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Service Tax - Case Laws
Showing 61 to 80 of 262 Records
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2014 (12) TMI 960
Waiver of pre-deposit of service tax - Commercial, training and coaching services - Held that:- Prima facie, we find that the applicant has made out a strong case in respect of demand of ₹ 3 lakhs which is in respect of applicant providing computer education to the students in government schools as per the syllabus. Keeping in view the facts and circumstances, applicants are directed to deposit ₹ 1,25,000 within a period of 8 weeks in addition to the amount already deposited and report compliance. The pre-deposit of the remaining dues are waived and recovery stayed during the pendency of the appeal. - Partial Stay granted.
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2014 (12) TMI 959
Waiver of pre- deposit of service tax - Job work - Business Auxiliary Service - Materials and chemicals which are used during the processing are sold to the principal - Held that:- Admitted case of the appellants are that they are receiving the articles of aluminium from the principal and after undertaking certain processes which does not amount to manufacture, clear the same to the principal. As the applicants are receiving the aluminium articles from the principal, therefore, prima facie we find no merits in the contention of the appellant that the activity comes under ‘works contract’. during the argument the applicant admitted that the value of articles is approximately 60%. In view of the above as we find that the applicant failed to make a case for total waiver of pre-deposit of service tax - Partial stay granted.
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2014 (12) TMI 958
Waiver of pre-deposit of service tax - Real estate agents service - Held that:- The applicants agreed to purchase land for certain consideration from land owner. Subsequently entered into another agreement for sale of the same land, without getting it registered in their own name and without giving full consideration to the land owner, with the builder. There is no registered sale deed transferring land in the name of the present applicant. As per the definition of ‘real estate agent’ as provided under Finance Act, real estate agent means a person who is engaged rendering any service in relation to leasing or renting of real estate agent. In the present case, the activity undertaken by the applicant is real estate agency as the applicant had not transferred the land in his name before entering into an agreement for sale with the builder. Therefore, we find no merit in the contention of the applicant that it is a case of sale and purchase of land. Under these circumstances as we find that applicant failed to make out a case for total waiver of service tax. - Partial stay granted.
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2014 (12) TMI 957
Waiver of pre deposit - Reimbursement of transportation charges by CHA - whether the appellant was liable to pay Service Tax on the transportation charges reimbursed by the appellant to the CHA who actually paid transportation charges to transporter without paying service tax - Held that:- As per Rule 2(i)(d)(i)(B) of the Service Tax Rules, 1994, service tax on GTA services is required to be paid by the person who actually pays or is liable to pay the freight either himself or through his agent. In the present case, CHA is rendering several services to the appellant as per the invoices raised by CHA and produced at the time of arguments and one of the charges indicated in the invoices is payment of transport charges. There is no evidence on record that CHA is acting only as an agent of the appellant and that which paying freight charges to the transporter CHA was only acting as an agent. - Appellant has made out a prima facie case for complete waiver of the confirmed dues and penalties. Accordingly, it is ordered that there shall be stay on recoveries of the confirmed dues and penalties, till the disposal of the appeal - Stay granted.
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2014 (12) TMI 956
Restoration of appeal - Appeal dismissed for non compliance of pre deposit order - whether an interlocutory order passed would revive after restoration of the appeal earlier dismissed for default or otherwise - Held that:- The relevant principle is reiterated in the decision of the Delhi High Court in Radhey Bai v. Savithri Sharma - [1975 (2) TMI 112 - DELHI HIGH COURT]. There is unvarying judicial authority for this principle, spelt out in the judgment of the Delhi High Court. Accordingly, in the circumstances and in the right of the settled legal position we declare that the interim order dated 23-2-2012 directing waiver of pre-deposit of the balance adjudicated liability on condition of the deposit of ₹ 40 lakhs (the amount having already been deposited as noticed by the judgment of Punjab & Haryana High Court) has revived and shall be operative during pendency of the appeal. In this view of the matter this application is infructous and dismissed.
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2014 (12) TMI 920
Waiver of pre deposit - Erection, Commissioning or Installation Service - Works Contract Service - Held that:- S. Packiaraj, Proprietor of the applicant company in his statement stated that the nature of activity of their firm is installation of various electrical devices as per the requirement of various customers - Services rendered by them are supply of materials as erection commissioning or installation service. It is also noted that the applicants supplied the materials to the customers and therefore they have claimed the service under the category of works contract service for the period 01.06.2007 to 31.03.2010. Prima facie the demand of tax on the gross value is not sustainable. The classification of the service under the category of erection, commissioning or installation service or the works contract service would be decided after hearing at length at the time of appeal hearing. Hence, the applicants have failed to make out a strong prima facie case for waiver of predeposit of entire amount of tax along with interest and penalty. - Partial stay granted.
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2014 (12) TMI 919
General Insurance Services - During the relevant period i.e. from October, 2004 to March, 2007, the appellant had provided General Insurance Service to eligible employees, falling under Employees State Insurance Scheme (ESI Scheme) by way of providing medical and other related insurance service in exchange of premium at different rates. - Section 65(105) (d) of the Finance Act, 1994 - Held that:- Both sides now agree that by virtue of Section 100 of the Finance Act, 1994(No.2), the services rendered by the appellant are exempted from the purview of Service Tax for the relevant period. On a plain reading of the said provision, it is clear that the services rendered by the appellant for the period October, 2004 to March, 2007 are not be leviable to Service Tax. In the result, we do not find merit in the impugned order, accordingly, the same is set aside - Decided in favour of assessee.
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2014 (12) TMI 918
Waiver of pre deposit - Business auxiliary service - air travel agent's service - Held that:- The service rendered by the appellant herein is booking of passage for travel by air, which is squarely covered by the definition of 'air travel agent service' as defined in Section 65(4). As per the said definition, an air travel agent means any person engaged in providing any service connected with the booking of passage for travel by air and the taxable services means any service provided or to be provided by any person by an air travel agent in relation to the booking of passage for travel by air. In view of the above statutory definitions, any activity in relation to booking of passage by air travel agent would be covered under 'air travel agency service'. Whether the ticket is bought directly from the airline or through the GSA, the same would not make any difference. Therefore, the confirmation of demand under 'business auxiliary service' does not appear to be prima facie sustainable in law. This is the view taken by the Tribunal in the case of Zuari Travel Corporation and the appellant's own case cited supra. Hence the appellant has made out a strong case for waiver of dues. Accordingly we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (12) TMI 917
Waiver of pre-deposit of Service Tax - Availment of CENVAT Credit on pure service contract and scheme of abatement in other cases - maintenance and Repair, Erection, Commissioning and Installation services and Commercial or Industrial Construction service - Held that:- Applicant could able to show before us referring to sample work orders that there were pure service contracts and also contracts where services coupled with supply of material are provided. Prima facie, we find that the applicant had been claiming abatement under Notification No. 1/2006-ST dated 1/3/2006, in those cases only where alongwith services, they have supplied materials to their clients. The Ld.Advocate before us submitted that in their reply to the show cause notice, they have enclosed a statement, contract wise, explaining elaborately that in relation to composite contracts, they have availed abatement but did not avail CENVAT Credit; whereas for contracts rendering services only, they availed CENVAT Credit on the input services. It is his submission that Ld. Commisssioner, nowhere, has recorded any contrary observation to the said statement. Regarding the eligibility of CENVAT Credit on Pure service contract and abatement on composite services under Notification No. 1/2006-ST dated-1/03/2006 simultaneously, prima facie, we find it is covered by the decision of this Tribunal in the case of SMP Constructions Pvt. Ltd (2009 (6) TMI 80 - CESTAT, AHMEDABAD). In the result, we are of the view that the applicant could able to make out a prima facie case for total waiver of dues adjudged - Stay granted.
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2014 (12) TMI 916
Levy of service tax on management, maintenance or repair service prior to 1.6.2007 - activity are in the nature of works contract - Held that:- Prima Facie it is incorrect to say that services rendered by them prior to 01.06.2007 will not be liable to service tax merely because they could be classified under works contract service with effect from 01.06.2007, because prior to 01.06.2007 the classification of their services will be as per the provisions existing then.
As regards the main contention of the appellants that the services rendered to IIT Kanpur were not liable to service tax is view of the retrospective amendment referred to above, it is to submit that the said retrospective amendment is applicable only to non-commercial Government buildings. It is obvious that the buildings of IIT Kanpur are not Government buildings because IIT Kanpur is neither ‘government’ nor any Department thereof. Obviously then the benefit of said retrospective amendment is not available to the appellants. While detailed analysis of all the facts and appellants' contentions can be taken up only at the time of final hearing, it is seen that the appellant have not been able to make out a prima facie case to justify waiver of pre-deposit of service tax demanded and interest leviable thereon. - entire service tax directed to be deposited - however interest and penalty stayed - stay granted partly.
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2014 (12) TMI 915
Evasion of duty - Goods transport agent service - Invocation of extended period of limitation - Malafide Intention - Held that:- It is the credit of Service Tax paid which is available to the assessee and not credit of Service Tax payable. Admittedly the appellants have paid the Service Tax on the GTA services availed during December, 2004 though they were not liable to pay the same. Having paid the Service Tax, they are entitled to the credit of the same. It is to be noted that no objection was raised by the Revenue at the time of payment of Service Tax by the appellant. The circumstances for imposing penalty and for invocation of longer period are identical. The original adjudicating authority having held that there was no mala fide intention on the part of the assessee to evade duty, I really fail to understand as to how the longer period of limitation, which is primarily based on mala fide intention, would be available to the Revenue. The demand having been raised after the normal period of limitation, is barred by limitation - Decided in favour of assessee.
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2014 (12) TMI 914
Denial of refund claim - period of limitation - input services used in export of goods -Notification No. 41/2007, dated 6-10-2007 - Held that:- Under the Notification No. 41/2007 refund was to be filed within sixty days from date of export of the goods. This period of sixty days was increased to one year under Notification No. 17/2009, dated 7-7-2009. The Commissioner (Appeals) has granted the benefit of Notification 17/2009, dated 7-7-2009 by treating time-limit of one year for granting the refund. I do not find any infirmity in this finding of Commissioner (Appeals). Officers of Department are governed by the provisions of Acts/Rules and Notification issued under Act/Rules. Therefore Commissioner (Appeals) has rightly invoked provisions of Notification Nos. 41/2007 and 17/2009, dated 1-7-2009 in deciding the appeal - Decided against assessee.
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2014 (12) TMI 913
CENVAT Credit - appellant has taken Cenvat credit on the basis of proper cenvatable documents but during the course of Audit it was observed that the service providers did not pay the required service tax - Held that:- It is evident from the provisions contained in Rule 4(7) of the Cenvat Credit Rules that Cenvat credit in respect of input services has to be allowed for the service tax paid or payable as indicated in the invoice, bill or, challan referred to in Rule 9 of the Cenvat Credit Rules. There is no provision in the Cenvat Credit Rules that if any amount of service tax shown to have been paid or payable in the duty paying document is not paid by the original manufacturer or the service provider, then Cenvat credit taken is required to be varied at credit taking end. To clarify this matter further it is observed that C.B.E. & C. under Circular No. 766/82/2003-CX., dated 15-12-2003, issued vide No. 201/45/43-CX, has given clarification and made amply clear that the recipient of the inputs/input services should not be asked to reverse the Cenvat credit availed in such cases so long as the bona fide nature of the consignee’s transaction is not in dispute. In the case of the appellant there is no evidence that the transaction between the service provider and the service recipient was not bona fide. At the time of receiving of duty paying document appellant cannot be expected to verify whether proper service tax has been paid by the appellant or not. In view of the above after allowing the stay applications/appeals themselves are taken up for final disposal. - For the reasons recorded above when service tax credit has been taken on the basis of valid documents by the appellant the credit is required to be allowed in view of Rule 4(7) of the Cenvat Credit Rules which has also been clarified under C.B.E. & C. Circular dated 15-12-2003 by the Revenue - Decided in favour of assessee.
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2014 (12) TMI 912
Penalty u/s 76 & 78 - Non receipt of service tax from ICICI - Held that:- Appellant is providing services relating to granting of loans for and on behalf of ICICI Bank - In view of the above charging of appellant’s activities to service tax under Business Auxiliary Services was prone to different interpretations. Under the circumstances, once the entire amount of service tax along with interest was paid by the appellant and as the issue was disputed and prone to different interpretations, no motive can be assigned to the appellant to evade any service tax. Appellant, therefore, had a reasonable cause for not discharging duty liability in time due to disputable nature of the service. Therefore, it is a fit case for non-imposition of penalties under Sec. 76 & 78 as per the provisions of Sec. 80 of the Finance Act, 1994 - Decided in favour of assessee.
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2014 (12) TMI 911
Waiver of pre deposit - Consulting Engineer Service - services provided by branch situated abroad - Held that:- As per the representative agreement and letter shown, the consulting engineer stationed abroad cannot be considered as a branch and he is nothing but an employee of the appellant. If he is an employee, prima facie the provisions of Section 66A(2) of the Finance Act, 1994 which required a branch to be treated as separate person may not be applicable. Further we also note that in para 68 of the order wherein the Commissioner has reached conclusion that the appellants have branches abroad, there is no clear finding that the persons who were stationed abroad were part of the branch but not employees. - appellant has made out a very strong case on merits on a prima facie basis - on revenue neutrality also the appellant has a strong prima facie case - Stay granted.
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2014 (12) TMI 876
CENVAT Credit - Goods Transport Agency Service - Held that:- Rule 3 of the Cenvat Credit Rules, 2004 pertains to Cenvat credit. Sub-rule (1) thereof allows the manufacturer or purchaser of final products or provider of output service to take credit of Cenvat of various duties specified therein. Sub-rule (4) of Rule 3 of the said Rules provides that the Cenvat credit may be utilized for payment of various duties specified in clauses (a) to (e) thereof; clause (e) pertains to “service tax on any output service”. A combined reading of these statutory provisions would, therefore, establish that though the assessee was liable to pay service tax on G.T.A. Service, it could have utilized Cenvat credit for the purpose of paying such duty. In view of the decisions of Punjab and Haryana High Court and Delhi High Court noted [2010 (5) TMI 608 - PUNJAB AND HARYANA HIGH COURT], we do not find any error in the view of the Tribunal - Decided against Revenue.
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2014 (12) TMI 875
Waiver of pre-deposit of service tax, interest and penalty - Input service credit on the medical insurance paid for the employees - for the period prior to 1.4.2011 input service credit on insurance premium paid for employees is admissible for input service. Therefore, the applicant has made out a case for complete waiver of pre-deposit. Accordingly, we waive the requirement of entire amount of service tax, interest and penalties and stay recovery thereof during the pendency of the appeals. - Following decision of KPMG Vs. Commissioner of Central Excise, New Delhi reported in [2013 (4) TMI 493 - CESTAT NEW DELHI] - Stay granted.
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2014 (12) TMI 874
Waiver of pre-deposit of penalties u/s 77(2) - Held that:- during the relevant period, there was no provision under the Finance Act, 1994 to impose personal penalties on the directors of the company and the said provisions came into force with effect from 10.05.2013, therefore, personal penalty is not imposable - Following decision of Diwan Rahul Nanda [2012 (7) TMI 470 - CESTAT, MUMBAI] - Stay granted.
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2014 (12) TMI 873
Waiver of pre deposit - Man power recruitment services - Held that:- agreement, between the appellant and their foreign entity, who has sent employees to the applicant but the agreement between the parties clearly shows that the employees which are sent to the applicants are on principal to principal basis and the applicant is having full control over the employee and all the salaries of the employees are paid by the applicant directly to the employee only. - prima facie we are of the view that the applicant does not fall under the category of manpower recruitment service under the reverse charge mechanism. Therefore, the amount paid by the applicant is sufficient in compliance with Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994, we waive the requirement of pre-deposit of balance amount of service tax, interest and penalty and stay recovery thereof during the pendency of the appeal. - Stay granted.
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2014 (12) TMI 872
Maintainability of appeal - Non compliance of pre deposit order - Held that:- appellant has already paid a sum of ₹ 3.67 lakhs and same has been appropriated in the impugned order, therefore appellants are not required to make any further pre-deposit. Accordingly, we hold that the appeal is maintainable. - Decided in favour of assessee.
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