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Service Tax - Case Laws
Showing 121 to 140 of 2349 Records
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2014 (12) TMI 702
Construction service - Notification No. 45/2010-ST dated 20.7.2010 - Held that:- Appellant rendered service to facilitate erection of electricity of transmission tower. It is seen from the bills annexed in the Memorandum of Appeal that the appellant rendered service of setting concreting, earthing erection of towers and stringing of conductor earth wires. - As per the Notification 45/2010-ST dated 20.7.2010 the service tax was not required to be paid in respect of taxable service relating to transmission and distribution of electricity tower during the aforesaid period. We agree with the submission of the learned AR that the amount deposited by the appellant, which has been appropriated in the adjudication order would not be refunded. In any event, there is no dispute that the appellant rendered the service relating to transmission and distribution of the electricity tower during the said period and therefore the demand of tax is not sustainable in terms of the Notification dated 20.7.2010 - Decided in favour of assessee.
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2014 (12) TMI 668
Stay application - banking and financial services - Conflicting decisions - Held that:- Tax liability has been confirmed on the ground that the appellant has accepted pre-payment charges towards the settlement of the loan extended to their customers. We find that in the appellants own case, the co-ordinate bench of the Tribunal has taken a view holding that such activity of fore-closure of the loan does not attract Service Tax liability. This bench in the case of HUDCO has taken a diagonically opposite view after considering the judgment in the case of Small Industries & Development Bank of India (2011 (1) TMI 495 - CESTAT, NEW DELHI). Since there are two different views expressed by two different benches, we are constrained to refer the matter to Hon’ble President for constituting a Larger Bench to decide as to which view is correct.
Since the appellant has already deposited the amount of Service Tax liability, interest and 25% of the tax liability and as we have referred the matter to Larger Bench, we consider the amount deposited by the appellant as enough deposit to hear and dispose the appeal on merit. Accordingly, application for waiver of pre-deposit of the balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal. - Stay granted.
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2014 (12) TMI 667
Sponsorship service - sponsor of the cricket team Kings XI Punjab - Held that:- Payment of service tax in respect of the same service is not being disputed by the Revenue in precedent case. However, their contention is that the sponsoring of the cricket team amounts to providing sponsoring service and as such the liability would fall upon the appellant. Commissioner (Appeals) has also held that sponsoring of a cricket team is not outside the scope of sponsorship service. Apart from noting that the issue of sponsorship of cricket has been held to be not covered by the sponsorship service, by the Tribunal in the case of Hero Motocorp Limited vs. CST, Delhi reported in [2013 (6) TMI 447 - CESTAT NEW DELHI], which would not cast any obligation on the appellant to discharge service tax, we also note that the service tax on the same transaction already stands deposited by M/s KPH, under the category of Business Auxiliary Services. Demand of service tax in respect of the same transaction on the ground that the deposit of service tax was under a different category whereas a different category of service has been provided cannot be held to be justifiable. - Decided in favour of assessee.
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2014 (12) TMI 666
Banking and Financial Institution Service - Business of lending securities and earning interest - Held that:- Transaction held by the CCIL for collateral borrowing and lending obligation is nothing but giving loans and advance against securities. Therefore, prima facie the amount of charges retained by the lender constitute as interest on loan. In these circumstances, the applicants are not required to pay service tax. Another issue for demand of service tax is that the applicant, HDFC Bank Ltd., discounts the account receivable (invoice) of their client and at the time of maturity, they get full value of the amount of the invoice. Revenue is of the view that as they have discounted the invoice, the same does not form part of the interest, the same is commission earned by them for discounting the invoice. The revenue has termed this transaction as factoring i.e a financial transaction in which a business in need of funding sells its accounts receivable as discount. On that they are required to pay service tax.
As per the Notification 29/2004-ST dated 22.09.2004, discount of bill is exempted from levy of service tax. The only contention of the revenue is that while discounting the applicant has earned commission. We have seen the said notification. As per the Notification, it deals only the interest for lending the money for certain period of time. In the facts of the case, the discount is nothing but interest for lending the money. Therefore, the applicants have made out a case for complete waiver of pre-deposit on this issue. Penal interest is payable on delay of the advance given by the applicant to their clients. Therefore, same also form part of the interest of loan. Accordingly, service tax is not payable. In these circumstances, the applicant has made out a case for complete waiver of pre-deposit on this issue also - Stay granted.
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2014 (12) TMI 665
Condonation of delay - Delay of 472 days - Shifting of office - Held that:- In the case of Living Media (2012 (4) TMI 341 - SUPREME COURT OF INDIA), the hon'ble apex court dismissed the application for condonation of delay on the ground that at each and every stage the departmental officers has not taken any step to proceed with the case therefore the conduct of the departmental officers are found not to be reasonable. In these circumstances the hon'ble apex court came to the conclusion that in the said case delay cannot be condoned. But the general principle as, has laid down by the hon'ble apex court is that if the delay has been explained then the delay can be condoned. In this case, although the applicant has tried to explain the reasons for causing the delay which are not found to be satisfactory but in the interest of justice, we are condoning the delay in filing the Cross Objections subject to payment of cost of Rs . 25,000/-to be deposited in the Hon'ble Prime Minister's Relief Fund. - Delay condoned conditionally.
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2014 (12) TMI 664
Waiver of pre-deposit - Business Auxiliary Service - Service of providing JP miles to trade partners - Held that:- Applicants are selling the JP miles to their business partners and business partner is providing JP Miles free of cost to their customers for availing free tickets from the applicant. In these circumstances, we are not convinced by the argument of the learned A.R that the applicant is providing any business service to their business partners and remuneration received towards sales of JP Miles by the applicant is not covered under the Business Auxiliary Service. For the remaining demands the applicant has paid substantial amount. In these circumstances we waive the requirement of pre-deposit of the balance service tax, interest and penalties and stay recovery thereof during the pendency of the appeal. - Stay granted.
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2014 (12) TMI 663
Commercial training or coaching services - benefit of small scale exemption Notification No. 6/05-ST does not stand extended by lower authorities on the ground that the services provided by them are the branded services and as such excluded from the applicability of the notification - Bar of limitation - Held that:- There is a clear finding by the Appellate Authority about the absence of malafide on the part of the appellant, the same finding would be applicable for the purpose of limitation. If there was no malafide for the purpose of penalty, there cannot be any malafide for the purpose of limitation also. Accordingly, we set aside the impugned order on the ground of demand being barred by limitation - Decided in favour of assessee.
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2014 (12) TMI 662
Classification of service - Business support service - Cleaning services of toilets and coaches in trains - Whether cleaning of railway coaches and toilets and supply of bed-rolls to the passengers of AC and other coaches would get covered by Business Support Service or Business Auxiliary Service so as to make the appellant liable to service tax - Held that:- Following decision of Deepak & Co., Vs. CST, Delhi [2014 (7) TMI 493 - CESTAT NEW DELHI] demand set aside - Decided in favour of assessee.
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2014 (12) TMI 661
Waiver of pre-deposit - storage & warehousing charges - Held that:- On factual matrix, random invoices which have been produced before us indicate that the appellant has raised and billed separately for storing charges and other charges towards composite stuffing charges for export consignment and it also indicates that for the export cargo storage chargers they have discharged the Service Tax liability. The entire order of the adjudicating authority has not considered this submission in its correct perspective as we find no reasoning given for rejecting such a submission made before him. Appellant has made out a prima facie case for waiver of the pre-deposit of the amounts involved. Application for waiver of pre-deposit of amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.
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2014 (12) TMI 660
Waiver of pre-deposit of service tax - denial of Cenvat Credit - Input services - Held that:- Services namely Brokerage for sale/purchase of shares & securities for Trading, Custodian charges, Event management services paid by them are in nature of input services having nexus to their business activity. Therefore, they are entitled to avail input service credit. We further find that as per Rule 4A of the Service Tax Rules, the required document that has been mentioned is the debit note issued by lead bank i.e. State Bank of India for Custodian charges and it contains all details. Therefore applicants are entitled to take Cenvat Credit on the said document. As the applicant had already reversed a sum of ₹ 44,620/- against the maintenance charges for residential flat of the Managing Director, therefore, the applicant has made out a case for complete waiver of pre-deposit. Accordingly, we waive the requirement of pre-deposit of service tax, interest and penalties and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (12) TMI 659
Waiver of pre-deposit of service tax, interest and penalties - Banking and Financial Institution Services - Held that:- Applicant is not a banking company and service tax is payable only on the issuance of the bank guarantee issued by the bank. Further, we have seen the impugned order wherein in one case, the guarantee has been given by the bank; in that case service tax has been paid by the bank and credit of the said service tax has not been availed by the applicant. Further, we find that in the Guarantee the word "Bank" is mentioned wrongly instead of applicant itself. Admittedly, the guarantees issued by the applicant does not bear or does not have any party as a bank. In these circumstances, prima facie applicant has made out a case for complete waiver of pre-deposit. Accordingly, we waive the requirement of pre-deposit of entire amount of service tax, interest and penalties and stay recovery thereof during the pendency of the appeals. - Stay granted.
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2014 (12) TMI 629
VCES Scheme - Whether any enquiry / audit objection, or any action whatsoever was pending against the petitioner, as on 01.03.2013 - construction of residential houses on contract basis - show cause notice was on 31.07.2013 - Registration problem with ACES - Rejection of application under VCES since audit initiated - Held that:- It has to be pointed out that there was no audit initiated/conducted against the petitioner or in the business premises of the petitioner. This has not been disputed by the Department. However, the petitioner would state that an audit was conducted in M/s.Shobika Impex Private Limited and the petitioner had done certain construction activities in the said company and a communication was sent by the Range Officer to the petitioner on 07.03.2013. It has to be further pointed out that the cut-off date is 01.03.2013 and as on the said date, there was no audit objection. Even assuming that M/s.Shobika Impex Private Limited was the subject matter of audit from 01.03.2013, the petitioner was not put on notice, prior to 01.03.2013. The petitioner was intimated by the Range Officer, Tiruppur Range, on 07.03.2013.
The petitioner's consistent case is that the Range Officer is not the competent authority to initiate any audit. Nevertheless, a reading of the impugned order shows that the communication, dated 07.03.2013 is only an intimation, probably, with a view to intimate the petitioner that they have to register themselves under the Service Tax regime and pay taxes.
The petitioner did not ignore the communication of the Range Officer, but accepted the same with utmost seriousness. This is manifest by the petitioner's representation dated 08.03.2013, addressed to the competent authority, namely, the Superintendent of Central Excise, and the contents of the same have been elaborately set-out in the preceding paragraphs of this order, which clearly show the bona fides of the petitioner. Therefore, this Court has no hesitation to hold that as on the date when the application was filed by the petitioner, there was no audit as against the petitioner. - Even assuming that there was an audit with M/s.Shobika Impex Private Limited, such audit was not put on notice to the petitioner, by the competent authority, till the show cause notice was issued. The communication of the Range Officer was not an intimation of audit objection. Even assuming if it is considered as an intimation of audit objection, yet the communication on 07.03.2013 was much after the cut off date.
Thus the issue that has to be considered by the Authority is, as to whether the petitioner could be considered to be ineligible under the scheme, for which the authority should not be solely guided by the Range Officer's communication, dated 07.03.2013, which appears to be an advice or notice and the petitioner has taken the advice well and proceeded in accordance with law. - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 628
Waiver of pre deposit - Classification of service - Management, maintenance and repair services or Business Auxiliary Service - Processing of fly ash for cement factory - Held that:- There is no consideration provided by KPCL for the service of maintenance and repair by the appellant - KPCL is not receiving any consideration for fly ash supplied. Fly ash has no value and KPCL has a responsibility of disposal at cost. Therefore stand taken by the Revenue that free supply of fly ash is consideration for management, maintenance and repair, is not sustainable - Actual expense incurred on management, maintenance and repair of the leased facility is already covered by consideration received by the Society from the cement units which is collected as service charges. This is the revenue for the society which is utilized for their activities including management, maintenance and repair of the facility - That being the position, consideration for management, maintenance and repair service can be said to have been covered by service charge received by the appellants from their customers. Since the entire service charge collected is subjected to levy under Business Auxiliary Service and such consideration includes maintenance and repair also, it cannot be said that service tax is leviable under this category separately. In any case, it cannot be said that the appellants are providing management, maintenance and repair service to the cement units - Under these circumstances, it has to be held that the appellants have made out a prima facie case in their favour for complete waiver of pre-deposit of the dues - Stay granted.
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2014 (12) TMI 627
Waiver of pre deposit - Penalty u/s 78 - Commercial training or coaching service - imparting training, licensing and conducting examination for candicates intending to fly Helicopter. - Held that:- An educational qualification recognized by law will not cease to be recognized by law merely because for practicing in the field to which the qualification relates, a further examination held by a body regulating that field of practice is to be taken. Immediate instance can be given of the qualification in the field of law. Though by amendment of the recent years, the right to practice law on the basis of the said qualification has been made subject to clearing/passing a Bar Exam to be held by the Bar Council of India, the same does not make the qualification of law not recognized by law. The recognition accorded by the Act, Rules and CAR supra to the Course Completion Certificate issued by the Institutes as the petitioner cannot be withered away or ignored merely because the same does not automatically allow the holder of such qualification to certify the repair, maintenance or airworthiness of an aircraft and for which authorization a further examination to be conducted by the DGCA has to be passed/cleared.
Decision of the Hon’ble High Court of Delhi is clearly applicable to the facts of this case. - Following decision of Indian Institute of Aircraft Engineering [2013 (5) TMI 592 - DELHI HIGH COURT] - Stay granted.
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2014 (12) TMI 626
Waiver of pre deposit - Mining of Mineral Oil or Gas Service - GTA services - whether such an activity undertaken by these appellants is to be considered as part of mining service or the service tax is leviable under the GTA service - Held that:- when transportation activity is undertaken within the mine or from the mine outside the mine are to be classified under cargo handling service or goods transport by road pending upon the method adopted. However the Commissioner has interpreted it differently. He has observed in the order-in-original in paragraph 19.1.6 that the activities are undertaken from mine head to pit head and after 01.06.2007 the same is covered under mining activities. The only ground taken seems to be that the transportation is within the mining area. However learned counsel vehemently contested this and stated that the appellants were engaged in transportation of iron ore from mine head/pit head to the Railway sidings and the activity undertaken by them cannot be said to be within the mines. In any case the circular issued by the Board can lead to understanding and an interpretation that even for transportation within the mine or transportation from the mine to the railway sidings, mining service may not be the correct classification. It is well settled that if an assessee chooses to interpret a circular or a circular in his favour when two interpretations are possible, he cannot be found fault with. In any case in such a case extended period may not be invokable.
Appellants were paying service tax under the category of GTA service and such tax was paid till 2011 without any failure. When the service receiver became a partnership firm, the appellants promptly informed that the receiver started paying the tax and intimated the fact to the department. The actions of the service providers as well as the service receivers in this case in our opinion reflects the fact that they had a bona fide belief that they were implementing the statute correctly. On this ground, appellants can be said to have made out a prima facie case on limitation. - Stay granted.
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2014 (12) TMI 625
Waiver of pre-deposit - Receipt of internet telecommunication service - reverse charge mechanism - Internet Telecommunication Service - Held that:- Service provided to the petitioner by M/s. Verizon falls within ITS. We notice that sub-clause (iii) of Section 65(57a) enumerates provisions of telecommunication services including fax, telephony, audio conferencing and video conferencing, over the internet as included within the defined taxable service ITS, by way of an inclusionary clause, explicating the ambit of the ITS. From the terms of the contract/agreement entered into between the global headquarter of the petitioner, incorporated at San Diego and M/s. Verizon, a copy of which is placed for our perusal by way of additional material papers filed along with the stay application, we are prima facie compelled to infer that M/s. Verizon provides telecommunication services to the petitioner facilitating fax, telephony and audio/video conferencing including over the internet, an activity clearly falling within the ambit of Section 65(57a) and clearly outside the ambit of Section 65(109a).
We are not persuaded to the view that the impugned adjudication order suffers from any infirmity warranting eventual appellate interference or grant of full waiver of pre-deposit at this stage. - whole of service tax demand directed to be deposited - interest and penalty stayed - Partial stay granted.
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2014 (12) TMI 614
Invocation of extended period of limitation - Repairs and Maintenance Services - Small scale exemption under Notification 6/2005-ST with effect from 16.06.2005 - Held that:- Adjudicating authority has clearly stated that there was interpretation of law involved and he extended the benefit of Section 80 of Finance Act, 1994 for not imposing any penalty. It clearly shows that the ingredients required for invoking extended period are not present in this case. Indeed in the entire adjudication order there is no word as to how the extended period is invocable. As such we find that the extended period is not invocable in this case - It is also seen that the adjudicating authority categorically stated that it was not possible to check each and every entry running into thousands and then summarily went ahead and confirmed the impugned demand. It is to mention that once the appellant contended that the demand raised was untenable because the difference between the figures of their ledger and in their ST-3 return was for the reason mentioned earlier, a clear finding was required to be given by the adjudicating authority instead of brushing it aside on the ground that it was not possible to verify their claim. - Matter remanded back - Decided in favour of assessee.
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2014 (12) TMI 598
Classification of services - Management Consultancy service or Business support services - nature of services are executionery or management consultancy - various activities like assisting the client in various field, advising the client on various aspects including liaising with various government departments, advising and assisting to solve various problems - Bring to the attention of the Company any improper or wrongful use of the Companys name, patents, trademarks, emblems, designs, models etc. - providing legal assistance - Held that:- A careful perusal of the appellants services to M/s. Transocean and M/s. Tide Water makes it clear that the appellants were advising the clients about various aspects relating to Management. The services are not executionery in nature and are clearly advisory in nature. The definition of ‘Management Consultant’ is so worded that the services performed by the appellants clearly fall within its scope and for that one only has to read the definition of ‘Management Consultant’. - Decided against the assessee.
The appellants’ attempt to elucidate the meaning of Management Consultancy by reference to meaning of the word ‘Management’ is not really germane because the expression ‘Management Consultant’ and ‘Management Consultancy Service’ are clearly defined in the Finance Act 1994 itself and therefore one doesn’t have to, indeed one cannot, look beyond the statutory definition for the purpose of classification in this case.
Regarding the appellants contention that the said services would be appropriately covered in the category of support services of business or commerce, or Business Consultancy Service, the same is not tenable because as per the definition of support service for business or commerce, the activities covered thereunder are essentially executionery in nature. - Decided against the assessee.
Export of services or not - amounts paid by the ONGC to be treated as receipt in foreign currency or not - Held that:- The ratio of the judgment of Supreme Court in the case of JB Boda [1996 (10) TMI 70 - SUPREME Court] is that for treating such payments as payments received in foreign exchange, RBI’s nod should be there which is absent in the present case. It is pertinent to mention that once the RBI is taken in the loop, such transactions will not go unnoticed for the purpose of the relevant data bases of Indias international trade and foreign exchange transactions and will also not remain under the radar of the laws relating thereto. Thus, the impugned payments made by ONGC to the appellants do not merit to be treated as payments received in foreign exchange. - However benefit of export extended where actual foreign exchange received by the assessee. - Decided partly in favor of the assessee.
Nature of services provided under the sales representative agreements to Helicopter Asia(PTE) - Held that:- As is evident from the ‘sales representative agreements’ the appellants role includes promotion of the services recipients’ goods/services and is thus clearly different from that of a commission agent. - Their claim for exemption under Notification No. 13/2003-ST on the ground of being commission agent is obviously untenable. - Decided against the assessee.
Extended period of limitation - Held that:- Mere presumption of non-taxability can never be equated to ‘reasonable belief’ in that regard. Thus, the conclusion is inescapable that they deliberately did not take registration and pay the impugned service tax with a view to escaping the liability and when caught, pretended to be having reasonable belief about the non-taxability. Thus invocability of extended period and mandatory penalty is unexceptionable. - Decided against the assessee.
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2014 (12) TMI 597
Banking and other Financial services’(BOF) - Providing ATM facilities and other allied activities related to ATM services to various nationalized banks and to other banks - Scope of Section 65(11)(i) - w.e.f. 1.5.2006 ATM Service a separate service was introduced under Section 65(96) and Section 65(105)(zzzk) of Finance Act and the appellants are duly discharging service tax under the ATM Services. The entire dispute is pertaining to the period prior to 01.05.2006 and in the present case, the Revenue sought to classify the service under BOF service.
Held that:- it is evident that in the case of finance lease the lesser transfer all the risks and rewards incidental to the ownership to the lessee. In the present case, the ATMs are owned by the appellants and no rights or risk and rewards are transferred to the Banks. The appellant collects charges for proving ATM Services as facility charges per ATM per day basis. Therefore, by respectfully following the Apex Court decision in the case of Association of Leasing & Financial Services Companies Vs. UOI [2010 (10) TMI 4 - SUPREME COURT OF INDIA], we hold that the appellants providing ATMs and other ATM related activities do not fall under BOF as Financial leasing including equipment leasing and transfer of information or data processing. - Decided against the revenue.
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2014 (12) TMI 596
CENVAT Credit - scope of Input services - Outdoor Catering Service - input service used for personal use or consumption by any employee - Held that:- What is excluded is only the services 'primarily for personal use or consumption of any employee' under clause (C) of Rule 2(1) of the definition of input service. When the Government has specifically used the words such as "used primarily for personal use or consumption of any employee", the same has to be given due effect to. In the present case the outdoor catering service is used in relation to business activities of the Appellant and the service is used by all employees in general. Also, the Revenue has not rebutted the contention of the Appellant, that the costs of these input services form part of the cost of final product. I also find that the services covered in clause (B) of the definition are excluded from the ambit of cenvat credit without any such qualification of use of service for personal or official purpose. - even the Government while issuing the budget clarification or subsequent circular has clarified that what is not eligible is that service which is meant for personal use or consumption by an employee or the cost of which is included as part of salary of the employee as a cost to company basis. In the present case, the cost of such services, are admittedly borne by the company and not by the employee. Therefore, I hold that the Appellant has correctly claimed the cenvat credit on outdoor catering services. Accordingly, the impugned orders are set aside - Decided in favour of assessee.
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