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Service Tax - Case Laws
Showing 61 to 80 of 115 Records
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2012 (8) TMI 437 - CESTAT, CHENNAI
Transportation of cargo by air - default in payment of service tax - assessee contested against invoking the extended period of limitation - Held that:- The appellants were liable to pay service tax for the reason that they were not eligible for the benefit of the Export of Service Rules, 2005 based on the reasoning that the service was performed in India & that during the period from 15.3.2005 to 15.7.2005 the period during which the exemption as was available in Notf.No. 28/2004-ST dated 17.9.2004 was rescinded but not re-stored - Thus the appellants could not get waiver from service tax on such services during the period 16.6.2005 (Date on which Notf 28/2005-ST took effect) to 23.6.2005 (Appellant started paying service tax from 24-06-2005).
As during the period 15-06-2005 to 23-06-2005, the appellant was not able to collect taxes from the customers cannot a reason to waive the liability or to consider that the appellant had bonafide belief that tax was not payable for the said period, thus the extended period of time can be invoked in this case.
Invocation of Section 80 - Held that:- Considering the legislative history of notifications like notification 28/2004-ST dated 17-09-2004, 9/2005-ST dated 03-03-2005 and 28/2005-ST dated 07-06-2005 and Notification 29/2005-ST dated 15-07-2005 would justify invoking section 80 - all the penalties imposed on the appellant is set aside
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2012 (8) TMI 436 - CESTAT, KOLKATA
Non-registration with the Service Tax Department and failure to pay service tax - Held that:- As Commissioner (Appeals) set aside the order passed by the adjudicating authority confirming the demand & penalty and remanded the matter for denovo adjudication is not correct as that by an amendment to Section 35A of Central Excise Act, 1944 w.e.f. 11.5.2011, the power of remand has been specifically withdrawn by the legislature - the embargo on the power of remand in Section 35A is squarely applicable to the provisions of Section 85 of the Finance Act, 1994.
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2012 (8) TMI 435 - CESTAT, KOLKATA
Rejection of refund claim in terms of Notification No.41/2007-ST dated 6.10.2007 - appellants did not submit the requisite documents before the sanctioning authority for examination - on challenge Commissioner (Appeals remanded the matter to the lower authority - Held that:- Considering the amended Section 35A w.e.f. 11-5-2001 under the Finance Act, 1994 Commissioner (Appeals) is not empowered to remand the matter and he has to decide the matter by himself, therefore the order of Commissioner (Appeals) remanding the case to the lower authority, is not sustainable.
Thus the Commissioner (Appeals) is certainly entitled to set aside order passed by the Adjudicating Authority and thereupon pass an appropriate order on merits by himself but not to remand the matter. Being so, Commissioner (Appeals) dealing with the appeals in relation to the service tax also is not empowered to remand the matter but he has to decide the matter by himself - remand the matter to the lower adjudicating authority making such further inquiry as may be necessary.
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2012 (8) TMI 406 - CESTAT, BANGALORE
Power of the Commissioner (Appeals) to remand – 100% EOU - export of IT software - refund claim under Notification No. 5/2006 dated 14.3.2006 in respect of the unutilised credit accumulated due to export of services – Commissioner (Appeals) allowed the refund of Cleaning activity, Security Agency, Courier charges, Repair & Maintenance, Cargo Handling, Commercial Training or coaching, Courier, Internet Telephone, Manpower Recruitment, Pager, Rent a cab operator, Telephone, Chartered Accountants, Clearing & Forwarding Agents, Outdoor catering except Air Travel Agent service - Held that:- Order of the Commissioner (Appeals) is not a remand order and he has clearly held that the refund was available in respect of all services except Air Travel Agent service . Therefore, I do not find any merit in the submission that the Commissioner s (Appeals) order is a remand order. Appeal rejected.
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2012 (8) TMI 405 - CESTAT, BANGALORE
Liability of Service tax on the import of service for the period from 1.1.2005 to 18.4.2006 - Held that:- Liability under Finance Act 1994 for availing service of foreign agents arise after 18.04.2006 following Apex Court decision in case of Indian National Shipowners Association v. Union of India (2010 (12) TMI 12 - SUPREME COURT OF INDIA ) - Decided in favor of assessee
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2012 (8) TMI 404 - CESTAT, NEW DELHI
Demand of service tax - under the category of "Business Auxiliary" service provider – benefit of Notification No.l4/2004/ST, and Notification No. 6/2005-Customs – Held that:- According to appellant individuals are totally exempt from the purview of the service tax when they provided services on behalf of their client - Authorities below have not dealt with exemption notification - matter remanded to Adjudicating Authority-
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2012 (8) TMI 403 - CESTAT, CHENNAI
Double taxation of service tax - subcontractor - the appellant stated that when the appellant provided courier service to the main courier namely professional couriers and service tax having been paid by the latter, there shall not be levy on the appellant. - held that:- No doubt, larger bench decided [in Vijay Sharma & Co. & 2 Others Vs CCE Chandigarh - 2010 (4) TMI 570 - CESTAT, NEW DELHI]the case of stock brokers and sub-brokers where the matter in controversy was about taxability as was the question framed in para-1 of the reported decision cited by ld. Counsel. We do appreciate that larger bench decision emerged subsequent to adjudication. Therefore, ld. Adjudicating authority had no advantage of reading that decision. But entire plea of appellant was without proof and nothing was proved to show that the appellant was a mere agent of the principal courier. It is therefore not possible to hold that the appellant acted as a courier without being a provider of business support service.
Stay granted - matter remanded back to pass a reasoned and speaking order dealing with pleadings and evidence..
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2012 (8) TMI 375 - CESTAT, AHMEDABAD
Violation of the principles of natural justice - denial of Cenvat Credit - order based on reports called from the range officer after hearing appellants - absence of opportunity to appellant to defend their case - Held that:- It is undisputed that the reports was called for behind the back of appellant and that too after the issue was heard and arguments of appellants were closed. When it is clear that the appellant was not given a copy of the said report, and it was obtained after the personal hearing in the matter, we find that there is definitely a gross violation of the principles of natural justice. In our considered view, all the three impugned orders are liable to be set aside on this account.
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2012 (8) TMI 374 - CESTAT, BANGALORE
Recovery ordered of education cess refunded to exporters along with service tax, by virtue of exemption notifications where whole of service tax is exempt - Held that:- According to section 95(1) of Finance (No. 2) Act, 2004 and section 140 (1) of Finance Act, 2007. Education Cess and Secondary and Higher Education Cess are leviable and collected as service tax, and when whole of service tax is exempt, the same applies to education cess as well. Since Education Cess is levied and collected as percentage of service tax, when and wherever service tax is NIL by virtue of exemption, Education Cess would also be NIL. Henceforth, where education cess has been refunded to exporters along with service tax, by virtue of exemption notifications where whole of service tax is exempt, the same need not be recovered. Commissioner's orders for recovery of part of the refunds sanctioned are set aside.
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2012 (8) TMI 373 - CESTAT, MUMBAI
Whether the appellants could have paid tax on an exempted services and claimed refund under Notification No. 17/2009 which allows refund of tax paid on services used in or in relation to the export of goods – Held that:- No clause barring an assessee from paying tax on exempted services and claiming refund thereafter in the Finance Act, 1994 unlike in the case of payment of duty under the Central Excise Act - findings of the lower appellate authority that the assessee could not have claimed refund under Notification No. 17/04 is not correct in law – in favor of assessee
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2012 (8) TMI 372 - RAJASTHAN HIGH COURT
Franchise service – waiver of pre-deposit - petitioner is a Society established solely for educational purposes - Anti Evasion Wing of Central Excise Division, Ajmer, revealed that the petitioner was engaged in providing 'franchise service' to various parties/schools – Held that:- Agreement entered into between the petitioner and other four schools, it is revealed that the petitioner not only permitted, allowed and granted a revokable license to these schools to use the name 'Mayoor School', its logo and moto, but in consideration of the grant of said license - this 'collaboration fees' was nothing but the 'franchise fees' and it clearly fell in the net of service tax - writ petition dismissed
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2012 (8) TMI 344 - CESTAT, AHMEDABAD
Denial of benefit of Notification No. 01/2006-ST as amended, for the reason that the appellant has availed the cenvat credit while providing the Commercial or Industrial Construction services - plea for waiver of pre-deposit - assessee contended reversal of cenvat credit taken on input services - Held that:- If an amount taken as cenvat credit on the input services is reversed, various judicial pronouncements holds that such an amount is to be treated as credit not availed. Since this plea was not taken before the lower authorities, it is better left to the lower authorities to consider this plea in the factual matrix and come to a conclusion. Matter remitted back.
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2012 (8) TMI 343 - CESTAT, AHMEDABAD
Plea for condonation of delay - reason provided for non filing the appeal in time being resignation of director looking after legal matters in August 2011 and non-information of order by him to management - in affidavit date of receipt of order mentioned as 04.05.12 whereas in ST-5 it is mentioned as 08.08.11 - Held that:- We find that the appellant has been callous in exercising his right of appeal before us and has not given sufficient cause for seeking the condonation of delay. There is no bonafide reason for not filing the appeal in time. Accordingly, we are convinced that the appellant has not made out a case for the condonation of delay. Appeal dismissed.
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2012 (8) TMI 342 - CESTAT, NEW DELHI
Plea for waiver of penalty imposed u/s 78 - assessee engaged in services of erection, commissioning and Installation contended by Revenue to be falling under work contract category w.e.f. 1.6.2007 - assessee submitted that provisions of section 80 may be invoked since there was confusion in the industry and two authorities of the department itself has given two different conclusions - Held that:- While confirming the demand of duty as not contested, penalties imposed under Section 78 are set aside as there was confusion in the field, and non-payment of Service Tax was not on account of any mala fide - Decided in favor of assessee.
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2012 (8) TMI 341 - CESTAT, AHMEDABAD
Survey and Map Making - liability - assessee contended that main contractor was discharging the service tax liability on the entire contract executed by them and the appellant is only executing a part of the contract which have been awarded to them hence not liable to tax - Held that:- On perusal of the certificates issued by original contractor, we find that the original contractor had given ref. no. of the contract and also their service tax registration no. which could have been verified by the lower authority inter departmentally. In our considered view this should have been done by the adjudicating authority before adjudicating the issue. Appeal is allowed by way of remand to the adjudicating authority
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2012 (8) TMI 316 - CESTAT, AHMEDABAD
Service Tax liability on the commission received - Held that:- A submission was made during the hearing that the fact of payment of service tax was incorporated in the ST3 returns filed by the appellant but it was fairly agreed that this claim was also not made before the original authority - if the appellant was aware that service tax was being paid by Maruti Udyog Limited, invocation of extended period also may not be fair since there cannot be any suppression of facts or mis-declaration in such a situation - remand the matter back.
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2012 (8) TMI 315 - CESTAT, AHMEDABAD
Service Tax liability under the category of Construction services - Held that:- Considering submission by the main contractor that they are in receipt of contract from third party out of which they will be sub-contracting some of the work to the appellant herein and is discharging entire Service Tax liability on the entire amount of contracts - thus tax liability cannot be fastened on the appellant - in favour of assessee.
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2012 (8) TMI 314 - CESTAT, AHMEDABAD
Penalty under Section 76 - call for invoking Section 80 - Held that:- As Adjudicating authority has already invoked Section 80 curtailing the penalty to Rs 1 Lakh considering the reason that the appellant could be under impression that they have to discharge the Service Tax liability only when they recover the same from their client - as the Service Tax liability on Security Agency services being new, the entire penalty need to be deleted - in favour of assessee.
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2012 (8) TMI 313 - CESTAT, AHMEDABAD
Wrong availment of benefit of Notification No.32/2004-ST - appellant had not produced declaration of non-availment of CENVAT Credit on the inputs as well as capital goods - Held that:- Once the declaration has been filed by GTA on their letter-head as regards non-availment of CENVAT Credit, the benefit of Notification No.12/2003-ST should not be denied. In this case which is in our hand, it is undisputed that the appellant had filed the declaration to the adjudicating authority - in favour of assessee.
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2012 (8) TMI 288 - CESTAT, AHMEDABAD
Denial of refund of service tax - notification No.41/07 - port services - Held that:- What is required to be seen whether service tax was paid for the service rendered under the admissible services category or not. If the service tax has been paid under business auxiliary service, appellant may not be eligible. Before sanctioning refund in respect of services provided, the category of service and for which service tax has been paid may be verified from the invoice or any other document that may be produced by the appellants before a decision is taken.
GTA service - Refund claim cannot be rejected on technical grounds like invoices issued by transport agencies do not contain all the details. If the appellant is able to correlate the export goods with the documents supporting service tax payment, such a refund should be granted.
GTA service received for transportation of empty container - it cannot be denied that the transport of empty container to the exporter's premises was necessary and was received in relation to exported goods - The matter is remanded to the original adjudicating authority for fresh consideration
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