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Service Tax - Case Laws
Showing 321 to 340 of 346 Records
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2018 (9) TMI 132 - CESTAT NEW DELHI
Refund of unutilized CENVAT Credit - N/N. 27/2012-NT dated 18th June, 2012 - Export of Services - whether export turn-over of inputs would be equal to the “Total Turnover” in terms of clause (E) of Rule 5 (1) of Cenvat Credit Rules, 2004 and that when there is no dispute of Service Tax payment on input services, whether the assessee is eligible for refund of Cenvat Credit which remains unutilized?
Held that:- The total turn-over has to be calculated on such value of export turnover as is to be calculated in the manner provided under sub-rule(d) of Rule 5 of CCR - the meaning of ‘all other services’ as mentioned in the definition of ‘total turnover’ under Rule 5 (1) E of CCR, 2004 has not been provided in CCR, 2004. As per the ‘Law of purposive interpretation’ the Commissioner (Appeals) observed that the text proceeding the phrase ‘all other services’ is ‘export turnover’. Hence, ‘all other services’ would mean ‘value of all services other than the exported service’.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 131 - CESTAT NEW DELHI
Reverse charge mechanism - GTA Services - transportation of goods by road and making payment of inward / outward freight which was incurred by them for consignment - Held that:- The department has based the case on the fact that appellant is a factory registered and is governed under the Factories Act, 1948, as is apparent from para 2 of the show cause notice. The appellant is a proprietary concern and is otherwise registered under the District Industries Centre. Thus, it becomes clear that appellant is not covered under the Factories Act.
The appellant is a proprietorship concern employing less than 10 workers and has not been registered under Factories Act but registered under MP Shop and Establishment Act. Therefore, Rule 2(1)(d)(v) of the Service Tax Rules is not applicable to them and they are not liable to pay Service Tax under GTA Service as recipient of services.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 130 - CESTAT NEW DELHI
Condonation of delay in filing appeal - appellant is the successor of deceased - case of appellant is that acquired knowledge of order of appeal dated 8th May, 2014 from the by letter of the Department dated 23rd February, 2018 only. The appeal was filed on 23rd March, 2018 i.e. within one month of acquiring knowledge by the applicant of the impugned order - Held that:- The order under challenge was announced on 18th May, 2014. The assessee, the Proprietor thereof passed away on 3rd November, 2016 i.e. after 2 years of the date of order under challenge. The application mentions no reason for the delay for said 2 years except that the deceased Mr. Santosh Rai was under medical treatment. The documents attached shows that the illness was for the year 2010-11. Hence this reason is opined as not relevant for explaining the delay for the said 2 years.
Further, the ground taken that the applicant who is the son of the deceased Proprietor had not received the copy of the impugned order prior to 23rd February, 2018 is also opined not to be a reasonable cause, as the appellant’s own annexure with the application i.e. the copy of the letter of the Department dated 23rd February, 2018 makes it clear that the letter was issued earlier also on several occasions with the repeated reminders.
There is no cogent explanation for the initial delay of two years - appeal dismissed - decided against appellant.
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2018 (9) TMI 129 - CESTAT NEW DELHI
Club or association Service - It is submitted on behalf of appellant that the appellant has discharged its liability towards the sale of food and beverages by paying VAT for the same - Held that:- The Commissioner (Appeals) in para 12 of his findings has reproduced a chart. Perusal thereof makes it clear that there is acknowledgement on the part of the Department about payment of VAT on the impugned sale by the appellant. Further, perusal of show cause notice makes it clear that the said acknowledgement is well confirming the tax liability mentioned in the show cause notice.
Thus facts stand clear that the requisite liability has been discharged, as far as the sale of goods for rendering the services by the club to its members is concerned - Since for claiming said benefit, documents evidencing sale/transfer are mandatory the appellant was required to produce the same at first available opportunity i.e. the Original Adjudicating Authority. Apparently it has not been done - matter remanded back to the Original Adjudicating Authority for being decided afresh after taking into consideration the documents as that of the invoices, if any, produced by the appellant - appeal allowed by way of remand.
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2018 (9) TMI 92 - CALCUTTA HIGH COURT
Service Tax Audit - Vires of sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by notification no. 23/24/ST dated December 25, 2014 - declaration is sought that sub-rule (2) of Rule 5A of the Service Tax Rules, 1994 as substituted by notification no. 23/24/ST dated December 25, 2014 is arbitrary and in conflict with provisions of Section 72A of the Finance Act, 1994.
Held that:- Since sub-rule 2 of Rule 5A of the Service Tax Rules, 1994, as substituted by notification dated December 25, 2014 was declared ultra vires by Mega Cabs Pvt. Ltd. [2016 (6) TMI 163 - DELHI HIGH COURT], it would be appropriate to grant interim stay of the proceedings. Such stay will continue till November 30, 2018 or until further orders whichever is earlier.
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2018 (9) TMI 91 - CESTAT BANGALORE
Commercial or Industrial Construction Service - Construction services or not? - embedding of interlocking bricks at the site of the customers for laying of internal roads and approach roads to the compound of the building on labour basis as per Section 65(105)(zzq) - Department alleged that the appellants are providing construction services during the period September 2004 to November 2005 - CBEC vide Circular No.B1/6/2005-TRU dated 27.2.2005 - Held that:- Construction of roads if undertaken as a part of contract for construction of a commercial complex or industrial building, is taxable. In the instant case, the appellants have not undertaken any such activity and their contract with their buyers was limited to laying of interlocking paver blocks and the approach roads. Therefore, the findings of the impugned order appear to be beyond the scope of provisions of law and the Circular issued.
The Tribunal in the case of Shilpa Construction Pvt. Ltd. [2010 (6) TMI 175 - CESTAT, AHMEDABAD] has held that If the contract recognizes the two activities as separate activities, even though the construction of the road is in connection with the commercial complex, the benefit has to be allowed. As such the fact whether the road is being constructed for public utility purpose or as a part of a commercial complex is not relevant.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 90 - CESTAT AHMEDABAD
Extended period of limitation - suppression of facts - Manpower Recruitment or Supply Agency services - whether the appellant is required to pay service tax under Manpower Recruitment or Supply Agency services?
Held that:- The ingredients for invoking the extended period as well as for imposing penalty under Section 78 are same - Despite change in the definition of Manpower Recruitment and Supply agency made on 16.06.2005 and the service recipient was an excisable unit therefore, there was no reason either for the appellant or for the service recipient about ignorance from changes in the law. Therefore, the reasons stated by the appellant that as per advice of their service recipient they were under bonafide belief that the services are not taxable, do not appears to be satisfactory - the appellant could not make out a case of reasonable cause for non-payment of service tax.
Reliance on the provisions of Section 73(3) - Held that:- This is clear from the fact of non-payment of service tax and the payment of service tax along with interest was made only after detection by the department. Moreover, the extended period was invoked on the ground of suppression of facts, therefore, as per sub-Section (4) of Section 73, the benefit of Section 73(3) is not available to the appellant.
Also, the penalty was rightly imposed under Section 78 by the lower authorities.
Appeal dismissed - decided against appellant.
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2018 (9) TMI 89 - CESTAT NEW DELHI
Input Service Credit - The Department alleged that appellant has wrongly availed input service tax credit for a period October, 2007 to June, 2012 - Reversal already made by way of deposit - SCN dated 16.07.2015 was served upon the appellant raising a demand of service tax under proviso to Section 73(1) of the Act read with Rule 14 of Cenvat Credit Rules, 2004 (CCR for short) alongwith the equal amount of interest and penalty.
Held that:- It is appellant’s own admission that he wrongly availed the credit. Thus, the demand confirmed for one year by the Order under challenge has no infirmity nor while limiting the same to normal period of one ear. It is also apparent from record that the appellant deposited the said wrongly availed credit only after the Department brought it to the appellant’s notice. However, the simultaneous fact is that the time of filing the ST-3 return for the period of October, 2008 to July, 2012 qua the said utilisation had not yet expired. The said ST return was filed on 24.04.2013 since the credit availed was being returned on 16.04.2013, i.e. prior filing of return, it is clear that the stage of suppressing the fact as alleged by the Department has not yet come - the deposit by way of reversal cannot be held to be a delayed deposit. Thus, question of any interest and penalty thereof does not at all arise.
The Order under challenge confirming the said demand however limiting it to the normal period of one year is though upheld but demand of equal amount of penalty and of applicable interest is set aside - Appeal allowed in part.
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2018 (9) TMI 87 - KERALA HIGH COURT
Maintainability of appeal - Section 35G of the Central Excise Act, 1944 - Whether the particular transaction or the activity carried on by the respondent-dealer would result in a service to MIBL and MFL, and as a consequence, would be covered under the Finance Act, 1994 as a business auxiliary service? - Held that:- Section 35G provides for an appeal to the High Court from every order passed by the Appellate Tribunal on or after the 1st July 2003; not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment.
The issue would have to be agitated before the Honorable Supreme Court under Section 35L - The appeals are, hence, dismissed as not maintainable reserving the right of the Department to agitate their cause under Section 35L.
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2018 (9) TMI 86 - CESTAT CHANDIGARH
Classification of services - Erection, Commissioning and Installation Services or Works Contract Services? - appellant provided services to various clients including M/s. Uttar Haryana Bijli Vitran Nigam, Shri Guru Granth Sahib World University, M/s. H.P. Singh & Others, M/s. Greater Mohali Area Development Authority, M/s. Punjab Small Scale Industries & Export Corporation Limited etc.re engaged in the supply and installation of electric works, laying/ shifting of High Transmission lines, street lightning system etc.
Held that:- It is fact on record that the appellant has provided the services in question along with material. Therefore, the classification of the services is Works Contract as per the decision of Hon’ble Apex Court in the case of Larsen & Toubro [2015 (8) TMI 749 - SUPREME COURT] wherein the Hon’ble Apex Court held that any service provided along with material falls under the category of Works Contract, therefore, prior to 01.07.2012, the service tax liability is not sustainable against the appellant under the category of ‘Erection, Commissioning and Installation Services’.
For the period post 01.07.2012, in terms of exemption Notification No. 25/2012-ST dated 20.06.2012, the services provided to government organisations or a local authority, by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation, or alteration of civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession was exempt from payment of duty.
Admittedly, the appellant is providing the said services to government organisation namely M/s. Uttar Haryana Bijli Vitran Nigam, Shri Guru Granth Sahib World University, M/s. Greater Mohali Area Development Authority, M/s. Punjab Small Scale Industries & Export Corporation Limited are not engaged in any commerce, industry or any other business or profession. In that circumstance, in terms of Notification No. 25/2012-ST dated 20.06.2012, the services provided to these organisations under contracts mentioned at Serial No 1 to 12 (except serial No. 2 and 3) are exempted from payment of duty.
Works contract or Erection, Commissioning and Installation Services? - services provided to Guru Granth Sahib University and M/s. H P Singh - Held that:- The work was completed before the negative list regime and the service has been provided by the appellant along with goods - it merits classification of the said services under Works Contract - demand of service tax is not sustainable under ‘Erection, Commissioning and Installation Services’.
Time Limitation - Held that:- There is no specific allegation against the appellant that they have not paid the service tax with intent to evade payment of service tax. In fact, the appellant was providing services to the organisations which are not engaged in any commerce, industry or any other business or profession - extended period of limitation not invocable.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 42 - CESTAT BANGALORE
Penalty - payment of Service tax before issuance of SCN - also before Final Order interest and portion of penalty was paid - Cable Operator Service - case of appellant is that thy have not paid the service tax under the impression that when the principal signal supplier is paying the service tax, then Cable TV operator need not pay service tax again on the said services - invocation of section 80.
Held that:- The appellant as per the impugned order is entitled to CENVAT credit for payment of service tax. Further the appellant has paid the substantial amount before the issue of show-cause notice and some of the amount has been paid before the Final Order was passed along with interest and penalty, the details of which has been given by him in the grounds of appeal. Further, the appellant has stated that he has paid 25% of penalty on 29.03.2011.
Further, the appellant being a small businessman and is not having adequate knowledge of the Act and the Service Tax Rules and paid the entire amount along with interest and 25% of the penalty, therefore, he is entitled to the benefit of Section 80 of the Finance Act 1994 as there was a reasonable ground for failure to pay the duty in time.
Penalty set aside by invoking section 80 - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 41 - CESTAT MUMBAI
Liability of Service Tax - Programme Producer’s Service - appellant hired the services of certain nonresident service providers namely M/s IMG and M/s Hawkeye for producing the live feed of the cricket matches being played in India to be telecasted on various TV Channels, against payment of commercial consideration for the IPL 2008, IPL 2009 & IPL 2010 - services were being provided by the nonresident service provider and hence service recipient - Revenue Neutrality.
Held that:- There is no dispute about the fact the services provided by the nonresident service providers namely M/s IMG and M/s Hawkeye for producing the live feed of the cricket matches being played in India for the appellants have been held to be classifiable as “Programme producer’s Service” and hence liable to service tax under the said category - the service tax in respect of this service was due from the Appellant on reverse charge basis and was to be paid by them on the due date as prescribed.
Revenue Neutrality - Held that:- The case cannot be revenue neutral in view of the fact that in this case because service tax is being demanded from the Appellant only for the reason that the service provider is nonresident, in case service provider was located in India, service tax would have been paid by him in respect of the present transactions. Manner of payment of the tax would not change the nature of levy and in any case if the argument of revenue neutrality is accepted as permissible defense in the present case entire scheme of payment of taxes on reverse charge basis will become otiose and no business liable to pay service tax would be required to pay service tax in respect of services received by them from nonresident service providers, for the reason that the tax so paid will be available as credit to them.
Penalty u/s 76 - delay in payment of service tax from the due date - Held that:- Various authorities as follows have upheld imposition of penalty under section 76 in case of delay in payment of service tax from the due date - reliance placed in the case of COMMISSIONER OF C. EX. & CUSTOMS VERSUS SJ. MEHTA & CO. [2010 (10) TMI 135 - GUJARAT HIGH COURT] - penalty upheld.
Appeal dismissed - decided against appellant.
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2018 (9) TMI 40 - CESTAT ALLAHABAD
Extended period of limitation - Business Auxiliary Services - Recovery Agent Services - Held that:- Some demands have been paid by the appellant during investigation, the same is required to be verified by the Authorities below whether the said amount paid by the appellant covers the demand within the period of limitation or not? - Therefore, the matter needs examination at the end of the Adjudicating Authority.
The learned Commissioner (Appeals) has observed that there is no willful intent of evade payment of service tax and the said order has not been challenged by the Revenue. In that circumstances, the extended period of limitation is not invokable as no mala fides are attributable to the appellant, therefore, the demands pertains to the extended period of limitation is set aside - Penalty also set aside.
Appeal disposed off.
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2018 (9) TMI 39 - CESTAT ALLAHABAD
Commercial or Industrial Construction - period from 10.09.2004 to 31.05.2007 - demand of Service Tax - Held that:- The appellant had entered into a composite contract wherein they had supplied the goods along with the service and paying VAT as works contract on the goods supplied by them.
Relying on the decision of Hon’ble Apex Court in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] wherein it has been held that if the assessee providing service along with goods, then the service is covered under ‘works contract’. Admittedly, the said service is taxable with effect from 01.06.2007 and for the prior period, if assessee is providing service along with material, the assessee is not liable to pay service tax under the category of ‘Commercial or Industrial Construction’ services.
The appellant is not liable to pay service tax as the appellant is providing service along with material - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 38 - CESTAT ALLAHABAD
Classification of services - appellants engaged foreign agents in foreign countries for getting the meat exported from India to be cleared in foreign countries and delivering such goods to the consignees - Whether the Service classified under Business Auxiliary Service or Clearing and Forwarding Agent Service? - Held that:- There is no responsibility cast on the foreign agent for promoting the sale of goods produced by the appellant - there is no activity mentioned in the agreement to fit into one of entries at Sl. No. (i) to (vi) of the definition under Section 65 (19) of the Finance Act, 1994.
The services rendered by foreign agents to the appellant are correctly classifiable as clearing and forwarding agent service - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 37 - CESTAT ALLAHABAD
Refund claim - refund claim was rejected on the ground that the shipping bill and commercial invoices were in the name of M/s.BRK Commodity India Ltd. and the application for refund was filed by M/s.KLA (I) Public Ltd. - Held that:- A copy of fresh certificate of incorporation is available at page 37 of the appeal paper book and therefore it is undisputed fact that M/s.BRK Commodity India Ltd. and M/s.KLA India Public Ltd. are one and the same - refund cannot be rejected on the said ground that the documents were in the name of M/s. BRK Commodity India Ltd. and the refund application was filed by M/s.KLA India Public Ltd.
There is no report available on record about the requirement of conditions of said Notification having been satisfied in the present case - matter remanded to the original authority to examine admissibility of the refund in terms of the conditions of the Notification under which refund claim was filed and decide the claim in accordance with law - appeal allowed by way of remand.
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2018 (9) TMI 36 - CESTAT ALLAHABAD
Business Auxiliary Service - commission received from HDFC Bank as a recovery agent during the period 2008-2009 to 2012-2013 - Demand of Service Tax - Held that:- In all the years the services provided by the appellant remained below the threshold limit of ₹ 10 lakhs. Moreover, with regard to the issue of sale of goods was not disputed by the authorities below and not consider in the impugned order - as the value of services provided by appellant falls within the threshold limit of 10 lakhs, no Service Tax is payable by the appellant - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 35 - CESTAT ALLAHABAD
CENVAT Credit - common input/input services used for providing taxable as well as Exempted Services provided by the appellant - case of Revenue is non maintenance of separate records - Held that:- In appellant own case MAGNUM VENTURES LTD. VERSUS C.C.E. GHAZIABAD [2016 (8) TMI 307 - CESTAT ALLAHABAD], Tribunal that appellant is maintaining separate account as required under Rule 6(2) of the Cenvat Credit Rules, 2004 and credit need not be reversed - demand @ 5% of the value of the exempted services is not sustainable - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 34 - CESTAT ALLAHABAD
Classification of Services - Business Support Services or Supply of Tangible Goods Service? - right to use of studio/office and other equipment - demand of Service Tax with Interest and penalty - extended period of limitation - Held that:- An identical situation was considered by the Tribunal in the case of Bajaj Hindustan Limited vs. Commissioner of Central Excise, Lucknow [2018 (5) TMI 552 - CESTAT ALLAHABAD] and it was held that the explanation under the definition of business support services refers to circumstance wherein infrastructure stands provided along with office and other common utility to a person conducting his business from that place. Activity of renting of land along with renting of plant and machinery fell under the category of “renting of immovable property” and “supply of tangible goods” and activity is not covered under the definition of “support services of business or commerce”.
Admittedly in the present case, office/studio along with equipment stands hired by the customer at a fix annual rent. Once the premises have been handed over to the customer, it is the obligation of the customer to maintain the said premises and to get all the infrastructure like a telephone line or the electricity, etc., on their own - the appellant had not provided any “Business Support Services” but the activity amounted to falling under the category of “Supply of Tangible Goods”, which were not taxable during the period prior to 16.05.2008.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 33 - CESTAT ALLAHABAD
Works Contract Service - Construction of Residential Complex Service - appellant contended that w.e.f. 01.06.2007, they registered themselves under “Works Contract Service” and paid service tax on the said service under works contract service - Held that:- The issue is covered by the decision in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], where it was held that such activities were covered w.e.f. 01.06.2007 under works contract service and for the earlier period the same activities which were covered by works contract service did not attract any service tax - appeal allowed - decided in favor of appellant.
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