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Service Tax - Case Laws
Showing 41 to 60 of 2090 Records
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2013 (12) TMI 1484 - GUJARAT HIGH COURT
Denial of CENVAT Credit - GTA Service - Tribunal followed the decision of ABB Limited Vs. Commissioner of Central Excise reported in [2011 (3) TMI 248 - KARNATAKA HIGH COURT] - Revenue contends that against the decision of the Karnataka High Court in the case of M/s ABB Limited (Supra), the revenue is before the Hon'ble Supreme Court - Held that:- it is required to be noted that apart from the fact that nothing is on record that the decision of the Karnataka High Court in the case of M/s. ABB Limited (Supra) has been stayed or not. There is a binding decision of the Division Bench of this Court in the case of Parth Poly Wooven Pvt Ltd (Supra) and nothing has been pointed out whether against the decision of the Division Bench in the case of Parth Poly Wooven Pvt Ltd (supra), the department has approached the Hon'ble Supreme Court or not. It is not in dispute that as such the controversy in question is as such covered against the revenue by the decision of this Court in the case of Part Poly Wooven Pvt Ltd (2011 (4) TMI 975 - GUJARAT HIGH COURT). - No question of law much less any substantial question of law arise in the present appeal. - Decided against Revenue.
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2013 (12) TMI 1476 - ANDHRA PRADESH HIGH COURT
Whether CESTAT is correct in holding that the GTA service utilized by the assessee as recipient, is input service for providing the output service i.e., ‘authorized service station’? - Correctness of tribunal order [2009 (3) TMI 155 - CESTAT, BANGLORE] - Held that:- the learned Tribunal has given correct interpretation and this is one possible interpretation and we cannot substitute by another one. Thus, we do not find any element of law involved for admission of this appeal. - Decided against the revenue.
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2013 (12) TMI 1474 - CESTAT BANGALORE
Denial of CENVAT Credit - input service had no nexus with the manufacture of goods and the document was incomplete - Held that:- what exactly was suppressed by the assessee in this case is not known. The requirement of submission of the documents on the basis of which credit has been taken is no longer in the Statute book. Therefore, the appellant was not required to produce the documents on the basis of which credit has been taken. Hon’ble Supreme Court has already taken a view to the effect that to invoke suppression facts, suppression of facts should be such that they should be ones which are required to be declared in accordance with Statute before the Statutory Authorities. When a document on the basis of which credit was taken is not required to be produced, how suppression of facts can be invoked and on what basis defies imagination. In any case, I find considerable force in the arguments advanced by the learned counsel that before a decision in the case of Cadila Healthcare (2013 (1) TMI 304 - GUJARAT HIGH COURT ) by Hon’ble Gujarat High Court was rendered, there was a view prevailing that credit is admissible in respect of service rendered by commission agent. In fact, there is a Circular issued by the Board where such a view has been taken. Under these circumstances, extended period could not have been invoked in this case. - impugned order is set aside - No deficiency in the bill/invoice, I have to take a view that Cenvat credit has been taken correctly. - Decided in favour of assessee.
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2013 (12) TMI 1473 - CALCUTTA HIGH COURT
Waiver of pre dpeosit - services of liaisoning and monitoring of movement of coal to the plants of cement manufacturing companies - Assessee applied for surrender of license - Rejection of request - Classification under Business Auxiliary service or clearing and forwarding service - held that:- Where an assessee has a good prima facie case, and the disputed duty and/or penalty has apparently been charged wrongfully, the requirement of pre-deposit of the disputed tax and/or penalty is liable to be waived, since pre-deposit of tax not payable by an assessee, would in itself was hardship to that assessee, as held by this Court in a Bongaigaon Refinery & Petrochem Ltd. v. Collector of Central Excise (A), Cal. reported in [1992 (4) TMI 56 - HIGH COURT AT CALCUTTA]. - Where there is a very good prima facie case, pre-deposit would have to be waived altogether. Where the appellant has an arguable case, pre-deposit might be waived on such conditions as would protect the interest of Revenue. In fact, the Commissioner (Appeals), was conscious of his duty to consider the prima facie case and accordingly recorded a finding that the service rendered was covered under the definition of business auxiliary service. The Commissioner (Appeals), however, did not consider whether the purported demand was barred by limitation.
Commissioner (Appeals) has cursorily considered the merits of the case. The learned Tribunal has not at all considered the question of limitation. Admittedly, the demand was not raised within one year but almost after five years by invoking the extended period of limitation. The justification of such invocation has not at all been considered. - The Commissioner (Appeals) has not at all considered whether there was any fraud, misrepresentation or suppression with intent to defraud revenue to justify the invocation of the extended period of limitation. - Moreover, after the writ petition was filed the appeal has been dismissed on 9th April, 2012 without any further notice to the petitioner and without opportunity to the petitioner to make pre-deposit - The impugned order cannot be sustained and the same is set aside and quashed - Decided in favour of assessee.
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2013 (12) TMI 1471 - ANDHRA PRADESH HIGH COURT
Waiver of pre deposit - Bar of limitation - Held that:- Tribunal has satisfied that prima facie case has been made out with regard to the period of limitation. Therefore, technically undue hardship has been established. Accordingly, the learned Tribunal granted part relief and made an order of waiver of pre-deposit to the extent of 50% of the tax component and interest thereon and also made a full waiver of the component of penalty. - Tribunal has observed that the question of limitation has to be gone into at the hearing of the appeal, we think, at this stage, it will be true hardship for the appellant to pay the interest component. - Tribunal slightly by waiving full interest component also. However, the rest of the order will remain as it is. This waiver of interest component fully will be applicable provided the appellant executes a bond covering the 50% interest component within a period of seven days from the date of receipt of a copy of this order. This bond shall be executed by the appellant in favour of the Commissioner of Central Excise, Hyderabad-II, binding itself to pay the interest amount fully. - Appeal disposed of.
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2013 (12) TMI 1438 - ALLAHABAD HIGH COURT
Demand of service tax - Valuation of taxable service - Held that:- all the service charges are leviable on gross amount charged by the service provider, the service tax has to be paid on such entire gross amount. There cannot be any bifurcation of such gross amount and that the challenge to the valuation of taxable service based on any clarificatory letter issued by the Ministry of Finance, Government of India on the face of the clear provisions of charging section under Section 66 and the valuation of taxable service under Section 67, is not sustainable - value of taxable service includes gross amount chargeable to service tax and which also includes wages and the amount paid towards provident fund and employees state insurance realised from the customers - Decided against assessee.
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2013 (12) TMI 1437 - CESTAT CHENNAI
Support services of business or commerce- The applicants filed this application for waiver of predeposit of service tax and penalties. Held that- the applicants only given on\hire one crane. Therefore, prima-facie, merit in the contention of the applicants and predeposit of amounts of service tax, interest and penalties are waived and recovery of the same is stayed during pendency of the appeal - Following decision of INDUSTRIAL SERVICES (GASES) Versus COMMISSIONER OF C. EX., HALDIA [2010 (4) TMI 339 - CESTAT, KOLKATA] - Prima facie case in favour of assessee - Stay granted.
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2013 (12) TMI 1436 - CESTAT BANGALORE
Convention service - Rent-a-cab Service used for conveyance of employees – Waiver of Pre-deposit - ‘Rent-a-cab service’ was partly used for transportation of food from the Hosur unit of the company to the appellant-unit - no break-up of the CENVAT credit availed on ‘Rent-a-cab service’ is available on record and hence there is no way to ascertain the amount of CENVAT credit attributable to the transportation of food - the appellant was entitled to take CENVAT credit of the service tax paid on the convention service by the service provider inasmuch as the very definition of ‘input service’ included ‘coaching and training’ - Prima facie view in favour of the appellant in respect of ‘convention service’ as also in respect of ‘rent-a-cab service’ to the extent this service was used for conveyance of employees – appellant directed to deposit Rupees Twenty thousand as pre-deposit – upon such submission rest of the duty to be waived till the disposal – Partial stay granted.
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2013 (12) TMI 1435 - CESTAT CHENNAI
Stay application - Demand of service tax - Construction of residential complex - Acitivity done by own labor - Held that:- Board’s clarification is about a person owning land who is constructing residential complex, using labour engaged by him because in such a situation there is no separate service provider and service receiver. If the person having land engages the services of another contractor for getting the complex constructed the contractor provides service of construction of residential complex to the land owner. In this case, the land is registered in the name of prospective buyers of residential units and thereafter the complex is constructed. So there is a service provided to the land owners by the applicant and the position is legally clear and made clear in the circular referred to by the applicant - Following decision of LCS City Makers Pvt. Ltd. Vs CST Chennai [2012 (6) TMI 363 - CESTAT, CHENNAI] - Prima facie case not in favour of assessee - Stay granted partly.
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2013 (12) TMI 1434 - CESTAT CHENNAI
Stay Application - Free service provided during the warranty period - Benefit of exemption notification No.12/03-ST - Held that:- The entire dispute arises out of the fact that this service being provided is commonly referred to in this industry as free service. This is not free service at all. This is rendered at a cost both for the services and for the parts which are paid by the manufacturer to the appellant. However, the owner of vehicle is one of the beneficiaries of the activity. The vehicle manufacturer is also a beneficiary because such services enhances his brand value and the reputation of his goods and customer satisfaction which helps in further business. So the manufacturer pays for it and naturally it is a service provided to the manufacturer of vehicles. Similarly the person who pays for the parts is the person to whom goods are sold. Therefore, we are of the view that there is sale of goods in this case and the benefit of exemption notification No.12/03-ST dt. 20.6.2003 is prima facie available to the applicant - Prima facie case in favour of assessee - Stay granted.
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2013 (12) TMI 1433 - CESTAT MUMBAI
Penalty u/s 76 & 78 - Commissioner set aside penalty - Held that:- Section 80 of the Finance Act,1994 provides notwithstanding any contained in Sections 76,77 or 78 of the Act no penalty is imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was a reasonable cause of the said failure - Respondent had paid the service tax of Rs.1,14,33,254/- for the period in dispute and there was a short payment of only Rs.15,41,427/- That also had been paid before the adjudication order. Appellant also paid the interest. In these circumstances, we find merit in the contention of the Respondents that there was a calculation mistake and there was no intention on the part of the Respondents to evade payment of service tax - Decided against Revenue.
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2013 (12) TMI 1432 - CESTAT MUMBAI
Construction service - Construction of canteen building covered under the definition of Input services under Rule 2(1) of Cenvat credit Rules 2004 OR not – Held that:- Canteen can to be considered as integral part of the factory and cannot be considered as outside the factory - the construction service used in constructing the canteens should not be allowed - canteen is an integral part of factory and factory cannot be limited to the manufacturing area alone - Input service includes services used in relation to setting up of the factory as also, for an office relating to such factory - for purpose of definition of the input services as the definition of input services includes not only the factory but also the office relating to such factory - Relying upon Commissioner of Central Excise, Ahmedabad-I Vs. Ferromatik Milacron India ltd. [2010 (4) TMI 649 - GUJARAT HIGH COURT] - The appellant would be eligible to take the input service credit relating to construction services at the material time i.e. July 2005 - The definition of input service has undergone change w.e.f 1.3.2011, the situation may not be the same from that date – Decided in favour of Assessee.
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2013 (12) TMI 1431 - CESTAT MUMBAI
Penalty u/s 78 - Waiver of penalty u/s 80 - Repeated failure to discharge service tax liability - Appellant also failed to submit statutory ST-3 returns from April 2008 onwards - Held that:- appellant had collected service tax from the customers but failed to remit the same to the exchequer. The failure on the part of the appellant to discharge the tax liability has taken place several times during the impugned period. Every time the department pointed out the mistake, the appellant used to make good the short-payment in service tax along with interest. It is also a fact that the appellant did not file ST-3 returns within the statutory period prescribed. The argument of financial difficulty raised by the appellant is bereft of any logic. If service tax amount has been collected from the customer, the appellant cannot plead financial difficulty in remitting the same to the exchequer. The argument that the appellant is only a matriculate is also not sufficient reason for non-compliance with the statutory provisions. From the records of the case, it is evident that the appellant was aware of the legal procedures and requirement. The appellant collected the service tax from the customers but failed to remit the same to the exchequer - Therefore, penalty is justified - Decided against assessee.
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2013 (12) TMI 1430 - CESTAT CHENNAI
Waiver of pre deposit - Demand of service tax - Held that:- on a rough estimate of the amount involved is the tax amount on the differential value of the freight amount which is about Rs.35 lakhs in the two appeals together we direct the applicant to make a pre-deposit of Rs.7 lakhs within a period of six weeks from today for admission of the appeals - Stay granted partially.
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2013 (12) TMI 1429 - CESTAT NEW DELHI
Demand of service tax - Receipt of parchee fees - Classification under business auxiliary service - Parchee fees collected from the members engaged in transport business - Held that:- From the scheme and object of the law notified in Gazette aforesaid, it is difficult to construe the appellant to be commercial concern acting in a ‘commercial manner’. The very object of Section 15 of the Act aforesaid was to provide welfare measure without acting as a commercial concern. Accordingly, it is not practicable to direct the appellant to suffer service tax for the impugned period under adjudication for which appeal is allowed - Decided in favour of assessee.
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2013 (12) TMI 1428 - CESTAT AHMEDABAD
Waiver of pre-deposit - Service Tax liability - Renting out of immovable property - SSI exemption as granted by Notification No. 6/2005-S.T., dated 1-3-2005 and amended vide Notification No. 8/2008-S.T., dated 1-3-2008 - Held that:- benefit of SSI exemption Notification No. 6/2005-S.T., dated 1-3-2005 as amended vide Notification No. 8/2008-S.T., dated 1-3-2008, grants the benefit of exemption of Service Tax per year, provided that the assessee has not crossed the threshold limit of rupees ten lakhs in the preceding financial year. In these cases, if the cheques for rent are received individually by all the appellants, it was indicated in the agreement between the individuals for the purpose of renting out of premises to another person so as to make it specific that individually they are renting out the property to a person. On perusal of the said notification, we find that the said notification talks about the aggregate value of the taxable services rendered, should be considered for the purpose of exemption and in this case if individually all the appellants be considered as provider of such service, their aggregate value does not exceed the threshold limit. Prima facie, we find that the appellants have made out a case for waiver of pre-deposit of amounts involved - Stay granted.
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2013 (12) TMI 1427 - CESTAT NEW DELHI
Abatement of 67% - Works contract - Held that:- There was no scope for classification before the adjudicating authority when there was no issue in that regard. If Revenue’s fresh ground of classification is entertained that shall cause prejudice to the interest of justice when the issue framed against the respondent at adjudication stage was not on that score. Therefore, it is not possible to make a fresh adjudication on a fresh ground at second appeal stage - Decided against Revenue.
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2013 (12) TMI 1426 - CESTAT NEW DELHI
Demand of service tax - Repair of damaged electric motors - Penalty u/s 75A and 76 - Held that:- As per entry at Section 65(64) as it stood at the relevant time and reproduced above only activities carried out under a maintenance contract was covered in clause (i). The appellants had no maintenance contract with their customers. Clause (ii) was applicable only to a manufacturer of the goods or persons authorized by him. The appellants were not the manufacturer of the goods or a person authorized by such manufacturer. So the activity was not covered by the definition at Section 65(64) at the relevant time. So the demand is not maintainable. Consequently interest and penalties also does not arise - Decided in favour of assessee.
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2013 (12) TMI 1425 - CESTAT NEW DELHI
Penalty u/s 75A, 76 and 78 - Invokation of power u/s 80 - Business Auxiliary Service - Held that:- appellant is not contesting the Service Tax amount and interest demanded. The appellant is a small service provider and the levy in question was in the initial stage of implementation. The very name of the service viz “Business Auxiliary Service” does not give any clarity and the entry covered different types of activities. So there was confusion in the minds of people about the actual scope of such service. For that reason, the appellant was not able to claim the Service Tax amount from the HDFC Bank and consequently there was some delay in remitting the tax to the Government. In this type of situation, it is proper to invoke powers under Section 80 of Finance Act, 1994. The Adjudicating Authority rightly did so and there was no reason to reverse such order and impose penalty on the appellant - Decided in favour of assessee.
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2013 (12) TMI 1385 - CESTAT MUMBAI
Denial of Cenvat credit – Debit notes not in a prescribed format under Rule 9 of Cenvat credit Rules, 2004 – Waiver of Pre-deposit – Held that:- Following Pharmalab Process Equipments Vs. CCE, Ahmedabad [2009 (4) TMI 142 - CESTAT AHMEDABAD] – and MISSION PHARMA LOGISTICES (I) PVT. LTD. Versus COMMISSIONER OF C. EX., RAJKOT [2012 (11) TMI 117 - CESTAT, AHMEDABAD] - CENVAT Credit can be availed on the basis of debit notes which contained all the ingredients as required under the invoices - the applicant has a strong prima facie case in their favour - Pre-deposit waived till the disposal – Stay granted.
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