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Service Tax - Case Laws
Showing 301 to 320 of 2349 Records
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2014 (11) TMI 870
Valuation - inclusion of value of the HSD supplied by the service recipient - Extended period of limitation - Challenge to the Show Cause Notice - Invocation of Rule 5(1) of the Service Tax (Determination of Value) Rules 2006 - Provision has been declared ultra vires by the Division Bench of the Delhi High Court in case of Intercontinental Consultants & Technocrats Pvt. Ltd. v. Union of India reported in [2012 (12) TMI 150 - DELHI HIGH COURT] - Held that:- Value of the diesel supplied free of cost by the service recipient cannot constitute taxable event, the authorities cannot take a contrary stand by placing reliance upon the provision which has been declared ultra vires. This Court, therefore, has no hesitation to hold that the extended period invoked by the authority on the plea of suppression of fact is illegal and renders the same to be invalid.
It is in dispute that one of the period covered in the impugned show cause notice is apparently within the normal period of limitation provided under Section 73(1) of the said Act, even if, this Court accept that such period can be segregated from the rest of the periods for which the extended period is invoked, the impugned show cause notice cannot be validated having based upon the inclusion of the value of HSD supplied free of cost by the service recipient. Furthermore, the foundation of the impugned notice is laid on Rule 5(1) of the said rules, which is declared ultra vires by the Delhi High Court [2012 (12) TMI 150 - DELHI HIGH COURT] - It is found that the value of HSD provided free of cost by the service recipient cannot be brought within the value of the transaction exposed to the charging section and, therefore, the impugned show cause is liable to be quashed and set aside. - Decided in favour of assessee.
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2014 (11) TMI 834
Business Auxiliary Service - Penalty u/s 76 & 78 - Held that:- Equal amount of penalty under Section 78 of the Finance Act has been imposed and the learned Commissioner (Appeals) has dropped the penalty under Section 76 on the ground that once penalty under Section 78 is imposed, penalty under Section 76 is not justified, as held by the Hon'ble Punjab & Haryana High Court in the case of CCE vs. First Flight Courier Ltd. reported in [2011 (1) TMI 52 - High Court of Punjab and Haryana] - it appears that the Commissioner (Appeals) has rightly waived the penalty under Section 76 in the light of the decision of the Hon'ble Punjab & Haryana High court cited supra. Hence I do not find any infirmity in the impugned order - Decided against Revenue.
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2014 (11) TMI 833
Waiver of predeposit of service tax - Telecom service - Held that:- The adjudicating authority has demanded service tax on BSNL Cellular Division on the Inter-connect usage charges for BSNL Landline Division. BSNL is a PSU entity who has taken separate registration for each Division/Zone for the purpose of discharging service tax liability. There is no dispute on the fact that BSNL has one single PAN number and one Profit and Loss/Balance Sheet. The definition "to any person" defined in the Section 105 (zzzx) of Finance Act, 1994 refers to a separate legal entity". The citation relied upon by the appellant in the case of Precot Mills Ltd. Vs CCE Tirupati (2006 (2) TMI 25 - Appellate Tribunal, Bangalore) and IOCL (2007 (5) TMI 135 - CESTAT, KOLKATA) is squarely applicable to the facts of this case. Following the ratio of the aforesaid decisions, prima facie the appellant has made out a case for waiver of predeposit. Accordingly, we waive the requirement of predeposit of entire service tax along with interest and penalties and stay its recovery till disposal of the appeal - Stay granted.
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2014 (11) TMI 832
Waiver of predeposit of tax - levy of service tax on bill discounting charges in the course of purchase and sales - Banking and Other Financial Services - Held that:- Prima facie, we are unable to accept the contention of the Commissioner (Appeals). As per Section 65 (12) (a) (ix), "Banking & Other Financial Service" would include the bill discounting services provided by a banking company or a financial institution including a non-banking financial company or any other body corporate or commercial concern. Apparently, the bill discounting are related to processing charges collected by the said institutions from the recipient of service. But, in the present case, the bill discounting is during the course of sale of goods between the buyer and seller and prima facie, no service tax is leviable. - Prima facie case in favour of assessee - Stay granted.
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2014 (11) TMI 831
Denial of refund claim - scope of input services - validity of question raised in the show cause notice - reverse charge mechanism - The appellant states that the very show-cause notice is bad and illegal in terms of the directions of the Ministry of Finance issued in its Circular dated 9.8.2005. In view of this Circular, there is no scope for getting into the definition of input service and the Revenue have totally misconceived in issuing the show-cause notice dated 9.11.2006. Thus, the whole proceedings are vitiated and the impugned order is fit to be set aside. Accordingly, the appellant pleads to allow the appeal.
Held that:- show-cause notice itself is vitiated and completely misconceived in the facts and circumstances of the case. Thus, the appeal is allowed and impugned order is set aside. - refund allowed - Decided in favour of assessee.
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2014 (11) TMI 830
Waiver of pre-deposit of service tax - Manpower Recruitment or Supply Agency service - Held that:- applicant informed the Revenue vide letter which was received on 19.9.2006 explaining their activity after obtaining legal opinion and this letter was produced during investigation in 2011 by the Director of the applicant. Therefore, prima facie the applicant has made out a strong case for waiver of dues on limitation. The pre-deposit of the dues is waived and recovery therefore stayed for hearing the appeal - Stay granted.
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2014 (11) TMI 829
Cargo handling service - Held that:- appellants have undertaken the activity under the work order which is for hiring of tipper for loading of coal from mines to B.G. Siding at Saoner and also hiring of loaders for loading of coal into tippers and thereafter loading of coal to the wagons. The contention of the appellant is that this activity comes under the scope of transportation of goods by road whereas the Revenue held that the activity comes under the scope of cargo handling service. after taking into consideration the activity undertaken in the mines, which is similar to the activity undertaken by the appellant, held that the activity such as hiring of pay loader for mechanical transfer within the mining area comes under the service of taxable service of cargo handling service. Tribunal in the case of Om Shiv Transport (2013 (5) TMI 110 - CESTAT NEW DELHI) after relying upon the decision of the Hon'ble Orissa High Court, held that the activity undertaken similar to the activity undertaken by the appellants comes under the cargo handling service and not under transportation of goods - Decided against assessee.
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2014 (11) TMI 795
Waiver of pre deposit - CENVAT Credit - consulting engineer service - Credit taken on strength of debit notes - Held that:- debit notes are serially numbered and clearly show the amount of service tax paid thereunder along with other details like description, value of service, service tax registration number, the recipient and the signature of the authorised signatory. Further, it is seen that the Board vide circular No. 120/01/2010-ST dated 19/1/2010 in para 3.4 has observed that in case of incomplete invoice the department shall take a liberal view in view of the judicial pronouncements. there is no allegation that the service in respect of which impugned credit was taken was not received by the appellants. CESTAT in the case of CCE, Salem vs. Pallipalayam Spinners (P) Ltd. (2010 (9) TMI 951 - CESTAT CHENNAI) has held that credit is admissible on documents such as debit notes containing all the requisite particulars for the purpose of extending the credit. Similar view was held by CESTAT in the case of Pharmalab Process Equipments Pvt. Ltd. vs. CCE, Ahmedabad [2009 (4) TMI 142 - CESTAT AHMEDABAD] and in the case of Gujarat Tea Processors and Packers Ltd. vs. CCE, Ahmedabad [2011 (9) TMI 248 - CESTAT, AHMEDABAD]. Appellants have a prima facie made out a good case for complete waiver of pre-deposit. We accordingly waive the pre-deposit in full and stay recovery of the impugned service tax demand, interest and penalties during the penalty of the appeal - Stay granted.
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2014 (11) TMI 794
Levy of tax on commission retained by other person - Reverse charge mechanism - Assessee handed over bills for collection of the export proceeds to Standard Chartered Bank - Standard Chartered Bank undertook collection of the export proceeds through their office in UK who retained a part of the amount towards collection charges - Held that:- contract for collection is between the appellant and the Bombay branch of the Standard Chartered Bank. Thus both the service provider and service recipient are situated in India and therefore there is no import of service involved. How the Standard Chartered Bank in Mumbai makes arrangement for collection is not the business of the appellant, nor are they concerned with that. We, therefore, find that the appellant has made out a prima facie case for wavier of pre-deposit. We therefore grant unconditional waiver of pre-deposit of the dues adjudged vide the impugned order and stay of recovery thereof during the pendency of the appeal - Stay granted.
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2014 (11) TMI 793
CENVAT Credit - Availment of credit on tippers and dumpers - Trippers and dumpers not considered as inputs or capital goods - Exemption under Notification No.25/2010-CE(NT) - Retrospective effect of amendment done in Notification - Held that:- The said notification is very clear as inserting sub-clause ‘C’ in Rule 2 of CENVAT Credit Rules, 2004 and nowhere it mentions that the said notification is of retrospective nature. We find that on an identical issue in the case of Ganta Ramanaiah Naidu (2009 (9) TMI 261 - CESTAT, BANGALORE ), co-ordinate Bench had taken a view that Central Excise duty paid on dumpers and tippers is not eligible to be availed as CENVAT Credit before amendment. appellant has not made out a strong prima facie case for complete waiver of the pre-deposit of the amounts involved only on limitation ground - Partial stay granted.
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2014 (11) TMI 792
Waiver of pre deposit - Commercial and Industrial Complex Service - applicants had not placed any evidence in support of their stand that construction of residential dwelling single units would not come under the purview of construction of residential complex service - Held that:- Revenue submits that without prejudice, after granting abatement, the demand of tax would be approximately ₹ 36,00,000/-. The Ld. Advocate submits that they have already paid an amount of ₹ 14,8,595/- which has been appropriated in the adjudication order. The applicant admitted the dues of about ₹ 10,00,000 - applicant directed to make pre-deposit a further amount of ₹ 15,00,000 - Partial stay granted.
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2014 (11) TMI 791
Erection, commissioning and installation service - works contract service - whether composite works contracts are susceptible to levy and demand of service tax prior to 01.06.2007 under existing taxable services such as commercial or industrial construction service or erection, commissioning or installation service - Held that:- There are conflicting decision of Tribunal on the issue in Jyoti Limited vs. Commissioner - [2007 (12) TMI 20 - CESTAT, AHMEDABAD], Commissioner vs. Indian Oiltanking Limited - [2009 (1) TMI 443 - CESTAT, MUMBAI], on the one hand and Commissioner vs. BSBK Pvt. Limited - [2010 (5) TMI 46 - CESTAT, NEW DELHI - LB], on the other therefore, matter is referred to larger bench.
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2014 (11) TMI 790
Waiver of pre deposit - Authorized Service Station service - Held that:- Appellant’s service station is recognized because they used brand name of ‘Maruti’ and owners of vehicles manufactured by Maruti come to the appellant’s premises for obtaining service because they used brand name of ‘Maruti’. In the bills, invoices etc., they mentioned the fact that they are ‘Maruti Authorized Service Station’ There is no doubt that they have extra clientele and additional business because they used the brand name of ‘Maruti’. No doubt that the issue is debatable and requires consideration of precedent decisions, statute etc. which can be done at the time of final hearing. At this stage, prima facie, we consider that the appellant is not able to make out a case in their favour. Therefore, the appellant is required to deposit the entire amount of service tax demanded within eight weeks - Partial stay granted.
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2014 (11) TMI 789
Waiver of pre deposit - Survey and Map Making Service - Held that:- if an assessee makes a claim that the same service and the same transaction has already suffered the tax, levy of tax for the second time on the same transaction without even verifying the correctness of the claim, in our opinion, may not be sustainable. For the normal period of limitation, in our opinion, the demand would have been definitely sustainable since for demand in the normal period, even if there is a mistake, the amount becomes payable. However in the case of extended period, there has to be suppression of fact or mis-declaration. In this case if an assessee believed in a bona fide manner that he is not liable to pay service tax and there are sufficient grounds for such plea and such plea is not a blind belief, he cannot be found fault with if the assessee considers that the tax is non-taxable. This would mean that the assessee has assessed his tax as ‘nil’. In this case since the main contractor paid the tax and show-cause notice has been issued beyond the normal period of limitation, we consider that in the absence of any evidence to show that the appellant had an intention to evade tax or suppress the facts, tax could not have been demanded again. Suppression of fact is something which is required to be declared in accordance with statute and not declared. In a self assessment regime, if an assessee correctly assessed the goods according to his own assessment and if there is a valid ground for him to take such a view, extended period may not be invokable. Under these circumstances we consider that appellant has made out a prima facie case for waiver of pre-deposit - Stay granted.
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2014 (11) TMI 788
Waiver of pre deposit - Manpower Recruitment and Supply Agency Service - Held that:- issue is covered by the decision of the Tribunal in the case of Future Focus Infotech Vs. CCE - [2010 (3) TMI 190 - CESTAT, CHENNAI]. On the other hand, the learned counsel submits that the issue is covered by the decision of the Tribunal in the case of Cognizant Technology Solutions Ltd. Vs. CCE - [2010 (3) TMI 328 - CESTAT, CHENNAI]. We find that the issue will be decided after examining the documents. Hence the applicant failed to make out a strong prima facie for waiver of entire amount of dues - Partial stay granted.
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2014 (11) TMI 757
Business Auxiliary Services - collection of toll charges on behalf of CIDBI or not - Held that:- The appellants relied on the various provisions of Memorandum of Agreement, Tripartite Assignment Agreement, and also adduced additional evidence in the form of letters from the lead Banker M/s. IDBI, wherein they are treating the appellant only as the Concessionaire and accordingly the funds have been released to them. The appellants have also produced the letter from the Income Tax department, wherein the income tax concessions available to the Concessionaire has been granted only to the appellant and not to CIDBI. even as per the department’s allegations that they were acting as collection agents, though not admitting, the demand should have been made only of the commission charges, if any, paid by CIDBI. As a matter of fact, there was no such commission paid at all. Following decision of assessee's own previous case [2013 (1) TMI 166 - ANDHRA PRADESH HIGH COURT] - Decided in favour of assessee.
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2014 (11) TMI 756
Management Consultancy Services - activity of helping in marking of granite blocks and rendering assistance in execution of the export orders - Penalty u/s 76, 77 & 78 - Held that:- Organization to whom Management Consultancy service is alleged to have been provided is not specified. Moreover, the service provided has to be in relation to the Management of an organization including advice, Consultancy or technical assistance for rectification or improvement of system of the organization. Mere helping a client in executing the export orders or in selecting granite blocks is not at all covered by the Management Consultancy Service, as there is no element of any consultancy with objective of management, rectification or improvement of the working system of an organization. The activity of the appellant therefore does not fall under Section 65(105)(r) read with Section 65(65). As such, the impugned order is not sustainable. The same is set aside - Decided in favour of assessee.
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2014 (11) TMI 755
Refund claim - period of limitation - repair and maintenance of light, electric installation etc - appellant was under the impression that they are required to pay service tax, they kept paying the service tax till 15.06.2005. Later-on, when they realized that as the street lights are immovable property and they are not required to pay service tax, they filed a refund claim of the service tax erroneously paid by them which was not payable at all. - refund claim was rejected as time barred - Held that:- in this case the provisions of Section 11B of the Central Excise Act, 1944 are not applicable as the appellant has paid the service tax which was not payable during the relevant time. Further arguments advanced by the learned A.R. that this Tribunal has not authority to sanction the refund claim, I find that as per Section 35B of the Central Excise Act, 1944, if any person aggrieved by the order of the Commissioner (Appeals) can filed an appeal before this Tribunal. Obviously, the appellant before me is aggrieved by the order of the Commissioner (Appeals), therefore, the appeal is maintainable. - refund allowed.
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2014 (11) TMI 754
Waiver of pre deposit - hire purchase and financial lease service - Held that:- On perusal of the decision of the Hon'ble Apex Court in the case of Association of Leasing & Financial Service Companies Vs. Union of India (2010 (10) TMI 4 - SUPREME COURT OF INDIA), various provisions of Finance Act, and Service Tax Rules. Prima facie we do agree with the contention of the Ld. Counsel for the applicant that applicant is engaged in the activity of giving loan for earning interest through leasing the vehicles under financial leasing services. As per explanation to Section 67 of the Finance Act, 1994. - Interest on loan is exempted from service tax is not to be included in the taxable service and same has been followed by Rule 6 (2)(iv) of the Service Tax Valuation Rules, 2006. In these circumstances, prima facie we find that applicants have made out a case for complete waiver of pre-deposit. Therefore, we waive the requirement of pre-deposit of entire amount of service tax, interest and penalty and stay recovery thereof during the pendency of the appeals - Stay granted.
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2014 (11) TMI 753
Waiver of pre deposit - Club or Association Service - Held that:- Ranchi Club Ltd. Vs. Commissioner of Central Excise & Service Tax, Ranchi Zone reported in [2012 (6) TMI 636 - Jharkhand High Court], Sports Club of Gujarat Ltd. Vs Union of India reported in [2013 (7) TMI 510 - GUJARAT HIGH COURT] - In view of that, we waive the pre-deposit of tax along with interest and penalty till disposal of the appeal - Stay granted.
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