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Service Tax - Case Laws
Showing 1 to 20 of 135 Records
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2009 (8) TMI 1169
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... ... ..... llected through dual approach of Revenue to tax service provider and service recipient. 2. We have specifically directed revenue to examine the issue of double taxation, if any, by two Commissionerates. 3. Ld. DR submits today that time was very short to get a reply from the Commissionerate. We, therefore, grant time to Revenue to examine the pleading of the Ld. Counsel as to double taxation of the same service under two different categories by different Commissionerate. 4. We make it very clear that we are hearing such double taxation grievance in similar cases for sometimes past repeatedly. Revenue is accordingly directed to come out with a clear report whether service charges that has been subject matter of tax by the impugned order, are by any means subject matter of double taxation by Commissionerate of Allahabad. Report from that Authority is expected by 30.9.09. 5. Call the matter on 12.10.09. Till then there shall be status quo ante. Order dictated in the open Court.
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2009 (8) TMI 1163
Constitutional validity of certain provisions of the Kerala Stamp Act, 1959, which were introduced by way of an amendment by the Finance Act, 2007 - scope of works contract.
Held that: - there is no reason for the third petitioner to include those conditions, if he is only a works contractor. Those conditions would show that the third petitioner is more than a works contractor. A close reading of Ext.P2 would show that the third petitioner is not at all a works contractor. Yet another relevant fact is that it was the third petitioner who obtained the building permit from Kakkanad Panchayat, under the Kerala Municipality Building Rules, 1999, which were extended by the Government to the said Panchayat's area also. So, it is the responsibility of the third petitioner under the said Rules to build the apartments in accordance with the conditions of the building permit and also in compliance with the relevant Rules. Therefore, the third petitioner is not a works contractor.
If the veil is lifted, it is clear that the builder is building and selling flats to prospective buyers and the sale consideration is received in instalments. But, agreements are made to appear the transaction to be one of works contract. If it is a works contract and the owner is constructing a building in his property, no duty can be levied on the building constructed because no transfer takes place.
A legislation cannot be invalidated by simply saying that its provisions are arbitrary, unless the challenge is referable to specific violation of any constitutional provision. The payment or the liability to pay stamp duty will not, in any way, affect the rights of the first petitioner or its members to carry on the business of development of lands or building flats.
Petition dismissed - decided against petitioner.
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2009 (8) TMI 1161
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... ... ..... id ₹ 75 lakhs. We accept the payment already made is sufficient for the purpose of compliance with the statutory requirement of Section 35F of the Central Excise Act, 1944 and waive predeposit of balance amount amounts including interest and penalty imposed upon the applicants and stay recovery thereof during the pending of the appeal. (Order pronounced and dictated in the open Court)
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2009 (8) TMI 1133
Technical Inspection - whether Software Development and Software Services undertaken by the respondent comes under the caption “Technical Inspection”?
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2009 (8) TMI 967
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... ... ..... the service tax liability within one month of service of intimation quantifying interest payable till the date of payment. Ld. adjudicating authority shall do well to calculate the interest component as early as possible and quantify the same as well as communicate the appellant within one week of receipt of the order by him. After communication of the order by the Ld. Commissioner, within one month thereof, the appellant is directed to make deposit of the interest amount. We make it clear that till the date of calculation by the adjudicating authority, the interest demand shall be quantified and thereafter till the date of payment the assessee shall calculate interest amount payable and make payment thereof in full. Compliance in respect of the penalty as aforesaid shall be made on 16-10-09 and towards interest deposit, compliance shall be made on 4-12-09. 6. In the result, the stay application is disposed of in the manner as stated above. (Order dictated in the open Court)
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2009 (8) TMI 965
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... ... ..... e, prima facie, the appellants cannot be called upon to pay the same amount once again. However, it is not that the entire amount has been found to have been paid by the transport agency. An amount of Rs. 3,052/- has not been paid out of the total demand. I, therefore, direct pre-deposit of Rs. 3,052/- to be made by the applicants within four weeks from today and on such deposit pre-deposit of interest and penalty shall stand waived and recovery thereof stayed pending the appeal. Failure to comply with direction shall result in vacation of stay and dismissal of the appeal without prior notice. 3. Compliance to be reported on 18-9-2009. (Dictated and pronounced in open court)
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2009 (8) TMI 964
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... ... ..... oked any sub-rules under which the appellant is liable for penalty. The Apex Court in the case of Amrit Foods v. CCE, U.P supra has held that ldquo Assessee to be put on notice as to exact nature of contravention for which assessee was liable under provisions of Rule 173Q/Rule 25 of Central Excise Rules, 2002 rdquo . As the above Apex Court decision is squarely covering the issue, the penalty imposed under Rule 15, without mentioning sub-rules, has to be set aside. Further as contended by the appellant the penalty is imposable on the manufacturer availing wrong input service credit only under sub-rule (3) of Rule 15 and that too, maximum penalty imposable is Rs. 2,000/-. Without understanding the above legal position, equal penalty was imposed blindly. On this count also, penalty imposed on the appellant is not sustainable. 6. In view of the facts and circumstances, I allow the appeal by setting aside the impugned OIO passed by the Joint Commissioner, Central Excise, Pune-II.
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2009 (8) TMI 963
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... ... ..... the appellants are providing services under clause II of Section 65(19) of the Finance Act 1994 as lsquo promotion or marketing of services rsquo provided by his client. It is his submission that they are only marketing the initial public offer of the shares issued by the companies. 4. emsp Learned SDR defends the order. 5. emsp On perusal of the records, we find that the revisionary authority has recorded a finding that the applicant is managing the IPO issue and collection of the application money etc. It is undisputed that the services provided by the applicant is to the companies who are offering shares which may not be covered as a taxable service during the relevant period. Accordingly, we find that the applicant has made out a prima facie case for waiver of pre-deposit of the amounts involved. Application for waiver of the pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (8) TMI 962
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... ... ..... ad service. rdquo The above clarification was issued on 23-8-2007. The period of dispute in the present case is from September, 2005 to March, 2006. Further, limitation of the circular is mentioned in the Para-1 which reads as under ldquo It is, however, clarified that this circular is intended only to clarify the scope of the Act and the rules, and therefore, in the event of any inadvertent inconsistency or contradiction between this circular and the provisions oj the Act or the rules, the latter shall prevail rdquo 13. Moreover, the provisions under Rule 2(p) of the Cenvat Credit Rules, 2004 are changed vide Notification No. 10/2008-C.E. (N.T.), dated 1-3-2008 and GTA service is removed from the definition of output service with effect from 1-3-2008. Therefore prior to 1-3-2008, GTA service was also considered to be an output service. ORDER 14. After careful consideration of all the facts and findings narrated in above, I set aside the impugned order. The appeal is allowed.
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2009 (8) TMI 961
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... ... ..... on the appellant is not sustainable, in as much as, the same issue was decided by the CESTAT vide its order dated 20-9-2005 setting aside the Commissioner (Appeals) rsquo order dated 31-3-2005 which had upheld the decision of the lower authority passed vide his O-I-O No. KOP-II/ADJ/STC/2002, dated NIL. Even otherwise, as claimed by the appellant, the second SCN covering the same issue and same period is also not maintainable as held by the Tribunal, Delhi in the case of CCE, Indore v. Sidharth Tubes Ltd. Further the second SCN is time barred as held by the Hon rsquo ble Tribunal Bangalore in the case of CCE, Belgaum v. Ghataprabha Sahakari Sakkare Karkhane Niyamit - 2007 (8) S.T.R. 545 (Tri. - Bang.) supra. In short, on all grounds, the impugned order is no sustainable. Accordingly, I set aside the same. 5. In view of the facts and circumstances, I allow the appeal by setting aside the impugned order passed by the Assistant Commissioner, Central Excise, Kolhapur-II Division.
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2009 (8) TMI 960
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... ... ..... mission itself is Rs. 20 lakhs and therefore, he is not a Small Scale provider in the eyes of law. Further, as per Explanation (B) to the said notification, ldquo aggregate value not exceeding 8 lakhs rupees rdquo - means the sum total of first consecutive payment received during a financial year towards the gross amount as prescribed under section 67 of the said Finance Act, charged by the service provider towards taxable service till the aggregate amount of such payment is equal to 8 lakhs rupees...... rdquo As already held as the first amount received by the appellant is more than Rs. 8 lakhs, he is not at all eligible to deduct Rs. 8 lakhs from his commission of Rs. 20 lakhs. He has to discharge duty on the total commission only. On this ground also, the appellant is not entitled to get the refund. 5. In view of the above facts and circumstances, I reject the appeal by upholding the impugned OIO passed by the Assistant Commissioner, Central Excise and Service Tax, Panaji.
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2009 (8) TMI 959
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... ... ..... ally would get reduced to that extent. And accordingly, the equal penalty will also get reduced. 5. Another plea that when penalty under Section 78 is imposed, penalty under Section 76 is not imposable, is acceptable. In the instant case, lsquo mens-rea rsquo has been proved and accordingly, the penalty imposed under Section 78 is sustainable. But penalty under Section 76 is imposable when there is late payment which is not on the account of suppression of facts etc. In other words, simultaneous penalty under both the Sections is not sustainable since they deal with different situations. The above view has been held in the following cases i.e. Financiers v. CCE - 2007 (8) S.T.R. 7 (T), CCE v. Silver Oak Garden Resort - 2008 (9) S.T.R. 481 (T) and CCE, Ludhiana v. Pannu Property Dealers - 2009 (14) S.T.R. 687 (T-Del). 6. In view of the above facts of the matter, I reject the appeal by upholding the order passed by the Assistant Commissioner, Central Excise, Ratnagiri Division.
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2009 (8) TMI 958
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... ... ..... of mens rea. Once it has been held that the appellant has failed to take Service tax registration and pay the correct tax on the correct value, mens rea under Section 78 has been proved and therefore, liable for penalty only under Section 78. Accordingly, I set aside the penalty imposed under Section 76. In result, penalty imposed under Section 77 is retained. However, the double penalty imposed under Section 78 cannot be upheld, in as much as the duty is getting reduced on account that cum-duty price has been allowed and Rs. 94,300/- which was received prior to the introduction of Service tax on Business Auxiliary Service, was excluded from the taxable value. Therefore, fresh demand has to be arrived at and accordingly, the penalty under Section 78 will also undergo a change. Further, the appellant is liable to pay interest on fresh demand. 8. In view of the matter, I remand the case to the original authority to arrive at fresh demand and then impose the penalty accordingly.
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2009 (8) TMI 957
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... ... ..... ions made by both sides and on perusal of the records, we find that the Commissioner has issued another Show Cause Notice for enhancement of penalty on the very same offence, for which he has already imposed penalty under different sections by Order-in-Original No. 4/2008 dated 18-1-2008. Hence, we are of the considered view that the current proceedings in the Order-in-Original No. 25/2008 dated 14-10-2008, are not warranted. In view of this, we find that the applicant has made out a prima facie case for waiver of pre-deposit of penalty confirmed by this order. The application for waiver of pre-deposit of penalty is allowed and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in the court)
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2009 (8) TMI 956
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... ... ..... provider of services under lsquo works contract rsquo with the department. He invites our attention to the Registration Certificate placed on record. It is submitted that the said activity assessed under the head lsquo works contract rsquo could not have been subjected to tax for an earlier period under any other pre-existing category. 2. We also heard the learned Departmental Representative who defends the impugned order. 3. On a careful consideration of the case records and rival submissions, we find that the appellants have made out a prima facie case against the impugned demand and penalties. It is settled that service tax cannot be charged on an activity brought under tax net under a new entry under a pre-existing category for a previous period without matching changes in the existing entries. In the circumstances, we order complete waiver of pre-deposit of the adjudged dues and stay recovery thereof pending decision in the appeal. (Pronounced and dictated in the court)
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2009 (8) TMI 955
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... ... ..... pellant has been categorized by the adjudicating authority as lsquo photography service rsquo and lsquo scientific and technical consultancy services. rsquo We find that the applicant is not rendering photography services. The activity undertaken by the applicant has been clearly brought out in the OIO. Further, we find that the contention of the learned counsel that survey and map making is a category which at the most can attract the activities of the appellant and that has come into the service tax net from 16-6-2005. It is a settled law that prior, to the date any new service comes into effect, it would not be covered under any other services. Be that as it may, we find that the applicant has already deposited Rs. 4.41 crores, which we consider as enough deposit to hear and dispose, of the appeal. Appeal for waiver of pre-deposit of the balance amounts involved is allowed and recovery thereof stayed till the disposal of the appeal. (Pronounced and dictated in open Court)
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2009 (8) TMI 800
Waiver of pre-deposit - Cenvat credit - It is submission that the construction of Kisan Shade and Labour Hutment would not come within a definition of ‘input service’ as it is welfare measure - It appears that construction of Kisan Shade and Labour Hutment are statutory duties under the law. Thus, prima facie the activities are related to business - pre-deposit of tax and penalty is waived till disposal of the appeal - Stay application is allowed
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2009 (8) TMI 791
Appeal before Tribunal against rejection of refund claim - payment of fee for filing an appeal - Section 35C(6) of Central Excise Act, 1944 - Held that: - provisions of section 35C(6) are not applicable to the present appeals inasmuch as, in these appeals, no demand of duty is involved, nor any levy of penalty. The above provisions are not applicable to appeals filed against rejection of refund claims, simpliciter. The Registry is, therefore, directed to accept the minimum fee of Rs. 1,000/- in each of these appeals
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2009 (8) TMI 789
waiver of the pre-deposit - applicant has availed ineligible Cenvat credit on the services rendered by C&F agent - the issue which is in dispute is whether the activity of cutting the Rebars as done only in some cases, that also on the requirement of the customer of the applicant and Service Tax paid on such services is eligible as Cenvat credit - inputs have to be interpreted in the light of requirements of business activities. We find that the applicant has made put a prima facie case for the waiver of the pre-deposit of the amounts involved - Decided in favour of the assessee
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2009 (8) TMI 752
Cenvat credit – input service – Cargo handling service - Revenue submits that service tax paid on transportation of finished goods (Cargo Handling service and service provided on Technical Testing & Analysis provided outside the factory premises) from the place of removal to the customer destination, not covered under the definition of input service - Tribunal in the case of ABB Ltd. v. CCE & ST held that definition of “Input service” has to be interpreted in the light of requirement of business and cannot be read restrictively so as to confine only up to the factory or only up to depot of manufacturers - contention of the Revenue not sustainable – Appeal rejected
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