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Service Tax - Case Laws
Showing 1 to 20 of 144 Records
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2014 (6) TMI 1001
CENVAT Credit - GTA Service - Whether the appellant is eligible for CENVAT credit of service tax paid on GTA service utilized in respect of transportation of their final product to the customers’ premises from the place of removal on FOR destination basis - the decision in the case of CCE GUNTUR Versus THE ANDHRA SUGARS LTD. [2013 (12) TMI 380 - CESTAT BANGALORE] contested, where it was held that till such amendment made effective from 1-4-2008 notwithstanding the clarification issued by the Central Government by way of their circular, transportation charges incurred by the manufacturer for ‘clearance of final products from the place of removal’ was included in the definition of input service - Held that: - the decision in the above case upheld - appeal dismissed - decided against appellant.
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2014 (6) TMI 962
Liability of Service tax - amendment with effect from 16th June, 2005 by which, prima facie, ‘Club’ or ‘Association’ appear to have been roped in - High Court held that the services rendered by any person to his client presupposes the element of commerciality and obviously this transaction must be involved with the third parties, as opposed to the members of the club reported in [2004 (6) TMI 625 - CALCUTTA HIGH COURT] - Apex Court dismissed the revenue's appeal as it need not want to express any final opinion with regard to the High Court judgment. Therefore, the learned Trial Court had no occasion to consider the applicability of the amended provisions.
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2014 (6) TMI 960
Waiver of pre-deposit - Demand of service tax alongwith interest and penalties - Ineligible Cenvat credit - Cenvat credit availed of service tax paid by the service providers in respect of the effluent/waste management in the factory premises - Held that:- the definition of the input service as enshrined in Rule 2(l) of the Cenvat Credit Rules, 2004 clearly envisages the eligibility to avail Cenvat credit of the service tax paid, inasmuch as unless the effluent treatment plant is in place, the manufacturing activity cannot commence is the law of the land today as regards the pollution control norms being implemented by the State Government. Therefore, the appellant is eligible to avail the Cenvat credit on service tax paid on such services rendered to them. - Waiver granted and recovery stayed
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2014 (6) TMI 955
Restoration of appeal - Dismissed for non-compliance - Assessee prayed that it may be permitted to deposit the balance amount of ₹ 37,00,000/- in instalments - Held that:- the applicant had not complied with the stay order till date. Besides, there is no provision for allowing to pay the balance pre-deposit amount in instalments, after dismissing the appeal. - Decided against the applicant
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2014 (6) TMI 894
Waiver of pre deposit - Photographic Service - Held that:- The appellant is ready and willing to make a pre-deposit of ₹ 30.00 lakhs as against ₹ 70.00 lakhs and would further submit that since the appellant is having a great chance of success in the appeal, which was dismissed for non-compliance of conditional order of pre-deposit dated 26-8-2013 by the Tribunal, the Tribunal may be directed to restore the appeal on its file and dispose of the same on merits. - Decided conditionally in favour of assessee.
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2014 (6) TMI 867
Waiver of pre-deposit of service tax - commercial and industrial construction services - Residential complex services - it was contended that, petitioner neither charged the service tax from the said Board nor the Board paid the amount on such account and, therefore, any direction to deposit the service tax would cause a serious financial hardship which the Tribunal ought to have considered at the time of disposal of the said application. - Held that:- It appears to the Court that the challenge is basically made on the wrong recording of the submissions made before the Tribunal as the Tribunal recorded that the petitioner admitted liability towards by service tax to the tune of Rs. 40 lacs and odd as per Chart produced before the Tribunal.
The petitioner, if felt aggrieved by such wrong recording, has to approach the same Authority promptly before it fades from its memory.
From the Chart filed before the Tribunal it appears that the West Bengal Housing Board have communicated the liability on the works contract service and the liability upon service tax at Rs. 40,81,074/-. Though the Tribunal should not have used the expression admitted but meaningful reading of the written submission as well as the Chart annexed thereto does not lead to any confusion that the liability is foisted upon the petitioner towards service tax to the tune of Rs. 40 lacs and odd.
The liability which is apparent and prima facie appears to be a liability of the contractor under the work order of the contract, the Tribunal in my considered view has not committed any illegality in directing the petitioner to deposit the amount shown in the said Chart after deducting the amount already paid by the petitioner. - The petitioner has volunteered in depositing Rs. 5 lacs with the department on account of service tax.
It is manifest from the materials placed from the record that the petitioner, who is working as a contractor would suffer greater hardship if the entire amount is directed to be deposited with the Service Tax Authority. This Court feels that to bring the equilibrium the petitioner is directed to furnish a Bank Guarantee to the said sum of Rs. 35,81,074/- within a week from date. - tribunal to dispose off the appeal expeditiously - Decided conditionally in favour of assessee.
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2014 (6) TMI 866
Penalty u/s 76 & 78 - Failure to remit tax - penalty u/s 76 and 78 simultaneously imposed - petitioner contends that, the amendment brought by introduction, of the Proviso, on 10.05.2008, has not been brought to the notice of the learned single Judge. - Adjustment in penalty imposed with already deposited - Held that:- it is seen that the assessing authority has taken into account the amendment, brought in. In page 4, paragraph 4, the penalty imposed under Section 76 is only till 10.05.2008; ie., till the date of amendment and the introduction of the proviso which bars imposition of penalty under Section 76 of the Act if penalty under Section 78 of the Act is imposed. In such circumstance, the contentions raised by the petitioner regarding the illegality in the levy of penalty cannot be sustained. - Decided against the assessee.
Adjustment of penalty already paid - Held that:- the amounts already paid have also been taken into account. Ext.P5 is an order issued, pursuant to the directions of this Court directing credit to be given to all payments effected by the petitioner. - credit of penalty already deposited to be given - decided in favor of assessee.
Adjustment of penalty levied i.e. to be reduced to the extent amount of service tax has been deposited earlier - Held that:- Such amounts cannot be adjusted, since, penalty under Section 78 of the Act has to be on the defaulted amounts subject to a maximum of double the actual amounts due. The petitioner having failed to remit any amounts as tax in the relevant years, no adjustments can be made in the penalty levied, on the basis of amounts paid subsequent to the relevant years.
Pray to keep the recovery proceedings in abeyance till the additional 4th respondent pays the amounts to the petitioner - Held that:- no direction can be issued to keep in abeyance the demand of tax assessed and penalty levied, on that ground, under Article 226 of the Constitution of India.
However, considering the fervent plea made by the learned counsel for the petitioner, the petitioner shall be permitted to pay the amounts due in instalments. - entire amount allowed to be deposited in five installments - Decided partly in favour of assessee.
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2014 (6) TMI 865
Condonation of delay - Disallowance of CENVAT Credit - Penalty u/s 11AC - Held that:- appellant assumes that there was no delay whatsoever in filing of the appeal, since the copy of the adjudication order was first served on the appellant on 09.11.2010, whereas the order was served on 28.04.2010. There is no explanation offered for the belated filing of the appeal. It is the clear case of Revenue that the order in original was served on the authorised representative of the appellant Shri Kushal Mani, on 28.4.2010. This fact was clearly pleaded by the jurisdiction Commissioner, to which there is no response by the appellant. - there is no justification offered for the clear delay in preferring the appeal - Decided against assessee.
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2014 (6) TMI 864
Waiver of pre-deposit - Service of order - Whether the service of the adjudication order through “Speed Post” is proper or not - Held that:- As held by the Hon'ble High Court of Punjab & Haryana in the case of Best Dyeing (2007 (10) TMI 422 - PUNJAB & HARYANA HIGH COURT), the service through “Speed Post” is not a proper service. The Hon'ble High Court has also observed that in the Finance Act, 2013, an amendment took place in Section 37C of the Central Excise Rules, 1944, wherein the service through “Speed Post” is incorporated as “not a valid service”. Therefore, I hold that the service through “Speed Post” is not a proper service during the impugned period. As the appellant filed an appeal before the Commissioner (Appeals) as soon as he received the adjudication order, therefore, the appeal filed before him is within the prescribed time - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 863
Service Tax demand - difference in the figures available in the income tax returns and the value of services declared in the ST-3 returns filed by the appellants - Held that:- It is observed that calculation of Service Tax liability based on the income tax return and ST-3 returns is the basic point of the Revenue. Filing documents and pointing of correct calculation in determining of Service Tax liability can always be agitated by the appellant before the appellate authority. Strictly speaking, the point agitated by the appellant before the first appellate authority cannot be considered as additional grounds on some other legal issues which were not taken up before the adjudicating authority.
Out of total duty demand of Rs.3,40,573/- confirmed by the adjudicating authority, an amount of Rs.1.5 lakh was deposited by the appellant at the time of admitting the stay. In the interest of justice and in view of the judicial pronouncements on the issue relied upon by the appellant, the matter is required to be remanded to the adjudicating authority to grant a personal hearing to the appellant to explain their case regarding quantification of duty and re-conciliation of difference between the income tax figures vis-a-vis those given in ST-3 returns.
Option of 25% payment of penalty admissible under Section 78 of Finance Act, 1994 has also not been extended to the appellant. Quantum of penalties under Section 76 of the Finance Act, 1994 will also depend upon the short levy, if any, recalculated and determined by the adjudicating authority. - matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 862
Adjustment of shortfall of tax with excess payment of service tax - demand based on difference ST-3 return - Demand of service tax u/s 11D - Enhancement in rate of tax - Held that:- The appellant's plea is that there was excess payment to the extent of about Rs.13 lakhs during October, 2003 and if this excess amount is taken into account, there would not be any demand against them under Section 11D. The appellant's counsel has vehemently pleaded that they have documents to prove that the entire amount collected from the customers as service tax during the period from October, 2002 to September, 2003 was paid to the Government. Since this is a matter of reconciliation, the same can only be done by the original adjudicating authority for which this matter would have to be remanded. - matter remanded back.
Difference in ST-3 return - Held that:- The appellant's contention is that the value of taxable service declared in the ST-3 returns also includes the charges received from other telecom service providers for interconnection on which no service tax is payable in terms of the Board's Circular No.91/2/07/ST dated 13.12.2000 - matter remanded back for verification.
Demand due to enhancement in tax rates - rate of service tax had been enhanced from the earlier 5% to 8% Adv. w.e.f. 14.05.2003 - Held that:- the service tax has been charged at the enhanced rate on the entire amount received during the month of May, 2003, which may be for the period prior to 14.05.2003. In view of this, this demand is also not sustainable and would have to be remanded to the original adjudicating authority for requantification, keeping in mind the principle that the enhanced rate of 8% Adv. effective from 14.05.2003 would be applicable only to the amount received for the taxable services provided w.e.f. 14.05.2003 and the enhanced rate would not be applicable for the amounts received, even if after 14.05.2003, for the services provided prior to 14.5.2003 - matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 835
Recovery of service tax - non receipt of notice / order - Conclusion of service of order - proper service of notice - change of address - Held that:- In this context it has to be noticed that the address of the 1st petitioner's Registered Office was also known to the respondents, as is evident from Exhibit P5. Exhibit P5 is a communication of the respondent addressed to the Registered Office long before the show cause notice itself was issued. The grievance projected by the petitioner is to be looked into on an analysis of the totality of the circumstances coming to fore. Section 83 of the Finance Act, 1994 contemplates that certain provisions of the Central Excise Act, 1944 would apply to that Act. Section 37C of the Central Excise Act deals with service of decisions, orders, summons, etc. Looking at Section 37C, one of the modes of service is registered post with acknowledgement due. There is no dispute that the Department had attempted service by that mode and if the Section provided only that, then the decision of the Hon'ble Supreme Court would squarely apply.
However, the provision specifically took into account the instances where service could not be effected as provided in clause (a); by clause (b), which mandates affixing a copy of the order, summons or notice on some conspicuous part of the place of business. This procedure admittedly has not been followed by the Department.
There shall be a stay of recovery proceedings for two months from the date of communication of the certified copy of the order, after which the issue shall be covered by the orders passed in appeal, if one is filed and on failure to do so, shall confer the authority with liberty to proceed for recovery - Stay granted.
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2014 (6) TMI 834
Leviability of Service Tax - consignment agency services - Clearing and Forwarding Agent Service - job of conversion of raw materials into finished goods on job-work basis - Held that:- Applicant are engaged by M/s. Tata Steel Ltd. for conversion of raw material into finished goods and deliver the same to various stockyards. For that the Applicant are paid a fixed conversion charges. We also find an agreement dated 30.03.1998 whereby the Applicant also agreed to provide the service of a consignment agency service to M/s. Tata Steel Ltd. and the remuneration fixed was at Rs.250/275 per M.T. It is the claim of the Applicant that even though they have entered into the said agreement with M/s. Tata Steel Ltd. they have not received any consignment agency charges from M/s. Tata Steel Ltd. beyond the conversion charges received from M/s. Tata Steel Ltd.
Case has been built against the Applicant as is clear from the impugned notices that the Applicant had received Rs.250/275 per M.T. as consignment agency charges from M/s. Tata Steel Ltd., but failed to discharge Service Tax as required, under the relevant provisions of Finance Act, 1994. - Applicant had not received the said amount of Rs.250/275 per M.T. even though an agreement to that effect had been entered between the Applicant and M/s. Tata Steel Ltd. In these circumstances, we are of the opinion that the Applicant could able to make out a prima facie case for total waiver of pre-deposit of dues adjudged. Accordingly all dues adjudged is waived and its recovery stayed during pendency of the Appeals - Stay granted.
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2014 (6) TMI 833
Demand of service tax - Rent a cab service - outdoor catering services - Invocation of extended period of limitation - Held that:- Admittedly, the show cause notice issued on 26.4.2006 pertaining to the period 8.7.04 to 3.2.2005 is barred by normal period of limitation. Further, the original adjudicating authority having granted the benefit of section 80 of the Finance Act to the appellant, has held that there was no suppression on the part of the assessee. If there is no suppression, I fail to understand as to how the longer period of limitation would get invoked. - Demand barred by limitation period - Decided in favour of assessee.
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2014 (6) TMI 832
Denial of CENVAT Credit - order beyond the scope of show cause notice - Input services - Refund claim - nexus with the output service - Held that:- Original adjudicating authority as well as the first appellate authority have considered the issue of eligibility of CENVAT credit in respect of services received by them and held that many services cannot be considered as input services since they have no nexus with the output service provided by them. This was not at all the ground taken in the show-cause notice and therefore both the lower authorities have travelled beyond the show-cause notice when they considered the issue of eligibility for CENVAT credit in respect of input service received by them - Therefore, the stand taken by both the lower authorities that certain services could not have been considered as input services cannot be sustained. Accordingly, the decisions of both the lower authorities holding that CENVAT credit of service tax paid on several services is not admissible cannot be sustained and is set aside - Matter remanded back.
Appeal filed by the assessee is allowed and the matter is remanded to the original adjudicating authority who shall consider whether the documents on the basis of which credit is taken are complete and other requirements of the Notification have been fulfilled in accordance with the grounds taken in the show-cause notice. - Decided in favour of assessee.
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2014 (6) TMI 831
Works Contract Composition Scheme - whether the appellant is eligible for ‘Composition Scheme’ under the ‘Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007’ for a works contract entered with M/s. Essar Oil Limited when some advance payments were received by the appellant prior to 01.6.2007 i.e. before introduction of Works Contract Service. - Extended period of limitation - Held that:- in respect of the services provided after 01.06.2007, which alone are regarded as ‘Works Contract Service’, the appellant had opted to pay tax at the Composition rate and not at the standard rate and was thus eligible for the composition benefit in respect of services provided after 01.06.2007. - Decision in the case of Nagarjuna Construction Company Limited vs. GOI [2012 (11) TMI 404 - SUPREME COURT] followed - Appellant has correctly availed the Composition Scheme for the Works Contracts for which the option and payment of service tax was exercised after 01.6.2007 and no service tax was paid before 01.6.2007 - Decided in favor of assessee.
The classification of services rendered prior to 01.06.2007 cannot affect the assessee’s entitlement to the Composition Scheme in respect of services rendered after 01.06.2007.
However, in respect of advance received prior to 01.06.2007 which tantamounts to provisions of service prior to 01.06.2007, the benefit of composition rate could not have been claimed, on the said advance and in view of our findings recorded herein above, Service Tax on the same was payable under the head of Commercial or Industrial Construction Services, as has been held by the respondent. As such, the appellants contention that they were entitled to pay tax at the composition rate on advances received prior to 01.06.2007 cannot be accepted.
Extended period of limitation - held that:- The alternative question whether the appellant would have been eligible for abatement computing the tax liability only advance payments is not being analyzed by us as we find that the entire demand on this count is hopelessly barred by limitation as the factum of the advance having been received prior to 01.06.2007 and in respect of the same tax having been discharged under the composition scheme was specifically stated in the Service Tax return. It is settled law that when there is no deliberate suppression of facts, the extended period of limitation cannot be invoked. The appellant had, in fact, clearly stated in the ST-3 return that Service Tax was not discharged in view of the fact that the service in the contract was an indivisible ‘Works Contract’. - demand set aside - Decided in favour of assessee.
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2014 (6) TMI 830
Business Exhibitions conducted abroad - Technical Inspections were done outside India - Import of services - reverse charge - service tax liability under Section 66A of Finance Act, 1994 - parties located abroad - Held that:- payments made by the appellant were in respect of exhibitions conducted abroad. Similarly it is seen that the Technical Inspections were done outside India. - as per the provisions of the Rule 3 (ii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, these two services are considered to be imported into India when the service provider is located abroad and service is performed in India. - Since, these services are performed outside India there is no service tax liability on the services in view of the above provisions - Following decision of Paramount Communication Ltd. Vs. CCE, Jaipur [2011 (9) TMI 762 - CESTAT, NEW DELHI] - Intas Pharmaceuticals Ltd. Vs. CST, Ahmedabad [2009 (5) TMI 73 - CESTAT, AHMEDABAD] - Decided in favour of assessee.
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2014 (6) TMI 800
Waiver of penalty invoking section 80 - courier service - delayed payment of service tax with interest - Held that:- The very fact that the matter went right up to the Supreme Court and finally it was decided against the assessee shows that assessee definitely felt that they had a case for non-payment of service tax. That being the position, I am unable to agree that there was willful intention on the part of the assessee not to comply with tax liabilities. - Decided against the revenue.
Decision on cross objection filed by assessee - Held that:- Even though the cross-objection has not been numbered and not listed, the learned advocate insisted that the same should be considered as an appeal filed by them. - in the interest of justice, tribunal proceeded with to deal with the issue raised by the learned counsel.
Extended period of limitation - disputing the demand in the cross objection - Held that:- in the returns filed, the details were not submitted and the appellants had given the details only on 9.8.2005. After the Supreme Court decision was received, it would be natural for the department to expect that assessee would pay the service tax but when they did not pay, notice has been issued. - Once the assessee is required to do assessments and pay the tax, it cannot be said that he is not aware of the obligation of self-assessment and the consequence of its failure to follow the law. - Decided against the assessee.
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2014 (6) TMI 799
Restoration of appeal - Demand of service tax, interest and imposition of penalty - Appeal was dismissed for want of COD clearance - Held that:- That being aggrieved by the impugned order dated 31.03.2008 passed by the ld.Commissioner, the Department has preferred an appeal as well as the Applicant. At that time, the Applicants choose to file an appeal against the confirmation of the part of the demand against them and elected not to contest that part of the order in favour of them by filing Cross Objection. Now, going through their application seeking condonation of the delay in filing the cross-objection, we do not find any valid reason or cause justifying the delay in filing the Cross Objection. Even in the application, the total number of delays occurred in filing the present Cross Objection, has also not been stated clearly nor any date chart is enclosed explaining the delay. It is barely asserted after narrating the facts that there has been delay in filing the Cross Objection, against the Department’s Appeal and the same be condoned. We agree with the contention of the ld.A.R. for the Revenue that the principle of condonation of delay is equally applicable to Cross Objection also filed under Section 86 of the Finance Act, 1994 - In view of the decision of the Hon’ble Supreme Court in the Living Media India Ltd. case (2012 (4) TMI 341 - SUPREME COURT OF INDIA), the Public Sector Undertaking cannot be given a special status in applying the principle/guideline applicable to others for condonation of delay - Decided against Revenue.
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2014 (6) TMI 798
Waiver of pre deposit - valuation - Steamer Agent’s Service - inclusion of various charges collected - Advance Manifest Charges (AMS), Bunker Surcharges (BS) and Currency Adjustment Factor (CAF) Charges from the Shippers in India and transferred the said amounts to the Overseas Liner - Business Support Service - Held that:- prima facie, the Applicant could able to show that Bunker Surcharges (BS) and Currency Adjustment Factor (CAF) Charges are nothing but the charges relating to Ocean Freight, which though collected by them on behalf of the overseas liner from the Indian shippers, but transferred in its entirety to the liners. Also, prima facie, we find that the ‘Collection/Commission Charges’ against these services rendered by the Applicant to the Overseas Liners, had been included in the ‘Steamer Agent’s Services’ and appropriate service tax were duly discharged by the Applicant. In these circumstances, the Applicant could able to make out a prima facie case for total waiver of predeposit of the dues adjudged. Accordingly, predeposit of all dues adjudged is waived and its recovery stayed during the pendency of the Appeal - Stay granted.
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