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Service Tax - Case Laws
Showing 21 to 40 of 144 Records
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2014 (6) TMI 797
Waiver of predeposit - mining and post mining services - Cargo Handling Services - Mining of Mineral Oil or Gas Services - transportation of iron ore at their iron and manganese mines, hiring of rock-breakers with excavator at the mines, hiring of machineries for shifting/removal of over-burdens and excavation/loading, shifting and unloading - shifting, loading and transportation and removal of ROM and over-burdens to the fines/sized ores from different filling mines to railway siding - Held that:- Analyzing the relevant contracts of loading and transportation works and the representative invoices, it is observed that the distances required to be covered, was very short, i.e. within 2 to 8 Kms., for which the charges varied from Rs.22 to Rs.50 per MT. Although the transportation is one of the link of the contracts, but it does not constitute the essence of the contracts, and the essence of the contracts is handling of iron ore. Consequently, following the Circular No.B11/1/2002-TRU dated 01.08.2002 issued the Board, demand is confirmed - and applicant could not able to make out a prima facie case for total waiver of predeposit of the dues adjudged - stay granted partly.
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2014 (6) TMI 796
Management, maintenance or repair service - Exclusion of value of material - appellant disclosed 30% of the consideration received, assuming that 70% of the consideration received (asserted by the appellant to be on the basis of an 'industry norm') to represent the value of goods and raw materials deemed to have been sold to the recipient of the service. - Held that:- wherever there are complex transactions including components of service and sale of goods (actual or deemed), the taxable value for levy of service tax would be only the component of service but excluding the component of sale of goods. Accordingly, on this interpretation of the provisions of Section 67 the value of goods sold or deemed to have been sold, requires to be excluded from the taxable value for computation of service tax liability. Consequently, provisions of Notification No. 12/2003 merely explicate the inherent intent of Section 67 of the Act - appellant is entitled to claim exclusion of the value of the goods and raw materials claimed to have been sold to the recipient of the service as part of the management, maintenance or repair agreements and works executed in pursuance thereof.
Since the adjudication order proceeds on the flawed premise and presumes that the value of goods and material deemed to have been sold is not liable to exclusion either under the provisions of Section 67 or qua Notification No. 12/2003, the order invites invalidation and is accordingly quashed. The matter is however, remitted to the adjudicating authority for denovo disposition - Decided in favour of assessee.
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2014 (6) TMI 795
Denial of refund claim - Exemption of CHA and Port Services by virtue of Notification No. 41/2007-ST - Commissioner (Appeals) allowed refund claim - Held that:- refund under Notification No. 41/2007-ST cannot be denied by reviewing the correctness of the Service Tax payment at the end of service providers - Following decision of Commissioner of Central Excise, Indore Vs. Anant Commodities Pvt. Ltd. & others reported in [2009 (10) TMI 229 - CESTAT, NEW DELHI] it is concluded that the Commissioner (Appeals) has rightly allowed the refund claim in full having considered the Board's circular dated 21.12.2009 - decided against Revenue.
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2014 (6) TMI 768
Adjustment of excess payment of service tax - CENVAT Credit - Held that:- if during a particular month there is excess payment of tax, it does not mean that the excess paid amount had been recovered from the customers as the service tax has been paid on the estimated bill collection amount and the exact amount of service tax payable is determined only when the accurate figures of collection against the bills are available. When this is the position, there is no reason why the excess payment against a particular month cannot be adjusted against short payment during the other months, as there is no unjust enrichment involved. - Decided in favour of assessee.
Regarding Cenvat Credit - Held that:- the bulk of the Cenvat credit is in respect of the service tax paid on the services of repair and maintenance, security, sales and advertisement, installation and commissioning, rent a cab service, air travel agents and rail travel agents etc. received by them all of which are covered by the definition of input service and, therefore, there is absolutely no reason for denying the Cenvat credit in respect of the same - Credit allowed - decided in favor of assessee.
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2014 (6) TMI 767
Waiver of pre deposit - Demand of service tax - Held that:- appellant had deposited an amount as has been claimed and appropriated by the Adjudicating Authority. On perusal of records, we find that the issue is an arguable one and needs to be gone into details as to whether the appellant is liable to tax on receiving/providing various services during the material period. Since the appellant is contesting the issue on merits, we consider the amount deposited by the appellant is enough deposit to hear and dispose the appeal on merits - Stay granted.
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2014 (6) TMI 766
Demand of service tax - Technical testing and analysis service - testing of the samples received from job workers who are manufacturing the goods for the respondent on job work basis and the samples received from their sister concerns abroad for testing - Held that:- As regards the testing of the samples received from the job workers, these samples are from the goods which were being manufactured by the job workers for the respondent on job work basis and there is nothing on record to show that the respondent had charged any amount for testing the samples from the job workers. Therefore, we agree with the findings of the Commissioner (Appeals) that the respondent have tested their own goods and, as such, have not provided any service to the job workers and, hence, no service tax would be chargeable. Even in the grounds of appeal in the Revenue's appeal, it is not mentioned as to whether the respondent had charged any amount from the job workers for testing of the samples and if so, how much amount had been charged. - Decided against Revenue.
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2014 (6) TMI 765
Denial of refund claim - Export of services - use of input services - Health Club and Fitness Centre, Management Consultants, Business Auxiliary Services, Transport of goods by road, Advertising Space or Time Legal Consultancy Service - non fulfillment the conditions of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.5/2006-CE, dated 14.03.2006 - Held that:- the objection of the Revenue that the Bank Realisation Certificate has not been produced in respect of individual receipt is not sustainable, particularly, when the appellants have produced the entire Bank Realisation Certificate for the complete financial year.
Quantum of refund - refund claim by the appellants amounts to Rs.4,52,840/-, while the value of export services is limited to Rs.1,92,912/- - Held that:- the amount of refund is governed by the formula under which unutilised credit is multiplied by ratio of export turnover and total turnover and therefore this contention of the Revenue will not have any force if the amount of refund claim satisfies this formula as provided in the Notification.
Co-relation between input services and the services exported - Held that:- Refund is liable to be sanctioned after it is verified that input services have gone into the export services and it has to be seen from the concerned invoices also particularly in the present case since the refund pertain to October, 2010 to March, 2011, there may be cases where input services were received in January and February, 2011 in that case it cannot be said that services has been utilised in respect of the services which are exported prior to receipt of particular input services in previous quarter. As per the decision of the Hon’ble High Court, the matter is required to be verified. In the light of the observations of the Hon’ble High Court of Karnataka, the matter is remanded back to the original authority for re-verification of the claim - Following decision of Shell India Ltd. Vs. CCE, Bangalore reported in [2012 (10) TMI 34 - KARNATAKA HIGH COURT] - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 764
Business Auxiliary Service - Whether the appellant is liable to service tax for having provided BAS to other corporate entities - Held that:- The appellant is seen to have been wholly uncooperative and has exhibited a negative attitude in responding to the exercise of lawful authority, in the matter of assessment. It is axiomatic that the appellant being a Public Sector Undertaking, ought to exhibit a sense of responsibility in responding to notices or summons issued by the Assessing Authority ; by furnishing all the relevant information necessary to enable a just and fair assessment of the appellant s liability, if any. As a Public Sector Undertaking, the assessee ought to have been a role model to other assesses, in the matter of providing full and frank disclosure of all the relevant transactions and material, called for by Revenue - Cost of Rs. 50,000 imposed on the assessee - Matter remitted back - Decided in favour of assessee.
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2014 (6) TMI 763
Demand of service tax - GTA service - Appellants transport the goods in their own vehicle to the buyer. The buyer is a person who actually pays the freight. - provisions of Section 68(2) of the Finance Act read with Rule 2(1)(d)(v) of Service Tax Rules, 1994. - Circular No. 95/6/2007-S.T., dated 11-6-2007- Held that:- it is very clear that the legislative intent is to tax only the services provided by a Goods Transport Agent to a customer and not the owner. - Therefore, the appellant has no liability to pay the service tax. In such circumstances, the action of the Commissioner (Appeals) in setting aside the original order is correct, but there is absolutely no need for remanding the matter. The appellant has no liability at all to pay the service tax. Hence, the appeal is allowed with consequential relief. - Following decision of MSPL Ltd. [2008 (9) TMI 148 - CESTAT, BANGALORE] - Decided in favour of assessee.
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2014 (6) TMI 731
Demand of service tax - Business Support Services - manufacture and sale of products of the distillery unit - Held that:- The definition of 'business support service' as reproduced above, covers only services of supporting nature for the main business i.e. manufacturing, trading and service like services related to marketing etc.
Appellants had undertaken the activity of manufacture and sale of products of the distillery unit itself and profit and loss also is on account of the appellants and not given any support service to M/s. Kolhapur Sugar Mills Ltd. Further we find that on the same agreement, almost for the same period, the Revenue directed M/s. Kolhapur Sugar Mills Ltd. to pay service tax under the category of franchise service vide letter dated 23rd August 2006 and M/s. Kolhapur Sugar Mills Ltd. are paying service tax under the category of franchise service regularly and this fact is not in dispute. In these circumstances, we find that the appellants had not provided any service which can be termed as 'business support service' as provided under Section 65 (104c) of the Finance Act - Decided in favour of assessee.
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2014 (6) TMI 730
Denial of refund claim - CENVAT Credit - Business Support Service, online information and database access or retrieval service, maintenance and repair service, development and supply of content service - Held that:- Respondents are providing three output services out of which two services are classifiable under the category of online information and database access or retrieval service, development and supply of content services which is a separate category altogether and is to be accepted. Similarly the data delivery service provided by the respondent is also a taxable service under the same category. Therefore in respect of these two services, the CENVAT credit availed in respect of input services would be eligible. In respect of IT and system services, both sides agree that credit could not be available during the relevant period to the extent of invoices relatable to this service. The learned counsel agrees to quantify and submit a statement to the original authority giving details under each category which can be verified and decided afresh - Matter remanded back - Decided in favour of Revenue.
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2014 (6) TMI 729
Business Auxiliary Services - Marketing service for ICICI Bank - Invocation of extended period of limitation - appellant contended that ‘as the service tax is comparatively new levy the appellant may not be aware of service tax Rule and Regulations’, it cannot be said that these was intention on the part of the Appellant to evade the tax. Held that:- plea of the appellant with regard to time barred rejected - In this case during the period of dispute the appellant were not filing any return and had not even taken any registration and hence in terms of the section 73(1)(a) as it stood during that period, longer limitation has been correctly invoked.
Waiver of penalty - section 80 - Held that:- Commissioner (Appeals) invoking Section 80 has already reduced the penalty under section 76 & 78 of ₹ 50,000/- each on the ground that as the service tax is comparatively new levy the appellant may not be aware of service tax Rule and Regulations - Since the Commissioner (Appeals) has given a finding that the Appellant may not be aware of service tax rules and regulation, his decision to retain even reduced penalty under section 76 and 78 being not compatible with this finding, is not correct. Therefore the penalty under section 76 & 78 is set aside. - Decided partly in favor of assessee.
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2014 (6) TMI 728
Valuation - Maintenance and Repairs Service - Assessee paid tax on labour charges - dispute relates to the demand of tax on material portion - Held that:- After 46th Amendment to the Constitution, composite contracts can be bifurcated to compute value of the goods sold/supplied in contracts for construction of buildings with labour and material. The service portion of the composite contracts can be made subject matter of service tax. Aspect doctrine is applied for bifurcating/vivisect the composite contract - Service tax can be levied on the service component of any contract involving service with sale of goods etc. Computation of service component is a matter of detail and not a matter relating to validity of imposition of serve tax. It is procedural and a matter of calculation. Merely because no rules are framed for computation, it does not follow that no tax is leviable - Service component of any contract involving service with sale of goods could be levied service tax - Following decision of G.D. Builders Vs. UOI [2013 (11) TMI 1004 - DELHI HIGH COURT] - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 727
Restoration of appeal - Appeal dismissed for non prosecution - Held that:- Period of filing of appeal is three months and by considering the said fact, the application for restoration also ought to have been filed within the maximum period of three months from the dismissal of appeal, though there is no period of limitation prescribed for filing on application for setting aside the order of dismissal. The same view is also expressed by the Hon’ble Gujarat High Court in the case of L.J. Synthetic Mills (2010 (3) TMI 833 - GUJARAT HIGH COURT). The decision placed by the ld. Advocate would not apply to the present case. We have also noticed that the applicant did not provide any sufficient reason for long delay in filing the ROA application. Hence, we find that the ROA application filed by the applicant is not sustainable - Decided against assessee.
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2014 (6) TMI 726
Demand of service tax - security agency service - Petitioner contends that since the Andhra Pradesh Special Protection Force is a part of the State Government, is a body created under the Andhra Pradesh Protection Force Act, 1991, charges or fees levied by it for providing security services would constitute Revenue of the State beyond the taxing powers of the Union of India qua under Article 289 of the Constitution of India. - Held that:- there is no prima facie persuaded to accept this contention of the appellant. - appellant directed to deposit service tax and interest - pre-deposit of penalty waived - stay granted partly.
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2014 (6) TMI 695
Demand of service tax - Classification - Business Auxiliary Service or Broadcasting Agency - canvassing advertisements to be broadcast on Vijay TV. - export of services - use outside India versus performance outside India - Rule 3 (1) (iii) of Export of Service Rules, 2005 - recipient of Service is located outside India - Held that:- activity of selling time slot also will get classified under services of Broadcasting Agency. - there is strong prima facie case in favour of appellant on the first argument.
Regarding export - Held that:- concept of Export of Service has evolved over a period of time and this clause got omitted from 27-02-2010. There are large numbers of cases pending on this issue and there is also a difference of opinion between two Members of the Tribunal pending on this issue in the case of Microsoft Corporation as reported at [2011 (11) TMI 60 - CESTAT, NEW DELHI] which is yet to be resolved.
Prima facie, it would appear that use outside India cannot be equated with performed outside India because the expression ‘performed outside India’ is already used in the case of services at Rule 3 (1) (ii) and when the Legislature is aware of one expression and if it is using a different expression in the same rules, the new expression has to be understood to be having a different meaning from what is already used. In view of this argument, we see prima facie case in the matter of claim of export of service also - Stay granted.
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2014 (6) TMI 694
Waiver of pre-deposit of Service Tax - Classification of service - Works contract service or Site formation service - Excavation and Earth Moving, Demolition Service, cutting down trees, construction of structure etc. - Held that:- Applicant had initially not disputed the classification of the services rendered under the category of 'site formation service' but expressed their inability to discharge the service tax being not reimbursed by the service receiver viz. M/s. Brahmaputra Cracker and Polymer Ltd. Prima facie, on scrutiny of the work order enclosed with the appeal memorandum, we find that the applicants are providing the services relating to earth filling, cutting of trees alongwith the services of raising of RCC structures etc. At this stage, it would be difficult to come to a conclusion whether the said services would fall under the scope of works contract service or site formation service without appreciation of evidences adduced by both sides as these services had been rendered against a common work order - stay granted partly.
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2014 (6) TMI 693
Demand of service tax - Maintenance of garden - Maintenance of Raj Bhawan exempted from tax - Revenue contends that services have been rendered in respect of landscape and garden and not in respect to the road and Government buildings - Held that:- Services in relation to the maintenance of road divider is covered under the provisions of Section 97 of the Finance Act, and the garden which is part of the Raj Bhavan forms part of the Government building. Accordingly, this maintenance service is exempt under Section 98 of the Finance Act. It is vehemently argued by the appellant that the appellate Commissioner have failed to consider the case under Sections 97 & 98 and ordered pre-deposit without considering the important aspect in this case - appellate Commissioner should have considered the applicability of the Sections 97 & 98 before passing any order for pre-deposit as the same goes to the root of the matter. - matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 692
Valuation - works contract composition scheme - inclusion of advance termed as mobilisation advance from their customer - Held that:- there seems to be contradictory stand taken by the appellant himself, which needs to be verified. - another grievance of the appellant is that the lower authorities have demanded the tax on the mobilisation amount separately, by applying the rate of service tax at 10%. - matter remanded back.
Valuation in respect of contract where composition scheme not opted by the assessee - Held that:- the two contracts, where the appellant did not exercise works contract would be assessed to duty in terms of Section 66. The lower authority would also examine the appellant’s claim of exemption in respect of construction of roads, involved in one of the contracts, which stand exempted with retrospective effect. - matter remanded back - decided partly in favor of assessee.
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2014 (6) TMI 691
Waiver of pre-deposit - Cenvat Credit - authorised service stations - cenvat credit of service tax paid on post sale service - Held that:- It does not appeal to commonsense how post service obligation of the appellant was a disintegrated activity to deny Cenvat credit. Prima facie there appears a case of balance of convenience in favour of appellant. Accordingly, there shall be waiver of pre-deposit during pendency of the appeal. - Stay granted.
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