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Service Tax - Case Laws
Showing 61 to 80 of 122 Records
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2011 (1) TMI 654 - CESTAT, CHENNAI
Refund of unutilized credit of service - Export services - Registration taken later but the refund claim pertains to a period prior to that date - registration is merely required for the purpose of maintenance of accounts - the fact that it is the Government's policy not to burden export with domestic taxes - the relevant rules require only those assessees to take registration who are required to pay service tax - This is a case where the respondent-assessees were not liable to pay any service tax but are merely claiming refund of the unutilized credit of tax paid on input service - Decided in favour of assessee.
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2011 (1) TMI 650 - CESTAT, NEW DELHI
Demand - Mandap keeper service - Time limitation - cost of goods sold - exemption under notification no. 12/2003 - there was no sale involved in the Appellant’s transaction as Mandap keeper while serving their customers, for there is no sale of food and beverage as defined in section 2(h) of the Central Excise Act, 1944. When there is no sale of any materials or goods, the exemption under Notification No. 12/03-ST would not apply. This exemption notification is inapplicable to indivisible service contracts like the present one in hand. The plea that service tax can not be levied on the portion of value of Mandap Keeper Service which represents the value of food and beverages served is baseless. In fact in paras 42 & 43 of the Apex Court judgment in case of Tamil Nadu Kalyana Mandapam Association (2004 -TMI - 135 - SUPREME COURT OF INDIA) it has been held in very clear terms that Article 366(29A)(f) only permits the states to impose a tax on the supply of food and drinks by whatever mode it may be made and it does not conceptually or otherwise includes the supply to services within the definition of sale and purchase of goods. - Decided against the assessee. It was pleaded that in absence of fraud, suppression of facts, wilful misstatement etc. with intent to evade the payment of tax penalty under section 78 ibid is not called for - Held that: there is no suppression of facts etc. on the part of the Appellant and this is a case of interpretation of exemption notification, and since the criteria for imposition of penalty under section 78 ibid is the same as the criteria for invoking extended limitation period under proviso to section 73(1), there are no grounds for imposition of penalty under section 78.
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2011 (1) TMI 649 - CESTAT, NEW DELHI
Penalty u/s 76 - Service provided outside India i.e. in Nepal - Business auxiliary services - Export of service Rules, 2005 provides for exemption of service exported subject to the condition that the, payment for such service is received by the service provider in convertible foreign exchange - Hence, the assessee agrees that the payment has been received in Indian currency - prima facie state, we are of view that the applicant has not been able to make out a good case so as to dispense with pre-deposit of the entire dues - Decided against the assessee.
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2011 (1) TMI 642 - CESTAT, BANGALORE
Business Auxiliary Service versus Business Support Service - Classification - Electricity Call Centre, Customer Service Centre, Computerized Collection Centre, Energy Audit, Consumer Indexing, Watch & Ward Route Riders etc., - Call Centre Services were exempted vide Notification No. 8/2003-ST as amended and were exempt till 1-3-2006 and liable to Service Tax thereafter - There are several agreements executed by the appellant with different electricity companies of Andhra Pradesh and electricity departments/companies of Orissa - it can be seen that the nature of work performed by the so called electricity call centres, can be said to be registration of complaint on behalf of the electricity board and monitoring of the same till the complaints are resolved - Once the appellants deal with the customer, he is acting on behalf of the electricity company/department and therefore classification of services provided by the appellant is appropriately to be classified under Business Auxiliary Service and not under SSBC Regarding software maintenance - It is the submission of the appellant that maintenance and repair includes development of software and in fact development of software is outside the preview of service tax since the Information Technology service became liable to Service Tax on the development of software only with effect from 16-5-2008 - In the absence of the word 'development' and presence of word 'maintenance' in the agreement, and also in view of the failure of the appellant to submit bifurcation, we have to take a view that the agreement covers maintenance only - suppression of facts could not have been invoked in this case, In view of the above decision, - maintenance of software became taxable only from 1-6-2007. Regarding SSDC - IWhen the meter reading is not done by the implementing agency, as can be seen from the contract with the respective Assistant Accounts Officers or EROs are required to provide meter reading books on the prescribed dates and the appellant is required to enter the data of meter readings, verify the same, incorporate in the computer master and process the bills - Held that: this activity is correctly classifiable under SSBC as claimed by the learned Advocate Regarding Energy Audit - In this case, by doing energy audit, the appellant is assisting in finding out whether all the electricity received has been sold and if not, where the problem lies. This is nothing but management of distribution and logistics of electricity supplies - Held that: this is clearly covered under SSBC and not under Business Auxiliary Service Regarding time limitation - The certificate of registration was granted much later, but subsequently amendment was issued to say that it was valid from the date of application. After the application was received from the appellant, investigation was taken up and show-cause notice was issued on 5-6-2007 - It is a statutory obligation on the part of every service provider to see whether the service rendered by him is liable to Service Tax and make declaration to the department - It has to be noted that even on 3-3-2006, when the application was made, the appellant had not indicated all activities undertaken by them - Appeal is partly allowed
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2011 (1) TMI 636 - CESTAT, BANGALORE
Application for abatement - Notification No. 15/2004-S.T., dated 10th September 2004, and Notification No. 18/2005-S.T., dated 7th June 2005 - Section 67 of the Finance Act specifically enumerated the items which were excluded from the value of the taxable service. There is no such exclusion w.e.f. of 18th April, 2006 - Rule clearly provides that where the value cannot be determined, equivalent money value of consideration which cannot be less than the cost of the provisions of taxable service, is required to be taken into account and value of taxable service is the total value of taxable service is the total amount of consideration consisting of all components of taxable service - The fact that it is not only the supplies made by the service provider or materials used by him which form a part of the service, but also other considerations which are non-monetary in nature, are also required to be taken into account - Appeal is disposed of
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2011 (1) TMI 609 - KARNATAKA HIGH COURT
Condonation of delay - Tribunal felt the reason given for condoning the delay do not constitute a sufficient cause and therefore refused to condone the delay and consequently dismissed the appeal - it is clear that there; is demand of payment of tax and for non-payment of tax within the time Stipulated, the appellant/assessee is liable to pay interest, penalty etc.; in accordance with law - it is settled law that an assessee is not liable to pay any tax unless the statute warrants the same, the said question to be gone into by appropriate fourm - it is always open to the respondent/revenue to proceed to recover the amount which is legitimately due in accordance with law - Appeal is allowed
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2011 (1) TMI 599 - CESTAT, CHENNAI
Credit of service tax paid on input service - 100% EOU - foreign commission agents - Definition of the ‘inputs services' includes services used in relation to ‘sales promotion', and these activities can rightly be described as sales promotion activities - Sales promotion activities undertaken at a given point of time also aims at sales of goods which are to be manufactured and cleared in future - Any advertisement given has a long term impact and cannot be treated as post clearance activities and therefore, sales promotion has been specifically included in the definition of input services.” - Held that in the case of Cadila Healthcare Ltd. Vs. CCE, Ahmedabad - [2009 -TMI - 75189 - CESTAT, AHMEDABAD], credit of tax paid for foreign commission agents' services being for sales promotion has been allowed - Decided in favour of assessee.
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2011 (1) TMI 598 - CESTAT, NEW DELHI
Demand with penalty - Business Auxiliary Service - It is noticed that the activities undertaken by the assessees include feeding the data provided by their clients in the computer net work system with the help of software specifically developed for the clients and generating the bills and delivering the bills and other reports to the clients - As, during the period prior to 1.5.2006, the definition clearly exclude the Information Technology Services from the ambit of "Business auxiliary services" the activities undertaken by the assessees are not taxable under the category of "Business auxiliary services" - Decided in favour of the assessee
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2011 (1) TMI 590 - CESTAT, BANGALORE
Eligibility to avail Cenvat Credit - Limitation - Service tax paid by the service tax provider on mobile phones which were used by the staff - The contention of the revenue is that the amount of bill of the cell phones used by the employees is paid by the employees themselves - At the same time, the contention of the ld. Counsel that the amount has been reimbursed has not been rebutted in anywhere in the records - it is observed that no evidence was available on record to substantiate the above claims of the department - Further the appellants are not required under law to furnish the details of cell/mobile phones on which they had availed the input service credit as alleged by the department, which by no stretch of imagination can be averred as suppression of facts which necessitates invoking proviso to section 11A of the Central Excise Act - It is for the department to decipher and analyse the details of credit availed by the appellants in the monthly returns furnished to the department - Hence, the demand is clearly time barred. In any case input service credit is available to fixed telephone and mobile telephones given to the employees of a unit in the light of decision of Hon'ble Tribunal in the case of M/s. Keltech Energies Ltd. v. CCE [2008 -TMI - 4051 - CESTAT BANGALORE]- Decided in favour of assessee.
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2011 (1) TMI 562 - CESTAT, NEW DELHI
Demand with interest & penalty - waiver of penalty u/s 80 - The authority below on analysis of materials on records has held that though there was to some extent suppression of facts, the assessee had immediately cleared the tax liability upon being pointed out - The main reason given by the Adjudicating Authority for invoking Section 80 of the Finance Act, 1994 is that the assessee cooperated fully during the investigation and also paid up the tax to be paid immediately, once their failure was pointed out - The very nature of the entry relating to Business Auxiliary Service and the large number of disputes that arose regarding the scope of entry clearly show that there was some confusion in the minds of prospective assesses about the scope of this entry - Revenue appeal dismissed.
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2011 (1) TMI 550 - CESTAT, NEW DELHI
Service tax liability - Import of service - appellant submits that as a recipient, they are not liable to pay Service Tax prior to 18.4.2006 on which date Section 66A was introduced in the Finance Act, 1994 - As per the decision of the Hon'ble High Court of Bombay in the case of Indian National shipowners Association Vs. Union of India [2008 -TMI - 32013 - HIGH COURT OF BOMBAY] ,decided in favour of assessee.
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2011 (1) TMI 536 - CESTAT, NEW DELHI
Waiver of predeposit -Demand and penalty imposed - Business auxiliary services - The activities of promoting the business on commission basis amounting to business auxiliary services - The service tax on activities undertaken by them under the category of clearing and forwarding agent for the period April, 2001 to March, 2003 - The said show cause notice proposing to confirm the demand of Rs. 16,83,603/- was dropped by the Additional Commissioner vide his order dated 22-3-07 - The appellants activity continued to remain the same - The Revenue was fully aware of the activities - There is no evidence reflecting upon any positive act of suppression or misstatement with intent to evade payment of duty by the appellant - Find that the demand stands raised against them by taking out the figures from the appellants ledger of accounts and balance sheet for the relevant year - Balance sheet is a public document and available to all concerned - Reflection of the income and the said activity in the ledger account and the balance sheet will reflect upon the absence of any wilful suppression or mis-statement on the part of the appellant so as to invoke longer period of limitation - Hence, allow the stay petition unconditionally.
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2011 (1) TMI 506 - CESTAT, BANGALORE
Waiver of pre-deposit - Notification No.32/04-ST dt. 31/12/2004 - Commissioner has rejected the claim of the appellant that no further tax was due from DCL on the ground that the impugned instances of transportation did not qualify for the benefit of Notification No.32/04-ST - Rule 9(1)(f) of the Cenvat Credit Rules, 2004 - cenvat credit disallowed and demanded also relates to credit taken on photocopies of duty paying documents as well as service tax paid on freight incurred for outward transportation - Decided in favour of the assessee by way of remand to Commissioner
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2011 (1) TMI 505 - CESTAT, NEW DELHI
Application for condonation of delay - Against penalty imposed u/s 76 and 78 of Finance Act, 1994 the appellant has lost his appeal in respect of imposition of penalty u/s 78 and they are not in appeal before the Tribunal - However, the respondent is on cross objection - Revenue's appeal is only against imposition of penalty u/s 76 of the Finance Act, 1994 - The date chart filed does not at all disclose consciousness of revenue to seek remedy before the limitation expired - Similar failure is also indicative from the date chart proving no consciousness even after limitation - Consequently, Misc. application for condonation of delay is dismissed - Thus, the appeal is dismissed accordingly.
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2011 (1) TMI 495 - CESTAT, NEW DELHI
Demand - banking and financial services - Foreclosure is ending the loan already given and cannot be treated as lending to the customers of loan, and in our considered opinion the same cannot be treated as rendering any services by the financial institution - it is a case of withdrawing the services rendered, at the request of the customers, and the foreclosure premium is a kind of compensation for possible loss of interest revenue on the loan amount returned by the customers. Therefore, the activity of foreclosure of loan can not be treated as "banking and financial services - Appeal is allowed
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2011 (1) TMI 474 - CESTAT, NEW DELHI
Service tax liability - Whether the amounts recovered by the State Bank from their customers showing the charges as expenses incurred on postal services for rendering banking services to the customers have to be liable to service tax - the State Bank of India is that they are in the business of providing banking services and not in the business of providing postal services - In respect of banking service provided by them they have discharged the service tax on the basis of amount charged by them - As per their understanding of the Section 67 they were not to pay service tax on the postal service which they utilised in the course of providing banking services to their customers. We note that in the case of services rendered by some branches of SBI the department has accepted the argument of SBI, at the adjudication stage and those orders are under Appeal - Therefore, it proper to issue a direction that the department shall not insist on any payment of tax demanded from State Bank of India in respect of the Appeals already filed till there is a decision by Committee on Disputes.
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2011 (1) TMI 463 - CESTAT, NEW DELHI
Refund - Rule 2(1)(d)(iv) of the Service Tax Rules, 1994 - Assistant Commissioner without going into the merits of the case rejected the refund application on the ground that alongwith the refund application, the appellant have not enclosed the original copy of the TR-6 challan but have attached only photocopy - Since according to the appellant, the original copy is now available with them, the appellant are directed to produce the same before the original Adjudicating Authority - Decided in favour of the assessee by way of remand
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2011 (1) TMI 461 - KARNATAKA HIGH COURT
Business Auxiliary Service (BAS) - marketing / distribution of pharmaceutical products - commission agent outside India - Import of service - held that - from 18-4-2006 the service provided by a person who is outside the country and who has no fixed establishment or permanent address in the country, such a taxable service shall be treated as if the recipient of service had himself provided the service in India and accordingly all the provisions of this Chapter shall apply. Therefore, prior to 18-4-2006 the service tax was not payable by the recipient, in the event the service provider was outside the country and he had no permanent address or place of business within the country. - Not liable to tax during the relevant period.
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2011 (1) TMI 441 - CESTAT, BANGALORE
Cenvat Credit - Show-cause notice was issued for the recovery of service tax credit availed on the said outward services for export as irregularly availed Cenvat Credit - place of removal can only be a factory or a warehouse or a depot and therefore the appellant's contention that port of shipment would be place of removal is not correct - Tribunal in the case of Modern Petrofils Vs. CCE, Vadodara [2010 -TMI - 77338 - CESTAT, AHMEDABAD] has, in an identical situation, held that the port of shipment can be considered as place of removal and assessees entitled for the credit of service tax paid on freight till port of shipment
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2011 (1) TMI 390 - CESTAT, CHENNAI
Enhancing the penalty u/s 78 - Since, the dispute relates to enhancement of penalty by the order of the revision authority from Rs. 1,42,550 to Rs. 1,95,328 - The facts on record reveal that against the very same order of the original authority dated 29-12-2008, the appellant filed an appeal before the Commissioner (Appeals) and the Commissioner (Appeals) after carefully considering the submissions from both sides set aside the penalty under section 76 and upheld the penalty of Rs. 1,42,550 under section 78 - Thus, it is clear that sustainability of penalty under section 78 was an issue before the Commissioner (Appeals) - In these circumstances, the Commissioner was not justified in enhancing the penalty from Rs. 1,42,550 to Rs. 1,95,328 - Decided in favour of assessee.
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