore, not being aggrieved by such order so as to challenge it. However, later on it was realised that such remand was not openended, giving rise to the challenge by the appellant - Tribunal is requested to hear the appeal on merits.
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