|
Advanced Search Options
Service Tax - Case Laws
Showing 281 to 300 of 2349 Records
-
2014 (11) TMI 973
Validity of tribunal's order - Decision given on the basis of precedent decision - Port services - Classification of service - Held that:- Tribunal has committed no error. Firstly the decision of Ramdev Food Products Pvt. Ltd. (2010 (6) TMI 178 - CESTAT, AHMEDABAD) on which Tribunal has placed reliance has been upheld by this Court vide decision dated 6-12-2012. Secondly as finding of fact Commissioner has held that services were provided by port itself. That being the position and in view of the fact that Tribunal had upheld this finding, entire controversy is substantially narrowed down. Further we notice that definition of taxable service contained in Section 65(105)(zn) came to be amended with effect from 1-7-2010 - in the clarification issued by the Board in its circular dated 12-3-2009 to a query “the services provider providing services to the exporter provides various services. But he has registration of only one service. The refund is being denied on the grounds that the taxable services that are not covered under the registration are not eligible for such refunds.” - No question of law arises - Decided against Revenue.
-
2014 (11) TMI 972
Waiver of pre-deposit of service tax - Discrepancies in the ST-3 returns and the balance sheet submitted by the petitioner - Security agency and manpower supply services - Held that:- Adjudicating authority contemplates that service tax under the services of Security Agency and Manpower Supply Services have not been paid as shown in the balance sheet which attracts violation of the provisions of Sections 67, 68, 69 and 73 of the Finance Act, 1994. The adjudicating authority cannot travel beyond the show cause notice and should have confined its consideration within the compass thereof. The Tribunal ought to have taken into account the above aspect and should not have shirked its responsibility by mere saying that the aforesaid services were culled out from the balance sheets submitted by the petitioner before the adjudicating authority. - Tribunal ought to have given a total waiver of pre-deposit of the service tax relating to the Cleaning Services, Supply of Tangible Goods Services, Business Auxiliary Services and Consulting Engineers Services amounting to ₹ 29.44 lakhs. The adjudicating authority has given the dictionary meaning of the word ‘Watch and Ward’; and the meaning attribute to the security services and has held that those cannot stand on a separate pedestal. The finding does not appear, prima facie, to be perverse and without any basis.
Once the Tribunal found that the petitioner should be directed to deposit 25% of the service tax, the petitioner shall deposit the same on the Security Service component, excluding the said sum of ₹ 29.44 lakhs. - stay order modified.
-
2014 (11) TMI 971
Service Tax Voluntary Compliance Encouragement Scheme, 2013 - Declaration of tax - Held that:- The scheme makes no difference between tax dues which are short-paid due to bona fide error and one which flows from deliberate inaction. There is no power for waiving or relaxing the condition of depositing 50% tax dues flowing from Section 107. It would not be possible for this Court to exercise writ jurisdiction to direct the authority, in plain terms, which the statutory provision does not permit.
Only after the taxes are fully deposited stage-wise that the declaration under Section 107 would be accepted. Section 110 only pertains to recovery of the taxes declared, but not paid. This provision has no bearing on the invalidity of declaration when the declarant fails to deposit the taxes as provided in sub-sections (3) and (4) of Section 107. If we interpret Section 110, as urged by the learned counsel for the petitioner, that it encompasses both the cases of delay in depositing the taxes at the first stage of sub-section (3) of Section 107 and second stage of sub-section (4) of section 107, the proviso to sub-section (4) would be rendered wholly redundant. If as suggested, shortfall in the taxes could be accepted after charging interest under Section 110, there was no need to make special proviso for extending time for depositing the remaining of the taxes under sub-section (4) of Section 107. Further, Section 110 pertains to compulsory recovery of taxes with interest. Sub-sections (3) and (4) of Section 107 refer to voluntary tax deposit by a declarant in terms of the scheme. Both these operate in separate fields. - Decided against assessee.
-
2014 (11) TMI 970
Maintainability of appeal - refund claim or levy of service tax - Export of services - marketing of foreign Principal’s products in India - Rule 3(1)(iii) of the Export of Service Rules, 2005 - Held that:- The precise issue, which had arisen was whether the assessee was engaged in export of services and, therefore, whether service tax was payable. Reliance was placed by the respondent-assessee on the Rules to make the claim for refund. Prayer for consequential refund could only be granted in case the service rendered was an “export” and, therefore, no service tax was payable and leviable on the said service in terms of the Rules and the circulars/notifications. In these circumstances, we do not think that the appeal is maintainable before the High Court and the same is accordingly directed to be returned. The appellant, if aggrieved and wants, can take appropriate steps as per law. - Decided against Revenue.
-
2014 (11) TMI 969
Intellectual Property Services - Trade marks and brand name - Supreme Court admitted the appeal of the assessee against the decision of Tribunal in [2012 (4) TMI 198 - CESTAT, NEW DELHI], wherein Tribunal held that permission to use the said trade mark to the oil companies is covered by the definition of Intellectual Property right and intellectual property services as appearing in the Finance Act.
-
2014 (11) TMI 968
Cenvat Credit - Input Services - 2(l) of CCR - catering services - Supreme Court after condoning the delay granted leave to the Revenue in the appeal filed against the order of High Court [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein the High Court held that once the service tax is borne by the ultimate consumer of the service, namely the worker, the manufacturer cannot take credit of that part of the service tax which is borne by the consumer. - Proportionate credit to the extent embedded in the cost of food recovered from the employee/worker not allowed.
-
2014 (11) TMI 932
Maintainability of appeal - Export services - Held that:- Court does not agree with the submission of the counsel for the appellant-Revenue that the issue raised in the order-in-original and in the appellate orders did not relate to the question of levy of duty or rate of duty/tax. The precise issue, which had arisen was whether the assessee was engaged in export of services and, therefore, whether service tax was payable. In these circumstances, we do not think this appeal is maintainable before the High Court and the same is accordingly directed to be returned. - Decided against Revenue.
-
2014 (11) TMI 931
Service Tax on GTA under reverse charge - Cenvat credit - payment of service tax through cenvat credit - assessee was engaged in manufacture of yarn of different kinds - Held that:- in respect of nature of manufacturing done by the respondent, imposition of Service Tax does not arise and respondent is entitled to use Cenvat credit. - Following decision of The Commissioner of Central Excise Versus M/s. Cheran Spinners Limited [2013 (8) TMI 215 - MADRAS HIGH COURT] - Decided against Revenue.
-
2014 (11) TMI 930
Waiver of pre deposit - Man Power Recruitment Agency and business support service - Contravention of the provisions of Rule 6 of the Service Tax Rules, 1994 read with Section 68 of the Finance Act - Held that:- Prima facie there is a finding by the Original Authority that the appellant had admitted that service tax has been collected and not paid over to the credit of the Government. In another matter, the appellant is claiming Cenvat Credit and that issue, as already pointed out by the Tribunal, should be gone into at the time of final hearing. For the purpose of pre-deposit, prima facie case as well as the balance of convenience should be considered. In this case except stating that certain amount is due from the bank investments from USA, the appellant has not chosen to file any document in support of his submission. The mere statement or affidavit without any supporting document will be no avail. The order of the Tribunal requires no modification. However, taking note of the plea of the appellant seeking further time for making payment, we are inclined to grant extension of time. - Decided partly in favour of assessee.
-
2014 (11) TMI 929
Service Tax Voluntary Compliance Encouragement Scheme, 2013 - Request for rectification / amendment in the declaration - It is contended that the petitioner in the declaration filed before the Service Tax Authorities sought to declare the amount of ₹ 3.87 crores. In terms of its understanding, it claimed credit for the sum of ₹ 81,35,729/- deposited by it earlier, i.e., prior to March, 2013. It also sought to seek credit for the sum of ₹ 1,18,00,000/- paid between 18th March, 2013 and 10th July, 2013, in compliance of Section 107(3). The Service Tax Authorities however refused to accept the declaration, taking the position that the credit claimed in respect of the earlier sum paid up to 18-3-2013 was based upon a wrong understanding of the provisions relating to the scheme. The tax authorities also held, consequently, that in the absence of 50% deposit under Section 107(3) the application could not be entertained and proceeded with.
Held that:- The authorities have not been given any discretion in the matter of grant of extension of time to make initial pre-deposit of 50% of the declared amount. In fact, the consequences are spelt out for failure to pay the tax dues under Section 110. In these circumstances the claim in the petition for a direction to extend the period or alternatively for deleting the sum of ₹ 81 lakhs from the declaration already filed cannot be granted. - Decided against assessee.
-
2014 (11) TMI 928
Clim of reimbursement of service tax from the service recipient of services by the service provider / contractor - Maintainability of petition - Denial of refund claim - whether the petition is maintainable for the purpose of a dispute between the petitioners and the Jabalpur Development Authority in the matter of refund of service tax - Held that:- question with regard to entitlement of the petitioners to recover the amount of service tax from the Jabalpur Development Authority either under the common law or under the Resolution No. 12 is a matter which is disputed between the contractor and the Jabalpur Development Authority and it was held that for the said dispute, the matter will have to be decided by a court of competent jurisdiction which can receive evidence, hear the parties and decide the matter in accordance with the terms of the agreement. Once, this court has held that the question of refund of the amount and the tenability of the same based on Resolution No. 12 is to be decided by a court of law after recording of evidence, i.e. after conducting an inquiry, we are of the considered view that this petition is not maintainable. - Decided against assessee.
-
2014 (11) TMI 927
Challenge to the Show Cause Notice - Business support service or not - security services provided by Assam Tea Plantation Security Force (ATPSF) to protect the planters and their property. - sovereign function or not - Held that:- The value of sovereign functions of a state is not taxable in the hands of the citizens. Support services rendered by the government are taxable. According to the government this kind of service received by the writ petitioner is classifiable as a “support service”.
The department has the jurisdiction and obligation to determine whether the writ petitioner is receiving support services from the government. Therefore, before it could demand or even show cause under Section 73 of the Finance Act, 1995, for Service Tax, it was incumbent upon the department to make the determination whether the subject service could be classified as a support service and the writ petitioner exigible to service tax. If the department’s answer was in the affirmative, only then, a show cause notice and thereafter a demand for service tax could have been issued. - the notice dated 20th November, 2013 is quashed and set aside. - Decided in favour of assessee.
-
2014 (11) TMI 926
Cenvat Credit - input services - Non commencement of production / manufacturing activity - Whether the CESTAT was right in considering the services namely Technical Testing and Analysis Service, Technical Testing and Certification Service, and Intellectual Property Rights Services, availed by the assessee, as eligible services for availing input service credit as defined under Rule 2(l) of the CCR, 2004 - Held that:- Tribunal has merely followed its earlier decision in the case of M/s. Cadila Healthcare Pvt. Limited [2009 (8) TMI 172 - CESTAT, AHMEDABAD] and has allowed the appeal. - It is an accepted position that the above decision of the Tribunal in the case of M/s. Cadila Healthcare Pvt. Limited came to challenged before this court [2013 (1) TMI 304 - GUJARAT HIGH COURT] and the same had been answered in favour of the assessee and against the Revenue
From the findings recorded by the Commissioner (Appeals) it appears that though the nature of services involved are more or less similar, the facts of the present case are different from that of M/s. Cadila Healthcare Pvt. Limited inasmuch as the services availed by the assessee are in respect of products which are not put to manufacture even after availment of the services in question. The assessee has not commenced manufacture of the final product in view of the fact that if the product is manufactured during the patent period there would be violation of Intellectual Property Rights which would have huge financial implications. Hence, the assessee is waiting till the time the product becomes generic before commencing manufacture of the final product. The Commissioner (Appeals) has, therefore, held that as and when the assessee is able to co-relate the use of the above services as input service used in its final product it would be eligible for credit of such taxes.
The Tribunal, in the impugned order has without delving into the facts of the present case and noticing the distinguishing features, has blindly followed its earlier decision in the case of M/s. Cadila Health Care Pvt. Limited. However, the Tribunal being the final fact finding authority having not examined the facts of the case in proper perspective, in the absence of proper facts being placed before it, it is not possible for this court to answer the question formulated hereinabove. Under the circumstances, the matter is required to be remitted back to the Tribunal - Matter remanded back - Decided in favour of Revenue.
-
2014 (11) TMI 925
Goods Transport Agency service - Interest on delayed payment of tax - assessee contended that, they would have taken Cenvat credit and utilised the same for payment of Service Tax. - Accordingly, the assessee contended that the levy of interest was not sustainable. - Held that:- Assessee had remitted the tax belatedly and under the advice of their Internal Audit, interest on belated payment being automatic, rightly the Revenue invoked Section 75 of the Finance Act in this case. In the circumstances, we do not find any ground to accept the plea of the assessee herein that interest cannot be demanded on the facts of the case. - in the light of the decision of the Apex Court in the case of Commissioner of Trade Tax (UP) v. Kanhai Ram Thekedar reported in [2005 (4) TMI 75 - SUPREME COURT OF INDIA], we hold that the action taken by the Revenue could not be faulted with. - Decided in favor of revenue.
Whether the service from the individual truck operator did not fall within the definition of “Goods Transport Agency” as per Section 65(50b) of the Finance Act, 1994. - Held that:- The expression “any person” is not defined under the Act. Section 3(42) of the General Clauses Act defines “person”, as including any company or association or body of individual whether incorporated or not. The thrust of the definition is that it includes every person engaged in an activity providing service of transport of goods by road. Thus, any commercial or a proprietary concern carrying on the business of Goods Transport would fall under the definition of “Goods Transport, Agency” in Section 65(50b) of the Finance Act. In the absence of any words of restriction, the definition ‘any person’ thus would have application to any concern providing the service. - Decided in favor of revenue.
-
2014 (11) TMI 876
Classification of service - activity of shooting the programme prepared by the advertising agency - Advertising Agency Service or Video Tape Production Services - Held that:- Revenue wants to classify the activity undertaken by the Respondent under Advertising Agency Service. As per the provisions of Section 65 (53) of the Finance Act, 1994, advertising agency means any person engaged in providing any service connected with the making preparation, display or exhibition of advertisement and includes an advertising consultant. In the present case, the Respondents are registered with the Revenue authorities as provider of Video Tape Production Service with effect from 7.8.2001 and paying appropriate service tax. The activity undertaken by the Respondent is not connected with the preparation, display or exhibition of advertisement. The respondents are only shooting the programme prepared by the advertising agency. Hence the activity does not fall under the category of advertising agency service.
In respect of limitation also we find that the Respondents are registered with the Revenue as provider of Video Tape Production Service since beginning and paying appropriate service tax by filing statutory returns. Therefore the allegation of suppression with intent to evade payment of service tax is also not sustainable - Decided against Revenue.
-
2014 (11) TMI 875
Maintainability of writ - Application for issuance of Writ of Prohibition - service tax liability was confirmed and order in original was passed - Prohibition on the respondents from levying and collecting service tax on the transfer of right to use copyright - Liability to pay service tax on copyright service - service tax on the royalty charges - Held that:- Petitioner having already agitated their rights before the Tribunal with regard to the earlier period was not entitled to maintain a Writ Petition before this Court, when show cause notice was issued for the subsequent period. That apart, the issue as to whether service tax is liable to be paid on the nature of transaction done by the petitioner with its group companies, whether the logo which is registered under the Copy Right Act was used as an artistic work or merely with the purpose to show that the products marketed by their group companies also belong to the TTK group and whether in that regard, it was in the nature of a trade mark are all issues which involve adjudication of disputed questions of fact. These issues cannot be permitted to be raised for being adjudicated in a Writ Petition. Issue raised by the petitioner being an issue relating to classification, there is a clear bar of jurisdiction imposed under the statute if even entertaining an appeal as against the order passed by the Tribunal as the appeal shall lie only to the Supreme Court. - Decided against assessee.
-
2014 (11) TMI 874
Commercial or industrial construction service - Whether the appellant is liable to pay service tax on the ground that appellant has provided commercial or industrial construction service in respect of cargo agent building constructed by them for M/s. GMR Hyderabad International Airport Ltd. - Held that:- According to Aircraft Act, 1934, aerodrome means any definite or limited ground or water area intended to be used, either wholly or in part, for the landing or departure of aircraft, and includes all buildings, sheds, vessels, piers and other structures thereon or appertaining thereto. She submits with the help of a diagram that cargo agent building constructed by them is appertaining to the parking area of cargo aircrafts and therefore is covered by the definition and therefore is to be excluded from the definition of airport services for payment of service tax. She also relies upon the decision in the case of Archistructural Constructions India Pvt. Ltd. Vs. CCE, Coimbatore [2011(22) STR 663(Tri. Chennai)] wherein it was held that air catering unit constructed at the airport can be considered as part of airport and excluded. - after going through the diagram and the submissions made, we find that prima facie case is in favour of the assessee - Stay granted.
-
2014 (11) TMI 873
Valuation of service - Whether the value of free supply of cement, steel etc. is required to be added to the gross amount charged in providing the commercial or industrial construction taxable service to compute the assessable value for the purpose of service tax - Held that:- Following decision of Bhayana Builders (P) Ltd. vs. CST, Delhi reported in [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] - Decided in favour of assessee.
-
2014 (11) TMI 872
Valuation of goods - inclusion of the value of diesel supplied free of cost - Held that:- Issue of includibility of the value of free supplies in the gross amount charged has been decided by the Larger Bench of CESTAT in the case of Bhayana Builders (P) Ltd. Vs. Commissioner of Service Tax. Delhi - [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], wherein it has been unambiguously held that the value of free supplies by the service receiver to the service provider is not includible in the ‘gross amount charged’ by the service provider from the service receiver. In view of this, any further discussion on the issue involved is unnecessary and unwarranted. It is accordingly held that the demand confirmed on the basis that the value of diesel supplied free of cost by the service receiver is includible in the gross amount charged is unsustainable. When the demand itself is not sustainable, the question of any penalty simply does not arise. - Decided against Revenue.
-
2014 (11) TMI 871
Invocation of extended period of limitation - No allegation of fraud, collusion, willful misstatement or suppression of facts - Exemption under Notification No. 34/2004-S.T., dated 3-12-2004 - Held that:- Only on the examination of accounts maintained by the assessee, the proceedings themselves emanated on the allegation of short payment. It is not denied by the Revenue, that the assessee originally placed reliance on the Exemption Notification, not remitting Service Tax on the freight charges exceeding ₹ 750/-. Further on the allegation that the Exemption Notification would not apply to the case, there is no allegation of fraud, collusion, willful misstatement or suppression of facts. Thus, on the allegation of non-payment arising from the examination of accounts, we do not find that the Revenue would be justified in placing reliance on the extended period for limitation as provided for under Section 73(1) proviso of Finance Act.
The proviso under Section 11A of Central Excises and Salt Act, 1944, contains the phrase “with intent” to evade payment of duty in such person. The provision under Section 73(1) of the Finance Act, is no different from what is contained under Section 11A of Central Excises and Salt Act, 1944; thus, with the requirement of ‘with intent’ to evade payment of Service Tax, indicating element of deliberate avoidance or evasion, the show cause notice must contain materials to have the benefit of extended limitation. Thus, when the notice contains no such allegation, the Revenue’s case cannot be brought under the extended time limit to hold that the proceedings are saved by the extended limitation. In the circumstances, we hold that the notice issued on 16-10-2007, for the period from November, 2005 to May, 2006, is without any jurisdiction. Consequently, any demand of tax, penalty of interest in this case, is without jurisdiction. - Decided against Revenue.
............
|
9911796707
