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Service Tax - Case Laws
Showing 41 to 60 of 262 Records
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2014 (12) TMI 1042
Waiver of pre deposit - demand based on original return ignoring the revised return - Port Service, Goods Transport Agency Service - Held that:- Rule 7B itself does not require any reason to be given while filing the revised return. In fact it is not required since the assessing officer has power to scrutinize the report and call for records and documents in case he has any doubts or needs any clarification. Therefore when a revised return is filed, the proper course would have been to call the assesses and ask them to explain why the difference has arisen and why the taxable value was -not shown correctly. Instead the revised return has been ignored and the tax demand has been confirmed ignoring the revised return completely. We feel that there is no case for a tax demand in this case at all. Accordingly we consider that the appellant has made out a case for complete waiver of pre-deposit and stay against recovery - stay granted.
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2014 (12) TMI 1041
Waiver of pre deposit - ineligible benefit of Notification No. 12/2003-S.T - Held that:- There is no dispute as to the fact that the appellant herein has been raising separate bills for the service rendered and for the materials supplied. The appellant has been claiming of the benefit of Notification No. 12/2003-S.T. which clearly talks about the availment of benefit if the materials are billed separately. Prima facie, we find that the decision of the Tribunal in the case of Sobha Developers Ltd. (2009 (9) TMI 342 - CESTAT, BANGALORE) may be applicable. Accordingly we find that the appellant has made out a prima facie case for the waiver of pre-deposit of the amounts involved. Application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeals. - Stay granted.
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2014 (12) TMI 1040
Commercial Training and Coaching service - Bar of limitation - Held that:- demand pertains to the period September, 2003 to January, 2005. During this disputed period, Respondents were having valid permission from Chhattisgarh Government for functioning as University. When State Government itself granted them permission for running a University, there cannot be any intention of evasion of Service Tax by the Respondents. We therefore do not find any infirmity in the impugned Order-in-Appeal - Decided against Revenue.
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2014 (12) TMI 1039
Waiver of pre deposit - Reimbursible expenses - Excess pension amount deducted - Tax on House Rent Allowance (HRA) - Held that:- demand is based on the estimates prepared by M/s. RINL (service recipient) towards various expenditure including salary for the personnel of CISF (Appellant) for ensuring that security services are available. This demand also included medical expenditure incurred by M/s. RINL on CISF. The Department has contended that it is reimbursible expenditure. Prima facie, we find that this cannot be considered as reimbursible expenditure since in the first place this expenditure are not incurred by CISF at all. Therefore, prima facie, appellant has made out a case.
Second demand is approximately ₹ 10.61 lakhs on the ground that the appellant has collected excess pension charges from M/s. RINL. Learned counsel submits that in respect of the amount relating to subsequent period from 1-4-2009, Service Tax has been discharged. The dispute is only for the earlier period during which the Service Tax was not paid. Since there was no liability on the service prior to 1-4-2009, we find that this claim of the appellant appears to be justifiable.
The third demand is approximately ₹ 17 lakhs. M/s. RINL provides accommodation to CISF employees and in this case, no HRA is paid to CISF. Since there is no question of receipt of HRA by the appellant, there is no question of payment of Service Tax on the notional value of the HRA which is presumed to be received by the appellant for reimbursement to CISF. Therefore, in this case also, we do not find that it can be covered under reimbursible expenditure or under the category of payment for the service rendered.
Prima facie, the appellant has made out a case. Accordingly, there shall be waiver of pre-deposit and stay against recovery of the adjudged dues during pendency of the appeal. - Stay granted.
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2014 (12) TMI 1038
Mid-day Meal Scheme - Exemption order No. 2/2/2011-Service Tax, dated 8-8-2011 - Outdoor catering services - Held that:- By an ad hoc exemption order No. 2/2/2011-Service Tax, dated 8-8-2011, the Central Govt. in purported exercise of powers under Section 93(2) of the Act granted exemption from the liability to tax in respect of outdoor catering service provided by a NGO registered under any Central Govt. Act or State Act, or centrally assisted Mid-day Meal Scheme, during the period 10-9-2004 to 2-10-2010. That the assessee fulfils the requirements for entitlement to the exemption under the Notification dated 8-8-2011, is not contested by Revenue. - impugned adjudication orders are set aside - Decided in favour of assessee.
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2014 (12) TMI 1037
Business Auxiliary Service - Delivery of money to the ultimate beneficiary in India as per directions given by their principal representative for which the respondents get commission - whether the activity is liable to service tax under Section 65(19) of the Finance Act, 1994 - Held that:- Tribunal in case of Paul Merchants Ltd. reported in [2012 (12) TMI 424 - CESTAT, DELHI (LB)] by majority decision has held that advertisement and sale promotion by agent/sub-agent is to be treated as export of the service and therefore not liable to the service tax. Following the said decision we are of the view that activity undertaken by the respondents are not liable to service tax being the export of service. Accordingly we uphold the Order-in-Appeal - Decided against Revenue.
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2014 (12) TMI 1007
Waiver of pre deposit - transportation of iron ore from top to bottom and from one plot to another plot in the mining area - Held that:- Prima facie appellant has made out a case for waiver and in our opinion, the activity cannot be considered as a mining service. When the activity is undertaken in the mining area and it has to be treated as mining work only and he relies on Mining Act as done by the adjudicating authority. It is appropriate that in this case the requirement of predeposit is waived and stay is granted for 180 days from the date of this order and we do so - Stay granted.
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2014 (12) TMI 1006
Waiver of pre deposit - Supply of Tangible Goods service - Held that:- In this case, in the absence of any evidence to show that wagons were used for transportation of goods of other clients also, it cannot be said that there is an element of supply of wagons to the railways. The wagons are exclusively used for transporting the appellant’s goods and because the appellants have invested in the wagons they get a discount in the transportation. The transaction is similar to the case where a person may supply a crane to the service provider who mines ores for him and thereafter get some discount in the cost of mining. Can it be said that discount amount has to be treated as consideration for providing the crane. In fact it would be the additional consideration flowing from the receiver of service to the provider of service in the form of depreciation and interest element on the crane and it cannot be said that it amounts to SOTG Service. We are not convinced at this stage that revenue has been able to make out a case for levy of service tax under SOTG service against the appellant. Accordingly, the requirement of predeposit is waived and stay against recovery is granted for a period of 180 days from the date of this order - Stay granted.
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2014 (12) TMI 1005
Construction activity - primarily for commercial or industrial purposes or not - Held that:- Prima facie, we are not inclined to the view that activities of HAFED or Haryana Seeds Development Corporation are non-commercial. Further there is neither any pleading or material on record nor any submission by the petitioner before us to identify any error in the adjudication order in so far as the valuation or classification recorded by the adjudicating authority in respect of site formation. - stay granted partly.
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2014 (12) TMI 1004
Waiver of pre-deposit of service tax - renting of immovable property service - applicant contend that they had already paid the service tax under the renting of immovable property on the rent received by the applicant - However, Revenue wants to levy service tax even on the deposit received by the applicant in respect of shops under the rent of immovable property service - Held that:- prima facie as Revenue wants to levy service tax under the category of renting of Immovable property service on the deposit received by the applicant, hence the applicant had made out a strong case for waiver of pre-deposit. The pre-deposit of the remaining dues is waived and recovery thereof stayed for hearing of the appeal - Stay granted.
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2014 (12) TMI 1003
Waiver of pre deposit - Self adjustment of excess service tax - whether the payment/adjustment of Service Tax for the period 2007-08 from the excess payment of ₹ 13,25,576/- made by the appellant during 2005-06 is permissible or not - Business Auxiliary Service - Held that:- Rule 6(4A) of the Service Tax Rules, 1994 contains the provisions allowing an assessee to adjust the excess/short payment of Service Tax suo motu. It does not contain any restriction or time limit for making such adjustments. Secondly, appellant has also relied upon favourable decisions of this Bench on this issue holding that such adjustments can be made by a Service Tax assessee. A prima facie case for complete waiver of the confirmed dues and penalties has thus been made out by the appellant. Accordingly, there will be stay on recoveries of confirmed dues and penalties imposed upon the appellant till the disposal of the appeal. - Stay granted.
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2014 (12) TMI 1002
Waiver of pre deposit - Insurance service - whether the credit of Service Tax paid on insurance services is admissible to the appellant or not - Held that:- both the factory premises and the adjoining plot are owned by the appellant for which the insurance services have been availed. There is no evidence brought out on records that the vacant plot is owned by any other individual other than appellant. Insurance Services have also been availed by the appellant for which the premium is also paid by them. A case of complete waiver has prima facie been made by the appellant. Accordingly stay is granted to the appellant against recovery of confirmed dues and penalty imposed upon the appellant till the disposal of the appeal. - Stay granted.
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2014 (12) TMI 1001
Denial of refund claim - non-fulfillment of the procedural requirements - Held that:- It is observed from Notification No. 9/2009-S.T. that refund of service tax under this notification is entirely on the basis of fulfilment of procedures and conditions. It has been observed by Commissioner (Appeals) in para 7 of the OIA dated 14-6-2012 that appellant was asked to submit certain documents within 3 days and till the decision taken by the first appellate authority such documents were not furnished. When such a casual approach is shown by the appellant then it is difficult to appreciate that substantial procedural requirements required under Notification Nos. 9/2009-S.T. and 17/2011-S.T. can be considered to have been complied. There is no justification in interfering with the order dated 14-6-2012 passed by the first appellate authority which is accordingly upheld - Decided against assessee.
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2014 (12) TMI 1000
Waiver of pre deposit - activity of painting of residential premises and machinery - commercial and industrial construction services - Held that:- Show cause notice has been issued to the appellant herein demanding Service Tax on the ground that that he was engaged in painting of residential premises, copper slag work and painting of machinery in the factory and the Revenue authorities sought to classify these services under ‘commercial or industrial construction services’. We find from the definition of the ‘commercial or industrial construction services’ that the services that get covered under the said definition, would primarily be associated with the premises which are used for commerce or industry. In the case in hand, it is undisputed that the appellant has been engaged in the services of painting of residential premises, which, in our prima facie view, may not fall under the category of ‘commercial or industrial construction services’. We find that the appellant has made out a strong prima facie case for complete waiver of pre-deposit of the amounts involved. - Stay granted.
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2014 (12) TMI 999
Restoration of appeal - Non complaince of pre deposit order - Technical Inspection and Certification Service - Held that:- Appellant herein is a nodal agency for the Government of Gujarat as regards Gujarat Energy Development, more specifically for wind-mills. The appellant herein charges some amount as transfer fee for transferring developed wind farm to the clients. Revenue’s contention is that, such transfer fee is liable to be taxed under the head ‘Technical Inspection and Certification Service’. At this juncture, we find that the services rendered by the appellant and charging transfer fee, prima facie, may not get covered under ‘Technical Inspection and Certification Service’, as the appellant herein has, in our view, rendering a statutory function. This is our prima facie view and we have not considered the entire issue in detail. Accordingly, since the first appellate authority has dismissed the appeal for non-compliance, we are unable to go into the merits of the case. In order to meet the ends of justice, it would be appropriate that first appellate authority is given a chance to decide the issue on merits. - Matter remanded back - Appeal restored.
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2014 (12) TMI 965
Cargo Handling Services - Whether the Appellant were eligible to claim the benefit of exemption from the levy of ‘Cargo Handling Services’ in relation to the cargo meant for export - Held that:- Assessee could not adduce sufficient evidences to establish that the cargo which they handled, were meant for export. Consequently, the demand was confirmed by the ld. Commissioner. Now, the Appellant claim that they could procure necessary documents, to establish that the cargo in question for the relevant period, were meant for export, and also they would place necessary documents/certificates in support of their claim. However, we find that the said certificate and documents relate to 56% of the demand. The ld. Advocate for the Appellant submits that they are now in the process of procuring the documents for the remaining quantity of goods. Therefore, in the interest of justice, we are of the view that the matter may be remanded to the ld. Adjudicating Authority for considering the evidences afresh, that would be placed by the Appellant - Matter remanded back - Appeal disposed of.
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2014 (12) TMI 964
Consulting Engineer’s Services - Executing the work of construction of mess, quarters etc. for the staff of Assam Rifles - Held that:- Dispute centers round the services rendered by the Appellant to the Director General of Assam Rifles in executing the works of construction of quarters and mess for the staff of Assam Rifles. We find from the submission of the ld. Advocate for the Appellant that the issue is highly debatable and accordingly, the same ought to be examined in detail, before arriving at a conclusion as to whether the services rendered by the Appellant to the Director General of Assam Rifles would fall under the category of ‘Consulting Engineer’s Services’ or otherwise. Considering the fact that the Appellant is a public sector undertaking of Government of India, it is appropriate to remit the case to the ld. Commissioner (Appeals) for deciding the issue on merits, without insisting any predeposit. In the result, the impugned Order is set aside, and the matter is remitted to the ld. Commissioner (Appeals) for deciding the issue afresh. - Decided in favour of assessee.
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2014 (12) TMI 963
Waiver of pre-deposit - Mining Services - transportation of lignite from the mines to the power plant under the GTA services and also for transportation of fly ash - Held that:- agreement between two parties for the mining and transportation as individual expenses can not be considered to be falling under one heading i.e. ‘Mining Services’. This is our prima-facie view. This our prima-facie view is fortified by the decision of the Tribunal in the case of R.K. Transport Company (2012 (3) TMI 271 - CESTAT, NEW DELHI). On perusal of the circular which has been relied upon by the adjudicating authority, we also find that the said circular specifically talks about vivisection of the contract for the purposes of charging under the of Cargo Handling Services and Transportation Services - appellant has made out a prima-facie case for the waiver of pre-deposit of the amounts involved. Accordingly, application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of the appeal. - Stay granted.
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2014 (12) TMI 962
Whether the appeal filed before the Commissioner (Appeals) was barred by limitation or otherwise - Held that:- It is the claim of the Appellant that even though they were communicated with the Order-in-Original on 19.01.2011 by hand-delivery; but the certified copy was received by them on 04.04.2011. Therefore, the date of receipt of the certified copy of the impugned Order-in-Original be considered as the date of communication of the Order and the limitation should start from that date. I do not find force in the argument of the ld. FCA for the Appellant. Since the Order was communicated to them on 19.01.2011, the appeal could have been filed on the basis of such Order, and it cannot be construed that the date of communication of the certified copy thereof, be considered as the date of communication for the purpose of computation of the time-limit of three months, as prescribed under Section 85(3) of the Finance Act, 1994. - appeal dismissed.
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2014 (12) TMI 961
Waiver of pre deposit - secondment of employees - Manpower Recruitment or Supply Agency Service - Business Auxiliary Service - Held that:- Manpower Recruitment or Supply Agency service allegedly received by the appellant, that issue also stands concluded by the judgment of the Gujarat High Court in C.S.T. vs. Arvind Mills Ltd. reported in [2014 (4) TMI 132 - GUJARAT HIGH COURT] whereby the High Court confirmed the decision of the Ahmedabad Bench of this Tribunal in Arvind Mills Ltd. vs. C.S.T., Ahmedabad reported in [2013 (10) TMI 821 - CESTAT AHMEDABAD]. There are other decisions of this Tribunal in Paramount mount Communication Ltd. vs. C.C.E., Jaipur - [2013 (3) TMI 134 - CESTAT NEW DELHI]; Volkswagen India Pvt. Ltd. vs. C.C.E., Pune I reported in [2013 (11) TMI 298 - CESTAT MUMBAI] and of the Principal Bench in BMW India Pvt. Ltd. vs. C.S.T. ,Delhi reported in [2013 (10) TMI 585 - CESTAT NEW DELHI] which enunciates the same principle of no liability to tax on reimbursement of the expenses and salaries of employees seconded by the principal employer to a subsidiary employer in India, for effective execution of the principal employers business.
In so far as Business Auxiliary Service is concerned, the appellant claims that it amounts to export of taxable service and is entitled to immunity to service tax under provisions of the Export of Service Rules, 2005.This plea stands concluded by the Larger Bench decision of this Tribunal in Paul Merchants Ltd. vs. C.C.E., Chandigarh reported in [2012 (12) TMI 424 - CESTAT, DELHI (LB)] as well as the decision in Simpra Agencies and Simpra Agencies Pvt. Ltd. reported in [2014 (6) TMI 354 - CESTAT NEW DELHI]. We grant waiver of pre-deposit in full and stay all further proceedings for realization of the adjudicated liability, pending disposal of the appeal - Stay granted.
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