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Service Tax - Case Laws
Showing 101 to 120 of 2349 Records
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2014 (12) TMI 784
Revision of service tax return after 90 days to avail and utilize cenvat credit - refund claim filed for claiming service tax paid in cash - Held that:- Service tax liability was discharged by the appellants in the month of October, 2009 and S.T.-3 return was filed on 24-4-2009. At that particular point of time, their CENVAT account was nil. Subsequently, the entries made in the CENVAT account was checked by them and certain mistakes were detected, resulting in availability of CENVAT credit. They subsequently sought revision of the same on 21-12-2011, i.e., after a period of 2 years and 8 months which according to the lower authorities was not in accordance with law inasmuch as Rule 7B of the Service Tax Rules, 1994 allows any revision to correct a mistake or omission within a period of 90 days of the filing of such return. Though the correction of entries in the CENVAT account is not the subject matter of the present appeal, but the same are inter-connected and inter-related to the issue of refund.
Appellants having paid the duty through cash, at the relevant time and having duly reflected the same in their S.T.-3 return, has to be treated as the correct payment of duty. Subsequently, correction of CENVAT account resulting in availability of CENVAT credit cannot be held to be a ground for refund of the cash deposit and acceptance of the tax through cash. Even the fact of correction of entries in CENVAT account does not stand accepted by the Revenue. I find no justification for refund of the cash deposit, which were, when made, were correct. No justifiable reason for grant of refund of service tax paid in cash. However, as the appellants have also paid the service tax again through CENVAT credit, they are entitled to the correction of entries, by correcting the second time reversal in their CENVAT account. - Decided against assessee.
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2014 (12) TMI 749
Bail Application - anticipatory bail under Section 438 Cr.P.C. - evasion of service tax - commission of offence punishable under Section 83 read with Section 89 (1) (ii) - petitioners claim that they were service providers for extending sanitation services to the Municipal Corporation, which included cleaning of the sewerage - Held that:- At this stage, no impediment can be caused in the investigation, which is in progress, and therefore, free hand ought to be given to the investigator. However, this Court will trust the better sense and discretion of the Investigating Officer to the effect that he shall affect the arrest of the petitioners only; after if he comes to a definite conclusion that prima-facie, offence is made out, arrest of the petitioners necessary to arrive at a truth. - application for grant of pre-arrest bail is, hereby, disposed of, without granting bail to the petitioners.
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2014 (12) TMI 748
Penalty u/s 76, 77 & 78 - Intention to evade tax - bonafide belief - Held that:- Only during the search on 17.01.2006 it was discovered that the appellants had not paid the impugned service tax which pertains to the period 01.04.2002 to 31.03.2003. In his statement which was recorded several days after the search, the proprietor Shri V.P. Singh did not claim to be ignorant about service tax and indeed admitted that the appellants service tax liability was pending. It is totally untenable to claim that proprietary organisation is not a concern. They were clearly engaged in commercial activity. So the appellants were clearly a commercial concern. It is seen that M/s. Vasudha Security Pvt. Ltd. had taken registration in the year 2005 which clearly shows that they were aware about the service tax leviability on security services way before the search operation. Thus, it was not a case of ignorance on the part of the appellants but a deliberate act on their part to evade service tax. - Decided against assessee.
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2014 (12) TMI 747
Condonation of delay - Delay in receipt of order - Commissioner dismissed appeal as barred by limitation - Held that:- Appellant had shifted their office and had not intimated the same to Department about the change of the office. It is evident from the letter dated 21.10.2013 of the Postmaster, Tirunelveli that the Adjudication Order was delivered on 5.4.2011 in the address as mentioned in the adjudication order, and therefore, the appeal filed on 13.1.2012 before Commissioner (Appeals) is time-barred. No reason to interfere with the order of the Commissioner (Appeals) - Decided against assessee.
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2014 (12) TMI 746
Levy of penalty u/s 78 where service tax with interest was paid before issuance of SCN - construction of residential complex service - Held that:- As the service tax liability along with interest has been discharged prior to the issue of show cause notice, sub-section (3) of Section 73 provides for waiver of penalties if reasonable cause is shown for the failure to pay tax. In the present case, the appellant is small time service provider who is ignorant of the statutory provisions relating service tax. Therefore, the provisions of Section 73(3) and 80 could have been invoked and penalty should have been waived by the adjudicating/appellate authorities, which they have not done. - penalty waived - Decided in favour of assessee.
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2014 (12) TMI 745
Waiver of pre deposit - Advertisement agency service - Sale of Space or Time for Advertisement Service - Held that:- Tribunal in the case of Tamil Nadu Cricket Association (2009 (10) TMI 669 - CESTAT CHENNAI), directed predeposit in respect of demand of tax on sale of space and time for advertisement agency relating to sponsorship. The Tribunal in the case of Kerala State Road Transport Corporation (2010 (12) TMI 114 - CESTAT, BANGALORE), as relied upon by the learned counsel, remanded the matter as the assessee’s service tax liability was not considered by the adjudicating authority as the discharge of service tax liability has been discharged by the persons who have taken the space from the assessee. In the present case, prima facie, we find that the applicant paid the tax prior to April 2009. We are unable to accept the submission of the learned counsel that the service tax liability was shifted on the advertisement agency after April 2009. In this context, the learned counsel failed to place any evidence of the discharge of service tax liability by the persons who have taken the space from the assessee. Applicant failed to make out a prima facie case for waiver of predeposit of the entire dues - Partial stay granted.
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2014 (12) TMI 744
Waiver of pre deposit - Call center service - Bar of limitation - whether the appellant received the services in India, it is seen from the record that it is on the appellant's behest M/s Technion Communication Corporation rendered the Call Centre Services in Canada to M/s Monster Inc. - Held that:- M/s Technion Communication Corporation had raised bills on the appellant for the services provided and the appellant had made payments for the services rendered. In these set of circumstances, it is evident that it is the appellant who is recipient of the services and not M/s Monster Inc. Therefore, in terms of Section 66A, the appellant would be liable to pay service tax on the services received. - it is the contention of the appellant that the demand is time barred inasmuch as early as in November 2007, the appellant had furnished details of the services received and the payments made. In spite of such details available with the department as early as in 2007, the Show Cause Notice was issued only in November 2011. Prima facie , the demand appears to be time-barred. Therefore, the appellant has made out a prima facie case for grant of stay. - Stay granted.
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2014 (12) TMI 743
Waiver of pre deposit - Renting of immovable property service - ‘Daily Market’ and ‘Shop Rent’ - Held that:- Demand of tax of ₹ 14,89,730/- under Daily Market and ₹ 56,67,524/- under Shop Rent are, prima facie, sustainable. Accordingly, we direct the applicant to predeposit ₹ 72,00,000 within a period of eight weeks and report compliance on 5.11.2014. Upon such deposit, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeal. - Stay granted partly.
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2014 (12) TMI 742
Penalty u/s 76 - Consulting engineering service and construction services - Held that:- construction of bus terminal is an activity which may not be liable to tax at all and hostel construction also may not be liable. In view of the above, we consider that the amount deposited by the appellants is sufficient for hearing the appeal. Accordingly, there shall be waiver of pre-deposit of balance dues and stay against recovery for a period of 180 days. - Stay granted.
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2014 (12) TMI 741
Improper adjustment of wrongly paid service tax paid against the subsequent liability instead of claiming refund - Penalty u/s 76, 77 & 78 - Business Auxiliary Service - Held that:- It is not in dispute that the service tax law does not provide for adjustment of excess tax paid against the subsequent liability except in certain specified situations and the present case does not involve those specified situations. Therefore, suo motu adjustment of excess tax paid would not arise in the present case. However, it is on record that the appellant intimated and informed the department of the excess service tax paid and suo motu adjustment towards their liability on 24.4.2006 and thus the department was aware of the suo motu adjustment on 24.4.2006. However, the department has chosen to issue the Show Cause Notice only on 21.12.2009, i.e., after a gap of three and a half years. Under these circumstances, the appellant has made out a prima facie case for wavier of pre-deposit of the dues on account of time bar. Accordingly, we grant unconditional waiver from pre-deposit and stay of recovery of the dues adjudged vide the impugned order during the pendency of the appeal - Stay granted.
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2014 (12) TMI 712
Nature of activity - Works contract or not - Availability of composition scheme - Availability of Cenvat Credit while paying service tax on works contract under composition scheme or abatement - whether use of materials such as nuts, bolts etc. are clearly incidental in nature while provided erection and installation services - Held that:- In this case the goods involved as part of Service Contract are subjected to payment of Sales Tax/VAT. In respect of both contracts the appellant have submitted documents evidencing payment of works contract tax under the West Bengal Value Added Tax Act, 2003. Thus, appellants' case is supported by the Board Circular. Therefore we are of the view that the Service contract entered into by the appellants are covered under Works contract category.
Works Contract Service came into force vide Section 65(105)(zzzza) w.e.f. 01.06.2007. The appellants have rightly relied on the Board circular no. 98/1/08-ST dated 04.01.2008 to contend that both the contracts in question came into force after 1.06.2007 and therefore they are eligible to work under the WCS service.
Cenvat credit on input services - Held that:- Appellant has availed credit on input services only - the statement of ld. AR in the written submissions that the Cenvat Credit has been availed on materials is not a correct statement. The Composition Scheme as mentioned above only requires that the provider of service must not have taken Cenvat Credit on inputs. Therefore, there is no reason to deny the option of Composition Scheme to the appellant.
Extended period of limitation - Held that:- it has been held in various judicial pronouncements that wrong classification cannot lead to the conclusion of suppression of facts etc. when no mens rea established. The Adjudicating Authority has also wrongly come to the conclusion that availment of input service credit will debar the appellant form the benefit of Notification 1/06. In the present case, this benefit of Notification has not been availed, rather option of Composition Scheme has been availed which does not bar the availment of Cenvat credit on input service..
Demand set aside - Decided in favor of assexxee.
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2014 (12) TMI 711
Condonation of delay - Delay of 107 days - reason for the delay is that the staff of the Chartered Accountant, suddenly met with an accident, resulting into severe injury - Held that:- Details of the staff has not been disclosed. The ld. Consultant for the Applicant, even today, could not be spelt out the name of the said staff, who met an accident. In these circumstances, we find deficiency in the bonafideness of the Applicant about the facts narrated in the Miscellaneous Application stating reasons for delay. The Hon’ble Supreme Court in the case of Living Media India Ltd. Vs. Office of the Chief Post Master General : [2012 (4) TMI 341 - SUPREME COURT OF INDIA], has specifically laid down that while considering the application of condonation for delay, bonafideness of the applicant needs to be examined. In the present case, we are of the view that the Applicant could not show their bonafideness. Accordingly, both the Miscellaneous Applications for condonation of delay are dismissed - Condonation denied.
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2014 (12) TMI 710
Denial of refund claim - Whether the documents/invoices which were produced by the appellants before the Commissioner (Appeals) as well as adjudicating authority have proper import and export code number in terms of Notification No.17/2009-ST dated 7.7.2009 - Held that:- Issue for proper reconciliation could be looked into by the adjudicating authority for proper appreciation. Onus is on the appellant to produce necessary documents before the adjudicating authority alongwith invoices indicating import & export code number so that activities of export could be correlated with the documents and notifications which is mandatory requirement. - matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 709
Penalty u/s 76 & 78 - Rent-a-cab service - Invocation of extended period of limitation - Held that:- Although demand has been confirmed by invoking the extended period of limitation, but appellant has not disputed the demand of service tax and payment of interest thereon although it pertains to the extended period of limitation; therefore, we are not passing any order on that. The only prayer made before us by the counsel for the appellant is that they are seeking waiver of penalties under Section 76 & 78 of the Finance Act, 1994. As the activity undertaken by the appellant was under dispute during the impugned period, whether it attracts service tax or not, therefore as held by the Hon'ble Gujarat High Court [2012 (4) TMI 326 - GUJARAT HIGH COURT], we set aside the imposition of penalty under Section 76 and 78 of the Finance Act, 1994.
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2014 (12) TMI 708
Waiver of pre-deposit of service tax - business support service - inter unit services between the two units namely M/s. Godrej Industries and M/s. Godrej Consumer Products Ltd. - reimbursement of expenses - Held that:- In the case of J.M. Financial Services Pvt. Ltd. (2013 (7) TMI 151 - CESTAT MUMBAI) and Paramount Communication Ltd. (2013 (3) TMI 134 - CESTAT NEW DELHI) on similar set of facts wherein the expenses incurred by one unit have been recovered from the other unit on sharing basis, it was held that it was not in the nature of business support service. Therefore, following the precedent decision of this Tribunal and in these circumstances, the applicants have made out a strong case for complete waiver of pre-deposit of entire amount of service tax, interest and penalty and the same shall stand waived and recovery thereof stayed during the pendency of the appeal. - Stay granted.
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2014 (12) TMI 707
Penalty u/s 76 - Renting of Immovable Property Services - Whether penalty under Section 76 is leviable in the case of the appellant, who is owner of immovable property liable to Service Tax under the head 'Renting of Immovable Property Services' for the period April, 2009 to March, 2010 - Held that:- penalty was imposed vide Order-in-Original dated 16.11.2011 and confirmed by impugned Order-in-Appeal dated 27.2.2012. But, by introduction of sub-section (2) of Section 80 vide Finance Act, 2012, granting extension of time, the penalty imposed is bad and not sustainable. Thus, the impugned order is set aside by setting aside the penalty imposed under Section 76 - Decided in favour of assessee.
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2014 (12) TMI 706
Denial of refund claim - Franchise service - interest paid by the appellant does not tally with the calculation as per the appellate order - Held that:- Amounts deposited by the appellant whether by way of tax or interest, it assumed the character of deposit when it was held in its favour that no Service Tax is payable and or exigible. Thus, I hold that the adjudicating authority has erred in rejecting the refund claim of ₹ 97,520/- on the ground of mismatch. Thus, the appeal is allowed, the impugned order is set aside and the adjudicating authority is directed to issue the refund - Decided in favour of assessee.
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2014 (12) TMI 705
Waiver of predeposit - Construction of Complex Service - Held that:- Appellant carried out construction of residential quarters to the government through CPWD. On a perusal of the work order dt. 29.11.2006 issued by the CPWD wherein the appellant was awarded construction of 134 numbers of Type II residential accommodation for BSF Campus, Thekkalore village Avinash Taluk, Coimbatore District, Tamil Nadu which includes internal water supply, sanitary and drainage etc. Similar contracts have also been awarded for construction of hostel complex, Lecturers' Quarters for Central University of Tamil Nadu, Tiruvarur etc. Construction of residential complex is for BSF, Lecturers' quarters etc. is meant for their employees. The Award of Contracts issued by CPWD is on behalf of President of India and also the guarantee was executed by the appellant is also on behalf of the President of India. Therefore, in view of the decisions of this very Bench, (2013 (8) TMI 262 - CESTAT CHENNAI) and other decisions of the Tribunal, we are of the view that the appellant has made out a prima facie case for waiver of entire amount of tax along with interest and penalty. Accordingly, the predeposit of service tax along with interest and penalty is waived and recovery thereof is stayed till disposal of the appeal - Stay granted.
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2014 (12) TMI 704
Waiver of pre deposit - Rent-a-Cab-Service - Held that:- The hon'ble Punjab & Haryana High Court as well as the Madras High Court and this tribunal in a series of decisions [2013 (6) TMI 607 - CESTAT MUMBAI], [2010 (4) TMI 283 - PUNJAB & HARYANA HIGH COURT] and [2001 (4) TMI 7 - HIGH COURT MADRAS] have been consistently following the classification of 'renting or hiring of bus/cabs services' under the category of 'rent-a-cab services'. We do not find any changes made in the law necessitating a new classification. The new service of 'supply of tangible goods for use' has not been carved out of 'rent-a-cab service'. In this factual and legal position, the impugned demand classifying the service under the category of 'supply of tangible goods for use service' is not prima facie sustainable in law. Thus, the appellant has made out a case for grant of stay. 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 703
Refund claim - Notification No. 17/2007-ST - Violation of principle of natural justice - Opportunity of hearing not given - Held that:- personal hearing was held on 14.03.2012 and was attended by Shri Deepak Aggarwal Chartered Accountant on behalf of the appellants. Thus, it is incorrect to claim that no personal hearing was granted. However, there is substance in the appellants assertion that had the Commissioner (Appeals) asked them the reason for claiming refund of service tax on services relating to MV XN DA they would have been able to satisfy him about the sustainability of their claim. In these circumstances, we deem it fit that the appellants should get another opportunity to present their claim before Commissioner (Appeals). Accordingly, we set aside the impugned Order-in-Appeal to the extent it upheld the rejection of refund of ₹ 8,38,074/- and remand the matter to the Commissioner (Appeals) for de novo adjudication on merit - Decided partly in favour of assessee.
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