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Service Tax - Case Laws
Showing 21 to 40 of 262 Records
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2014 (12) TMI 1138
Denial of refund claim - Notification No. 41/2007-ST dated 06.10.2007 - Held that:- Appellant have failed to produced required documents, accordingly the adjudicating authority has rejected the case on grounds of non-submissions of the documents and sans the same it could not be ascertained the vital aspects of the admissibility of the refund claim in accordance with the conditions as stipulated in the Notification No. 03/2008-ST dated 19.02.2008, as amended. The appellant have not adduced any further documents to this stage of appeal in support of their claim of refund, in the circumstances, the admissibility of the claim is not ascertainable. I find that the adjudicating authority has decided the case not only after considering each and every facts of the case but also discussed the matter at length and correctly rejected the refund claim. I do not find any infirmity with the findings of the adjudicating authority; as such the impugned order deserves to be upheld.
Admissibility of refund claims of the service tax paid under the impugned exemption notification is subject to production of certain documents and fulfilling prescribed conditions. First appellate authority has clearly given findings that appellant has not fulfilled the specified conditions by adducing required documentary evidences. I do not find any reason to interfere in the order passed by the first appellate authority, as nothing new has been brought on record by the appellant that documents required and conditions prescribed are fulfilled. - Decided against assesse.
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2014 (12) TMI 1137
Imposition of penalty - Invocation of Section 80 - GTA service - Payment of tax as service recipient - Held that:- Appellant is a proprietary concern and not assisted by any professionally qualified officer. Even though, ignorance of law is not an excuse, yet the statutory provisions under Section 80 of Finance Act, 1994 have been made to enable officers to take a lenient view when assessees make omissions/commissions in payment of service tax. Normally, assumption of a layman would be that tax is to be paid by the service provider and if an assessee proceeds on this basis, they cannot be found fault with. At the same time, it has to be noted that each case has to be considered on its own merits and the conduct of the parties in relation to the demands made by the Department etc. In this case, in the month of October-November, 2009, the requirements of payment of service tax were pointed out and in December-January, thereafter, the appellant paid the entire amount of tax with interest. In view of the promptness of the appellant in paying the tax with due interest and in view of the peculiar circumstances which I have already considered above, I consider this is a fit case of invoking the provisions of Section 80 of Finance Act, 1994 - Decided in favour of assessee.
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2014 (12) TMI 1136
Penalty u/s 78 - Enhancement of penalty - transmission and distribution of electricity - Notification No. 45/2010-S.T., dated 20-7-2010 - whether the appellant is required to pay revised penalty - Held that:- in view of the Notification which exempts service tax upto 21-6-2010, the activity undertaken by them would not have been leviable to service tax at all if the appellant was not to pay the tax with interest and 25% of the penalty. Needless to say that the question of imposition of a revised penalty would not arise in such a situation since it would amount to imposing penalty on assessees who pay the tax as and when demanded with interest without questioning the right to collect and without any delay - Decided in favour of assessee.
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2014 (12) TMI 1135
Commercial Training or Coaching Service and Technical Testing and Analysis Service - exemption Notification No. 6/2006-Service Tax, dated 1-3-2006 - Held that:- Prior to introduction of Explanation to clause (zzc) of Section 65(105), by provisions of the Finance Act, 2010, there was considerable conflict as to whether an institute/establishment could be said to have provided Commercial Training or Coaching or where such coaching or training was provided without any commercial purpose or a profit motive. To clarify the issue legislature intervened and introduced the Explanation which clarifies that the expression “Commercial or Coaching Centre” includes any Centre or institute, by whatever name called, where training or coaching is imparted for consideration, whether or not such centre or institute is registered as a trust or a society or similar other organization under any law for the time being in force and is carrying on its activity with or without any profit motive. The provision enjoins that the expression “commercial training or coaching” shall be accordingly construed. This Explanation was introduced with retrospective effect, from 1-7-2003 i.e. the nativity of the relevant taxing provision. No prima facie case in favour of the petitioner/appellant insofar as its assessed liability to service tax under the category of Commercial Training or Coaching is concerned. As the assessed liability to service tax under the head Technical Testing and Analysis is directed to be recomputed de novo, by the order of the Appellate Commissioner, the levy of this component of service tax is at present in eclipse - Conditional stay granted.
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2014 (12) TMI 1134
Penalty u/s 77 & 78 - Held that:- Assessee has paid the entire amount of Service Tax, interest and penalty imposed by the Commissioner. In view of the payment of all dues we are of the opinion that the present case would fall under second proviso to Rule 7C of Service Tax Rules, 1994. Besides we do not find merit in the Revenue’s plea that penalty is necessarily to be imposed under Section 77 of the Finance Act, the said provision is prescribed in dealing circumstances where no penalty is specified elsewhere and the maximum penalty leviable at the relevant time under the said provision was maximum ₹ 5,000/-. In these circumstances, we do not find substance in the appeal filed by the Revenue - Decided in favour of assessee.
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2014 (12) TMI 1133
Waiver of pre deposit - Site clearance and preparation service - Held that:- Appellant had sub-contracted the entire contract on a back-to-back basis to another contractor who executed the work and demand has been raised against the contractor who executed the work also. In view of the fact that the appellant had not executed the work and demand has been raised against the contractor who did the work, we consider that the appellant has made out a case for waiver - Stay granted.
Works contract service - Held that:- unless the procedure as prescribed under the relevant rules is followed, according to which the appellant was required to opt for composition scheme before making the payment of tax, they cannot avail the benefit. Under these circumstances, the claim for composition scheme may not be admissible to appellants at all. Hence, we find that appellant has not made out a case for waiver in respect of this amount. No financial difficulty has been pleaded. - Partial stay granted.
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2014 (12) TMI 1099
Power to conduct service tax audit / Revenue Audit – Validity of Rule 5A of Service Tax Rules, 1994 - instruction of the Central Board of Excise and Customs (“CBEC”) no. F. No. 137/26/2007-CX.4 dated 1.1.2008 - whether special audit can be ordered by recourse to Section 72-A of the Finance Act, 1994 - Supreme Court stayed the operation of the impugned judgment of High Court in [2014 (8) TMI 200 - DELHI HIGH COURT].
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2014 (12) TMI 1098
Waiver of pre deposit - Repair and maintenance service - Construction service - Held that:- The impugned order directing the appellant to deposit 40% of the demand is sans any reason. The order is cryptic running into six lines recording that such cases of maintenance, repair and cleaning service have been heard earlier also and the appellant was directed to deposit 40% of the service tax demanded and report compliance by 11.04.2013. There is no other reason recorded in the order. Neither there is consideration, even worth the namesake of any prima facie case of the appellant nor there is any reason, much less finding with respect to the undue hardship. it was incumbent upon the Tribunal to have addressed the issue of prima facie case of the appellant and also that of undue hardship. impugned orders passed by the Tribunal on the waiver application, are not liable to be sustained and are set aside. As a consequence, the impugned orders passed by the Tribunal dismissing the appeals for non-compliance of the condition of pre-deposit also stands set aside. - Matter remanded back - Following decision of Mehsana Dist. Co-OP. Milk P.U. Ltd. Vs. Union of India [2003 (3) TMI 113 - SUPREME COURT OF INDIA] - Decided in favour of assesse.
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2014 (12) TMI 1097
Club Membership - Constitutionality of section 65(105) - laiblity for service tax - Whether services provided by the assessee club to its members would be liable to service tax - the club is rendering service or selling any commodity to its members for a consideration then whether the amounts to sale or not – Held that:- In the case of SPORTS CLUB OF GUJARAT LTD Versus UNION OF INDIA & 3 [2013 (7) TMI 510 - GUJARAT HIGH COURT] the provision of Section 65(25a), Section 65(105) (zzze) and Section 66 of the Finance (No.2) Act,1994 as incorporated / amended by the Finance Act,2005 to the extent that the said provisions purport to levy service tax in respect of services purportedly provided by the petitioner club to its members, was declared as ultra vires. - order passed by the Commissioner of Service Tax is required to be set aside - Decided in favour of assesse.
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2014 (12) TMI 1096
Waiver of pre deposit - Renting of immovable property - Held that:- Appellant himself has admitted before the Adjudicating Authority that they would collect service tax from its users and remit the same. Hence, the appellant should not now raise a question that the lease was entered into long before the introduction of Section 65(105)(zzzz) of the Finance Act, 1994 and hence not liable to pay service tax. The appellant has not produced any material showing that they are suffering from financial hardship. - Following decision of P.K.Hospitality Services Ltd. V. UOI reported in [2014 (8) TMI 820 - Supreme Court of India] - appellant is directed therein to pay the arrears in equated monthly instalments - stay denied.
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2014 (12) TMI 1095
Denial of refund claim - Petitioner initially paid service tax and claimed refund as the activity is not liable for service tax – Refund rejected by the original authority, partly allowed by the Commissioner (Appeals) subject to verification of unjust enrichment – Refund not grated even after the order of Commissioner (Appeals) - Held that:- Once the petitioner asserted that it did not pass on the liability of service tax to its customer i.e .. BSNL, it could have been verified as to whether BSNL paid any amount to the petitioner towards service tax. The irresponsibility on the part of the incumbents, who held the office of the 3rd respondent from time to time, is evident from the fact that they just sat over the matter and did not release even a single rupee to the petitioner. If this is the treatment accorded to a Government of India undertaking, one can easily understand the type of treatment, which the officials of that Department are exhibiting towards ordinary citizens.
It is to the effect that the Board issued Circular, dated 18.12.2002 clarifying that the activity of laying of cables and erection of equipment would attract service tax, since it falls under the technical assistance rendered by Consulting Engineer. The lack of bona fides on the part of the deponent of the counter affidavit is evident from the fact that though the very Board issued Circular dated 13.05.2004 stating that the Circular dated 18.12.2002 was issued by mistake and stands withdrawn, no reference was made to it. The attitude of the deponent is worse than that of a seasoned litigant. Unfortunately, it is on account of the irresponsible behaviour of such officers, that the entire Department gets bad reputation. By resorting to objectionable means, the Department is trying to enrich itself, at the cost of the petitioner. amount which remained unpaid, shall be refunded to the petitioner with interest, as provided for under the Act, within four (4) weeks - Decided in favour of assesse.
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2014 (12) TMI 1094
Waiver of pre deposit - Manpower Supply Services - employees deputed by Dell International from abroad - Held that:- Assignment letter has been issued by foreign company abroad and not by Dell International Services India Pvt. Ltd. Moreover, the agreement itself in paragraph relating ‘Compensation and Benefits’, the agreement says during the assignment, salary continues to be paid from the home location. Promotional increase, merits salary grade changes, etc. must follow the guidelines of the home location. The assignment letter issued by the company abroad and salary should be paid at home location would show prima facie that the foreign company has provided the ‘manpower supply service’. There is no exclusive relationship of employer-employee was maintained not only in Indian company but foreign company. The Tribunal finally took the view that stay has been granted on the ground of limitation. In this case, the entire demand is within the normal period. Therefore, revenue neutrality may not be appropriate for unconditional waiver of pre-deposit and stay against recovery. - Entire amount of service tax directed to be deposited - interest and penalty stayed - Stay granted partly.
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2014 (12) TMI 1093
Works Contract Service - commercial or industrial service - Held that:- Claim of the appellant that they have paid the entire tax liability in respect of ‘works contract service’ is required to be verified since there is a dispute on this issue. The liability of balance amount attributable to construction of staff quarters, students’ hostel etc. for Polytechnic College, we hold that the demand does not exist. Since there is a dispute regarding the payment of Service Tax claimed to have been made by the appellant, we consider it appropriate that matter has to be remanded to the original authority for the limited purpose of quantifying the correct amount and verifying the payment made by the appellant. In case of any discrepancy, the original authority shall intimate the same to the assessee for making payment. At this stage, learned counsel also undertakes that in case of any discrepancy, they would make payment of the same. As regards penalties, the appellant’s submission regarding non-liability or alternatively request to invoke Section 80 of Finance Act, 1994 may be considered by the original authority. - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 1092
Invocation of extended period of limitation - Mandap Keeper Service - Held that:- No doubt, in June 2006, decision in the case of Shree Gujarati Samaj Bhavan [2006 (6) TMI 470 - CESTAT NEW DELHI] was rendered and an argument can be advanced that the appellant who was monitoring the case law for entertaining bona fide belief should have taken note of this decision and started paying service tax. However, we take note of the fact that even the Govt. has chosen to amend the definition in 2007 and therefore it cannot be stated that appellant was not at all entitled to bona fide belief and extended period can be invoked. - appellant had informed the department by writing a letter giving reasons for non-payment and also taking note of the fact that appellant started paying service tax after the definition was amended, we consider that in this case extended period could not have been invoked. Accordingly, the entire demand cannot be sustained. - Decided in favour of assessee.
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2014 (12) TMI 1091
Condonation of delay - Delay in receipt of order - Order retained by acting partner who forgot about the letter - Held that:- A Limitation Act as is well-known is a statute of repose; and after the specified period of limitation is over, the other party to a cause of action is entitled to assume absence of a potential litigative trauma. Due diligence in prosecuting the litigation is also a valid criterion that could legitimately be considered in condoning delay in preferring an appeal. The reasons set out in the present application do not commend acceptance for grant of COD. Since no reasonable cause is shown, we find no justification for condoning the delay - Condonation denied.
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2014 (12) TMI 1090
Penalty u/s 77 & 78 - Payment of service tax as recipient of service - Held that:- Appellants did not to pay service tax in cash as they were entitled to avail Cenvat credit and the same was utilised. In such a situation, there was no need for the appellant to evade tax. When there is no need to evade tax, extended period could not have been invoked. In these circumstances, the penalty under Section 78 of the Act which is to be imposed when there is an intention to evade duty or suppression, fraud or collusion, mis-declaration etc. could not have been imposed. Accordingly, penalty under Section 78 of the Act is set aside. Coming to the penalty under Section 77, this penalty has been imposed for non-filing of returns. It is quite clear that the appellant has failed to file returns. Therefore, the penalty imposed under Section 77 of the Act is sustainable and the same is sustained. - Appeal partly allowed.
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2014 (12) TMI 1046
Refund claim - recovery of the refund already sanctioned to the appellant - no nexus between the input services and the output services - Held that:- Services in respect of which credit is proposed to be denied and refund sanctioned to be demanded back are held to be input services in the case of the very same assessee in previous final order. Both the issues are no longer res integra and therefore we consider it appropriate that the matter itself should be finally decided even though the learned AR strongly opposed it and submitted that only stay may be granted and decision an appeal may be postponed. When this Tribunal already has taken a view in respect of the very same services in two orders passed in respect of the very same appellant, one of which has been referred to above and the Hon’ble High Court also has taken a view in respect of the refund rejected on the ground that ISD registration should have been taken, I consider that it would be appropriate to decide the issue finally at this stage itself especially because the learned counsel submitted that this is a recurring issue and if a final order is not passed at this stage, there will be recurring litigation, it may not be proper to allow to continue - Decided in favour of assesse.
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2014 (12) TMI 1045
Construction of commercial complex - Appellants entered into joint development agreement with land owners, constructed commercial complex of their portion and sold the property on the basis of Power of Attorney executed in their favour by the landowners - Held that:- IT is not a case of self-service - Appellants have clearly provided service to the landowners – No infirmity in the demand – Order of the Commissioner (A) requiring the appellant to deposit the entire amount of service tax adjudicated is reasonable and does not require interference. However, in the interest of justice, we give another opportunity to the appellant to deposit the amount ordered by the Commissioner (A) within 10 weeks - Matter remanded back - Decided partly in favour of assessee.
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2014 (12) TMI 1044
Waiver of pre-deposit of Service Tax - manpower recruitment and supply agency services - appellant submitted that all labourers who were retrenched from the Public Sector Undertaknig-M/s.Hindusthan Copper Ltd. has formed the society, and supplies the labourers on daily wage 'basis to M/s.Hindusthan Copper Ltd. only.- Held that:- Prima facie we find that the Applicant had rendered services under the category of manpower recruitment or supply agency services. However, keeping in view the financial hardship expressed and taking into account that the Applicant is a society formed for the welfare of the labourers it would be prudent at this stage to direct deposit of the amount offered by them. Consequently, the Applicant is directed to deposit the amount of ₹ 2.00 Lakhs within a period of eight weeks - Partial stay granted.
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2014 (12) TMI 1043
Denial of refund claim - CENVAT Credit - refund claim has arisen because the appellants have accumulated credit since the CENVAT credit cannot be utilized by them in the absence of provision of service in domestic tariff area - No nexus between the output service and the input service - Held that:- prima facie the appellant is eligible for the credit of service tax paid on input services and the matter had not attained finality as regards the decision relied upon by the Revenue. Accordingly we consider that appellant has made out a prima facie case for complete waiver. - Stay granted.
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