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Service Tax - Case Laws
Showing 261 to 280 of 346 Records
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2018 (9) TMI 502 - CESTAT NEW DELHI
Rectification of Order - Manpower recruitment or supply agency Services - Held that:- From the record, it is observed that the grounds of appeal as raised before the Commissioner (Appeals) included all other grounds of defence as were taken by the appellant before the original adjudicating authority. The silence of the Commissioner qua all remaining grounds mentioned therein makes it clear that the order of Commissioner (Appeals) is a non-speaking order as far as the merits of the appeal are concerned - Further perusal of record shows that the appellant himself has provided a chart with breakup of such different services, as alleged by the Department of being provided by him.
It is a fit case to be remanded back to Commissioner (Appeals) to be re-decided qua all the issues of the appeal - appeal allowed by way of remand.
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2018 (9) TMI 501 - CESTAT NEW DELHI
Works Contract services - Department alleged short / non payment of Service Tax resulting in Show Cause Notice dated 9.9.2011 which raised a demand for ₹ 49,12,051/- along with interest at appropriate rate and proportionate penalty - Composition Scheme - Held that:- It is admitted fact that option is filed prior to making payment which is only the mandate of Composition scheme under Rule 3(3) of 2007 Rules thereof - The sole plea of the department that option has not been exercised, is therefore found not tenable.
Benefit of cum tax - Held that:- The Commissioner (Appeals) while confirming the penalty has considered the plea of the department about the delayed payment amounting to suppression.
Appeal dismissed.
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2018 (9) TMI 500 - CESTAT NEW DELHI
Valuation - appellant had received certain amounts towards electricity and water charges since 2008-2009 and on which no service tax has been paid - Rule 5(2) of Service Tax (Determination of Value) Rules - Held that:- It is a matter of record that appellants have been charging 20% of sales proceeds from "Shan-e-Bhopal Restaurant" as a commission for providing support service to business in the form of providing space for the restaurant and other infrastructure support which included the premises for housing restaurant, man power, security service, etc. It is also a matter of fact that electricity and water charges have also been recovered by the appellant from the restaurant owner on actual basis and same has been deposited with the respective authorities providing electricity and water to the said premises - appropriate Service tax is payable on 20% commission charged by the appellant from ‘Shan-e-Bhopal restaurant’ for providing the premises and other infrastructure facilities.
Whether the electricity and water charges recovered by the appellant will form part of the value of the service as per the provisions of Finance Act, 1994 or not? - Held that:- It can be seen that electricity and water services are being provided by other Government agencies and the charges for use of the said facilities is being raised on the service provider i.e. the appellant on actual basis which the appellant is collecting from the Shan-e-Bhopal Restaurant' and same is deposited with the authorities providing electricity and water. In view of these facts, it can be concluded that the appellant is purely working as an agent in collecting the charges with regard to supply of water and electricity and deposited the same with authorities concerned - appellant has behaved purely as and agent and the charges of electricity and water cannot be included in the taxable value of the services, namely support service of business provided by the appellant - the charges collected by them towards electricity and water, are not to be included in the taxable value for charging service tax.
Appeal allowed.
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2018 (9) TMI 499 - CESTAT NEW DELHI
Refund of unutilized CENVAT Credit - most of the output services were being exported by the appellant/ assessee - input services - insurance premiums - Time Limitation - Held that:- The issue of availment of input service credit on the service tax paid by them on the insurance premiums on group insurance policy for their employees including the Directors is already covered by this Tribunal’s order in their own case M/S EXL SERVICE. COM (INDIA) PVT. LIMITED VERSUS CCE & ST, LTU [2017 (5) TMI 1461 - CESTAT NEW DELHI], where it was held that the appellants are rightly eligible to take credit of service tax paid on insurance premium on Group Insurance Policy, as the said service is an eligible input service - refund allowed.
Time Limitation - Held that:- Demand is hit by period of limitation as the department has always been aware about the practice being followed by the appellant/assessee - there are no valid reasons for invoking the extended time proviso under Section 73 of the Finance Act, 1994 - demand is also barred by period of limitation.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 498 - CESTAT NEW DELHI
Classification of services - appellant is engaged in providing services in the mining area - Department has alleged that the appellants are providing services of cargo handling but have not discharged their service tax liability - Held that:- The appellant was providing the services of loading and unloading of material. Apparently and admittedly these services were being provided in the mining area and the mining services has been brought under the service tax act with effect from 1.6.2007 - the appellant is providing services which are taxable in nature. Apparently and admittedly, appellant has not discharged any kind of tax liability.
The matter needs to be considered by the adjudicating authority below for deciding the proper classification of the activity of the appellant - appeal allowed by way of remand.
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2018 (9) TMI 497 - CESTAT NEW DELHI
GTA Services - It has been the contention of the department that the appellant-assessee has not included the value of loading /unloading, and stacking charges in the service value of GTA service - CBEC circular No. 104/2007-2008 ST dated 6.8.2008 - short payment of tax - time limitation.
Held that:- The provisions of Circular No. 104/07/2008-ST dated 6.8.08 are relevant only in cases where the consolidated value of transportation charges is being recovered from the service recipient by the service provider. And the clarification is primarily with regard to whether abatement will be entitled on the full value of such charges i.e. transportation charges plus cargo handling, loading, / unloading, stacking /destacking charges etc. are also included. In this particular case, the contracts for transportation of fertilizers cargo filed by the appellant assessee, with regard to various transport contractor are very categorically having two parts, first, which is primarily for transportation of fertilizers; and second is for loading / unloading and stacking/ de-stacking of fertilizers and separate charges for each activity are indicated.
Since the value of both the services have categorically been provided separately, the appellant assessee has discharged his service tax liability under reverse charge mechanism of transportation charges as is the requirement of Service tax law, we do not find any legally tenable ground to demand service tax on the cargo handling charges on which service tax as per the provisions of service tax law is to be discharged by the service provider i.e. various transport contractors - Since in the present case, the value has been indicated separately and there is no charge of the department that the service provider of the cargo handling service like loading /unloading stacking /destacking of fertilizer consignment has not discharged their service tax liability. It is seen that the department has not even tried to prove that there is short payment of service tax. We also find that since there is no charge of non-payment of service tax by the contractors of cargo handling services like loading / unloading etc. in that case they must have paid service tax on the full value of service and if same is added to the transportation charges, the appellant-assessee will be entitled for prescribed abatement and as a result the Department would get less amount of service tax - there is no merit in confirming short payment service tax.
Time Limitation - Held that:- Since the appellant assessee is being audited regularly by the Department and all the details have been in the knowledge of the department and the charge of suppression of facts or mis declaration etc. have not been established by the department., Therefore the demand of duty under section 73 (1) under extended time proviso is not sustainable on the ground of limitation in this case - demand is also barred by limitation.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 395 - MADRAS HIGH COURT
De-freezing of Bank Account - bank account was freezed on the reason that the petitioner has failed to pay the service tax, in pursuant to a demand resulting out of the said order passed on 05.03.2018 - educational services.
Held that:- It is seen that the petitioner suffered an order in original dated 05.03.2018 passed by the first respondent imposing service tax as well as penalty. It is not in dispute that as against the said order, the petitioner has right of appeal before the CESTAT. It is also not in dispute that such appeal can be filed only by making pre-deposit of the statutory liability, as contemplated under the relevant provision of law, while filing such appeal. Since it is stated that freezing of the subject matter bank account has totally paralysed the petitioner's day to day activities, this Court is of the view that the respondents 1 and 2 shall have to permit the petitioner to operate the bank account initially, atleast for the purpose of effecting the pre-deposit, while filing the statutory appeal before the CESTAT - to that extent, the petitioner is entitled to operate the said account so that his right of filing of appeal before the CESTAT is not defeated for want of making pre-deposit.
Petition disposed off.
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2018 (9) TMI 394 - CESTAT AHMEDABAD
Refund of service tax - refund claimed for the duty on difference value estimated in the month of March 2011/ finalized in the month of November 2011 and the revised value in the month of March 2011 - Held that:- While the appellant have claimed that they raised the invoice of ₹ 16,91,000,00/-, the entry shown by them added up to 16,78,65,570/-. We also observed that if three entries i.e. 85,570,740/- separate ₹ 82,294,830/- and ₹ 117,535,680/- are added then the total comes to 285,401,250/-. The appellant had claimed that the provisional figure appearing in the balance sheet was ₹ 28,49,43,332 /-. Enough evidence has not been produced to show that the appellant had indeed received much lesser amount then that recorded in their balance sheet.
It is also not clear if the price was earlier fixed at ₹ 28,49,43,332/- and latter re-negotiated at ₹ 16,91,000,00/- or if the price was never fixed and for the first time it was negotiated at ₹ 16,91,000,00/- - thus, it is not clear that if appellant had received an amount less then what was recorded in the balance sheet for the year 2010-11. If the transaction was complete by way of book entry in the record of book of appellant and M/s Vodafone India Ltd at the time of finalization of the balance sheet of the year 2010-11.
The factual position needs to be ascertained if the 1. Service was completed in the year 2010-11 or it continued in 2011-12 as it appear from the ledger; 2. If the Vodafone India Ltd had recorded in their balance sheet the value corresponding to the value recorded in the balance sheet of appellant completing the transaction; and 3. The four payments entries made in the appellant’s ledger of Vodafone India Ltd relate to which periods.
Appeal allowed by way of remand.
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2018 (9) TMI 393 - CESTAT BANGALORE
Jurisdiction of Commissioner - Commissioner under his revisionary power has issued SCN, imposing penalty, by invoking extended period of limitation - Penalty u/s 76, 77 and 78 of FA - payment of service tax with Interest was made on being pointed out - no intent to evade - Held that:- This issue was considered by the Hon’ble High Court of Karnataka in the case of Motor World [2012 (6) TMI 69 - KARNATAKA HIGH COURT] wherein the Hon’ble High Court after considering the scope of revision power of the Commissioner to impose penalty which was dropped by the original authority in exercise of his discretion under Section 80 has finally held that Revisional authority had no jurisdiction to interfere with the said orders as the authority held that there was sufficient cause for non-payment of duty. Therefore, the order passed by the revisionary authority is erroneous and calls for interference.
Tribunal in the case of S-Mac Security Services Pvt. Ltd. Vs. CST, Bangalore [2016 (8) TMI 15 - CESTAT BANGALORE], after noting the fact that the service tax along with interest has been voluntarily paid by the appellant before issuance of show-cause notice, has set aside the penalty imposed by Revisionary Authority under Sections 76 to 78.
Imposing penalty by exercising revisionary power is not sustainable in law - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 392 - CESTAT AHMEDABAD
CENVAT Credit availed by mistake - revised return filed on being pointed out, rectifying the mistake - appellant also paid the entire amount of differential duty in January 2007 along with interest - Rule 7B of the Service Tax Rule, 1994 - Held that:- No CENVAT Credit was availed in the month of October 2006, November 2006, December 2006, February 2007 and March 2007.
Rule 7B of the Service Tax Rule, 1994 is designed to take care of such contingencies, the fact that the appellant were not availing Cenvat Credit is clear from the fact that no credit was availed in five month out of six covered in the Service Tax return - Since, appellant have filed revised return on 08.05.2007 that is within the period described under Rule 7B, it supersedes the original return filed by them. In these circumstances, no Cognizance needs to be taken of the first return filed by the appellant wherein, the Cenvat Credit was availed and utilised - appeal of M/s. Amardeep Construction is allowed.
Penalty u/s 78 of FA - Held that:- Since, demand and duty does not survive, the imposition of penalty cannot also survive - penalty set aside.
Appeal allowed - decided in favor of assessee.
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2018 (9) TMI 391 - CESTAT AHMEDABAD
Place of supply of services - Services of promotion of their products availed by an agent outside India - Reverse charge mechanism - Section 66A of FA - Suppression of facts or not? - Extended period of limitation - Held that:- In the instant case, the period of dispute is 18.04.2006 to 30.09.2007. In the identical circumstances, in the case of Tech Mahindra Limited vs. CCE, Pune [2015 (2) TMI 392 - CESTAT MUMBAI] it has held that failure to disclose the services in the ST-3 return is insufficient to invoke the extended period of limitation - So long as the recipient of service is located in India, the said service would be taxable as the service received in India.
In the instant case, while the service provider located abroad, he has been procuring orders for the appellant located in India. The service falls under clause (iii) of Rule 3 of Taxation of Services (Provided from outside Indian and received in India) Rules, 2006 - Thus, the demand of duty is sustainable both, on merits as well as limitation.
Penalties u/s 76 and 78 of FA - Held that:- Simultaneous penalties under Section 76 and 78 cannot be imposed. Consequently, the penalty under Section 76 is set-aside and the penalty under Section 78 is upheld - the benefit to avail 25% is extended to the appellant subject to payment of entire tax along with interest and 25% of penalty within one month of the date of receipt of the order.
Decided against appellant-assessee.
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2018 (9) TMI 390 - CESTAT CHENNAI
Service tax collected but not paid - Business Auxiliary Service - process of mechanical treatment of Oily Sludge - whether the said service amounts to manufacture or is classified as Business Auxiliary Service? - Held that:- The appellants have put forth various arguments to support their stand including that the value of taxable service worked out in the SCN namely ₹ 15,76,81,173/- is wrong and that the correct figure should be ₹ 12,30,97,874/-. They have also now sought benefit of Notification No.8/2005-ST. In the event, on the quantum of tax liability, the interests of justice would be best served by remanding the matter to the adjudicating authority for de novo consideration - matter on remand.
Penalty - Held that:- The elements of suppression, fraud etc. cannot be alleged against the appellant and hence imposition of penalties under Section 78 as well as Section 77 is unjustified - penalty set aside.
Appeal allowed in part and part matter on remand.
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2018 (9) TMI 389 - CESTAT MUMBAI
Valuation - Exclusion of value of material - value of goods/ material sold while providing the said taxable services has not been shown separately on the invoices. - Benefit of N/N. 12/2003-ST - Management, Maintenance or Repair Service
Held that:- The respondents substantially comply with requirements of the N/N. 12/2003-ST and benefit of the said Notification cannot be denied while computing the value for payment of Service Tax on the taxable services provided by them.
Though Commissioner (Appeal) has in his order observed that “value of materials deemed to be sold during the execution of the contract can be calculated to be 67% of the gross value on which VAT has been paid”. The correctness of same needs to be verified from the documents and actual value of material sold during the provisioning of such services needs to be worked and demand of service tax worked out accordingly - thus, it is apparent that demand of Service Tax payable needs to be worked out and the payments already made against the provisions of these services be adjusted the against the demand so worked out. If any amount remains unpaid after such adjustment the same needs to be recovered from the respondents.
Appeal dismissed - decided against Revenue.
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2018 (9) TMI 388 - CESTAT CHANDIGARH
Refund Claim - whether the appellant have locus standi to file refund claim or not? - service tax deducted and deposited by the Housing Board on behalf of the appellant (service provider) - Held that:- This issue is already settled by the judgment of the Hon’ble Supreme Court in the case of Oswal Chemicals & Fertilizers Ltd. [2015 (4) TMI 352 - SUPREME COURT], where it was held that the appellant who had paid the excise duty to the manufacturer, viz., M/s. Indian Oil Corporation Ltd. and BPCL in the instant case, had the necessary locus standi to file the application claiming the refund of the duty - It was further held in the case that Explanation (B) defines “relevant date”. Though this date has reference to the calculation of limitation period for the purposes of seeking refund of the duty under the aforesaid provision. However, clause (e) while stating the “relevant date” clarifies that in case of a person, other than the manufacturer, the date of purchase of goods by other person would be the relevant date. This itself indicates that the person can be other than the manufacturer and Explanation (B) caters to such other person.
Thus, the appellant have locus standi to file refund claim in this case.
Disclaimer certificate - Held that:- The appellant have placed on record disclaimer certificate dt.30.1.2018 from the Housing Board Haryana in respect of their claim. The order of the Commissioner (Appeals) in the present case is dated 31.1.2018 - Admittedly, the disclaimer certificate was not produced before the Commissioner (Appeals) when the impugned order was passed. It would therefore be appropriate to set aside the impugned order and remand the matter to the first appellate authority so that he can examine the issue afresh by taking into account the disclaimer certificate dt.30.1.2018.
The matter is remanded back to the Commissioner (Appeals) with the direction to consider the disclaimer certificate dt.30.1.2018 issued in favor of the appellant issued by the Housing Board Haryana and to pass a fresh order in accordance with law - appeal allowed by way of remand.
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2018 (9) TMI 387 - CESTAT CHENNAI
Manpower recruitment and supply service - engaging labourers for harvesting sugarcane - Contention of the department is that the charges towards supply of cane harvesting labourers are recovered from the farmers at the rate accepted by the farmers and therefore the said activity would be covered within the definition of manpower recruitment or supply agency service - Held that:- It is explained by the appellant that there is no employer and employee relationship between the cutting labourers and the appellant. The appellant company has no say in the rate for cutting demanded by the labourers and the labourers have got every right to deny to cut for a particular sugarcane grower. The mill simply manufactures the sugar with regard to the availability of the cutting labourers only. Being a Government undertaking, it can be seen that all appointments are to be made in the muster roll of the sugar mill - it cannot be said that the appellants have provided harvesting labourers to the sugarcane growers for harvesting the sugarcane.
Tribunal on identical set of facts had considered the issue and held that the sugarcane growers themselves are encouraging the harvesting labourers and as a mere facilitation, the amount to be paid to these harvesters are deducted from the price of the sugarcane that is to be paid to the farmers.
Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 386 - CESTAT BANGALORE
Condonation of delay in filing appeal - service of order - it is contended that the impugned order was sent to appellant’s factory address instead of registered address - Held that:- Apparently the delay is inordinate and it is therefore the responsibility of the appellant to explain the delay in a convincing manner without giving any room for suspension as to negligence or nonchalant manner - it is found that the contention that the assessee had responded to statutory notices;had also appeared before the lower appellate authority in response to hearing notices,to be correct which facts are not rebutted by the learned advocate appearing for the assessee.
Even though the explanation as offered in the application for condonation of delay is very sketchy but in the substantial interest of justice and going by the plea of the appellant that the issue involved on merits is no more res integra, the delay is condoned subject to the condition of imposing a cost of ₹ 10,000/-, since the explanation or the reasons given is not foolproof.
COD Application allowed.
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2018 (9) TMI 385 - CESTAT ALLAHABAD
Classification of Service - Security service or not? - appellants are engaged in providing security services to the bank as well as cash van to the bank for carrying the cash from one place to another - Short payment of Service Tax - Held that:- The appellants are providing security service under a separate contract and also providing cash van to the banks for transporting the cash from one place to another place. Admittedly, the cash vans are having the security guards but the dominant service is to provide cash van for transportation of cash from one place to another. Admittedly, in this case, the main service provided by the appellant is cash van service.
Whether Cash Van service shall do qualify as “Security Service” or “Supply of Cash Van Service”? - Held that:- Providing of cash van service with security guard is covered under ‘cash van service’ and cannot be termed as ‘security services’ as the dominant service is transportation of cash from one place to another through these cash vans - the appellants are not liable to pay differential Service Tax under the category of ‘security service’ - Penalty not imposable.
Reliance placed in the case of Kingfisher Airlines Ltd. v. Commissioner of Service Tax, Mumbai [2015 (11) TMI 54 - CESTAT MUMBAI (LB)], wherein it was held that the dominant service is transportation of passenger by air and Service Tax is not payable on excess baggage charges under the transportation of goods by air.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 384 - CESTAT NEW DELHI
Erection, Commissioning or Installation Services - appellant carried out the work of providing and erecting ‘Fire Hydrant System’ for Krishi Upaj Mandi, Kukshi, District – Dhar (M.P.) - abatement under N/N. 1/2006-ST dated 01.03.2006 - Held that:- The activity involves supply of ‘Fire Hydrant System’ as well as ‘Erection, installation’ of the same for Krishi Upaj Mandi. This nature of activity is squarely covered under the category of ‘erection and commission service’ - the demand of Service Tax upheld with the grant of abatement - appeal dismissed - decided against appellant.
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2018 (9) TMI 374 - DELHI HIGH COURT
Withdrawal of appeal - petitioner seeks liberty to withdraw the writ petition but requests that the initial bank guarantee furnished to the extent of 10% of the determined liability should be allowed to continue during the pendency of the appeal - Held that:- This aspect shall be considered by the Customs Excise and Service Tax Appellate Tribunal (CESTAT) in the petitioner’s appeal, if filed within two weeks, and appropriate orders made in this regard before considering the main appeal and its merits - petition dismissed as withdrawn.
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2018 (9) TMI 331 - BOMBAY HIGH COURT
Rejection of benefit of VCES, 2013 - recovery of Interest - Appealable order or not? - Voluntary Compliance Encouragement Scheme 2013 - Held that:- Prima facie it is not open to the Revenue to recover amounts under the above Voluntary Compliance Encouragement Scheme, 2013. The Revenue would be required to follow the procedure as provided under the Finance Act, 1994 to recover its dues after issuing a proper notice. The recovery notice in the absence of any adjudication order prima facie is without jurisdiction - there would be an interim stay of the recovery dated 4th November 2016 till the final disposal of this Petition.
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