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Service Tax - Case Laws
Showing 321 to 340 of 2349 Records
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2014 (11) TMI 752
CENVAT Credit - construction service and consulting engineer service - Held that:- Appellant is entitled to take CENVAT Credit on the construction services and consulting engineering services availed by it during the financial year 2007-08 being prior to 1.4.2011 when such CENVAT Credit was expressly disallowed by amendment of the Rules. Further, I hold that the whole proceedings against the appellant were misconceived. Hence, the impugned order is set aside - appellant is permitted to take CENVAT Credit - Decided in favour of assessee.
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2014 (11) TMI 751
C&F Agency Services - Commissioner set aside demand - Held that:- sales representative appointed by the respondent were only canvassing orders and they were not received or clearing and forwarding the goods manufactured by the appellant. For canvassing the orders and pursuing the delivery of the goods, the sales representatives were paid a commission. This activity of the sales representative, by no stretch of imagination, can be called clearing and forwarding service and, therefore, we do not find any infirmity in the order passed by the lower appellate authority - Decided against Revenue.
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2014 (11) TMI 750
Remission of tax - On the basis of previous order Commissioner ordered remission of tax without issuing SCN - Held that:- Inasmuch as the relied upon order has already been set aside and the matter is remanded back to the adjudicating authority, and the said order is the basis for issuance of the notice, the notice also would not survive and consequently the order passed by the Commissioner also would not survive and the matter has to be re-considered afresh by the Commissioner in terms of the directions given in the order of this Tribunal - Matter remanded back - Decided in favour of assessee.
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2014 (11) TMI 714
Manpower Recruitment or Supply Agency's services - Penalty u/s 76 & 78 - Held that:- Period in dispute is initial period when the service tax was imposed on Manpower Recruitment or Supply Agency's Services and when the Revenue pointed out the same deficiency in payment of service tax, respondents immediately paid the same with interest and subsequently paying regularly the service tax. In these circumstances, in view of Section 80 of the Finance Act, 1994 we find that it is not a case for imposition of any penalty - Decided against Revenue.
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2014 (11) TMI 713
Management, maintenance or repair service - business of retreading of old and used tyres - Held that:- there is a demand of tax on the material portion alone. It is seen from the said adjudication order that the appellants contended that they are paying sales tax/VAT on the materials at the time of purchase and also at the time of delivery of retreaded tyres since it is a works contract service and the transfer of property amounts to 'sale" as per Article 366 (29A) of the Constitution of India. It is further seen from the adjudication order that appellant had adduced sales invoices, sales tax returns, VAT returns and sales tax assessment orders to prove that transfer of property in the retreading activity is leviable to sales tax. - Following decision of G.D. Builders Vs UOI [2013 (11) TMI 1004 - DELHI HIGH COURT] - Matter remanded back - Decided in favour of assessee.
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2014 (11) TMI 712
Reversal of CENVAT Credit - Non maintenance of separate accounts - benefit of Notification 1/2006-ST dated 01/03/2006 - Penalty u/s 76, 77 & 78 - Held that:- From the records it is seen that the appellant has been filing the details of the reversals made by them indicating therein the details of the total credit taken, the value of the exempted services, value of the total output services including the value of the taxable and exempted services and other relevant particulars. From these parameters, the CENVAT credit attributable to exempted services can be easily determined in terms of the formula prescribed under Rule 6(3A). If certain details were lacking, the department could have directed the appellant to furnish those details to satisfy that the credit reversal has been done in accordance with the said formula. From the records of the case, it is seen that the department has not undertaken any such exercise nor have they given any finding as to whether the reversal made by the appellant is in conformity with sub-rule (3A) or not. In the absence of such a finding, the impugned order is clearly not sustainable in law. Matter remanded back - Decided in favour of assessee.
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2014 (11) TMI 711
Waiver of pre deposit - CENVAT Credit - Banking and other Financial Services - denial of credit on the basis of e-statement of NPCI - the availment of credit on the basis of photocopy of invoices - Held that:- demand of tax was proposed in the show cause notice for an amount of ₹ 18,02,85,012/-. The adjudicating authority deputed the jurisdictional Assistant Commissioner for verification of the documents. The Assistant Commissioner of Central Excise by letter dated 05.11.2012 had given a detailed report and on that basis the adjudicating authority dropped the demand of Cenvat of ₹ 13,10,41,895/-. We find that the submission of the Ld. Advocate, the original documents were before the audit party, had not taken before the adjudicating authority. Such a submission cannot be accepted at the stage of stay petition hearing. The Tribunal in the case of M/s. Century Rayon Vs. CCE, Thane-I reported in [2014 (8) TMI 324 - CESTAT MUMBAI], held that credit cannot be allowed on the basis of photocopy of invoices. Hence, the applicant failed to make out a strong prima facie case for waiver of pre-deposit on availment of cenvat credit on the basis of photocopy of invoices and statement of service provider - Partial stay granted.
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2014 (11) TMI 710
Waiver of pre deposit - Survey and map making services - consulting engineer's service - Held that:- The activity undertaken by the appellant, as can be seen from the work orders, is soil investigation, traffic survey and pavement design. These activities prima facie would not come under the category of ‘survey and map making services'
Services in relation to construction of Road - classification under the ‘consulting engineer's service' - Held that:- If any one of the three is rendered, in any manner, liability to service tax is attracted. Even if it is assumed that the appellant has not rendered any advice or consultancy, the question is whether the services rendered could be categorized as ‘technical assistance'. Technical assistance, by its very nature would imply rendering of executor services, in relation to advice or consultancy. From the traffic survey conducted by the appellant, advice can be rendered about the nature of road to be constructed. From the soil investigation undertaken, the type and design of the road to be constructed can be determined. Similarly, from the pavement design, the design of the road itself can be made. Thus, the activity undertaken by the appellant has a direct bearing on the construction of roads. prima facie appellant has not made out case for complete waiver of the pre-deposit of the dues adjudged against them - Partial stay granted.
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2014 (11) TMI 709
Franchisee service - Whether it can be said that appellants have been granted representational right to the franchisor or not - Held that:- If prior to 16.05.2008, the service was correctly classifiable under franchise service and broader category was brought into the statute subsequently it does not mean that for the earlier period it could not have been classified under franchise service. Hence in our opinion appellants have to be put to some terms because we find that appellants do not have prima facie case on consideration of the agreements, the definition in the statute and the consideration of submissions made by both the sides. We have not considered it necessary to go into the technical literature regarding franchise and licensing which was also presented by both the sides and both the sides claimed support from such literature. Basically the source was USA where the matter has a long history whereas in India this concepts have been coming up in recent times only especially after service tax was introduced. Therefore without considering these aspects also in our opinion if we consider the statute and the agreements, at this stage it would be sufficient and the conclusion is that appellants do not have a strong prima facie case.
Business Auxiliary service - Appellants are not providing any services on behalf of Oracle. Appellants have paid VAT on consideration received towards product/software updates as it amounts to sale of software and after 16.05.2008 they have been paying the tax. Information Technology Services were excluded from the scope of Business Auxiliary Service right from the date of introduction of Business Auxiliary Service as taxable on 01.07.2003. This exclusion lasted till 16.05.2008 when the new taxable service ITSS was introduced. It was also submitted that the scope of Information Technology Service excluded from the levy of service tax under Business Auxiliary Service was very wide and covered all services relating to design or development of computer software, computerized data processing or system networking or any other service preliminarily in relation to operation of computer system. Prima facie we find force in this argument. Therefore in respect of this service, we consider that appellant has made out a prima facie case for waiver.
Management Consultancy services - reverse charge - in the impugned order that professional consultancy charges are liable to tax under Management Consultancy Services. It was submitted by the appellant that the appellants have not made any payments towards shared support charges payable to Oracle. On this count the demand for ₹ 60,99,236/- has been submitted as not payable. It was also submitted that the centres are engaged in the actual execution of the work and are not providing advice or consultancy to the appellant. The appellants relied upon Hewlett Packard India Sales Pvt. Ltd. V. CCE & ST, Bangalore LTU [2014 (11) TMI 658 - CESTAT BANGALORE]. It was also submitted that such services even though they are liable would be covered under Business Auxiliary Service or Business Support Service. It was also submitted that computation of demand is erroneous. Further submission was also made that no reason has been given to justify classification of the services under this heading. We find that these submissions would result in conclusion that appellants have made out a prima facie case in their favour.
If the appellants deposit 50% of the demand within the normal period in respect of Franchise Service along with proportionate interest payable till the date of payment, the same would be sufficient for the purpose of hearing the appeal. The total demand within the normal period in respect of Franchise Service as quantified by the appellants to be ₹ 34,87,23,385/- is accepted and the demand of 50% has to be calculated on this basis and proportionate interest also has to be paid on the said amount. - Decided partly in favour of assessee.
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2014 (11) TMI 696
Waiver of pre deposit - Export of services or not - Technical Testing and Analysis Services - Proof of export - submissions made by learned counsel that they did not file Shipping Bills while sending samples is relevant and therefore, they could not have made a submission that they had exported since the question of procedure would arise. - Held that:- It is not the case of the department that neither any evidence has been provided nor any evidence brought before us during hearing to show that the appellant has not used the imported / indigenous materials for their activity of ‘technical testing and analyzing’ and resulting any export of service.
In terms of Boards Circular dated 29.2.2008 read with Notification No. 5/2008-S.T. dated 1.3.2008, special provisions for three services were created and one of them was in respect of TTA services. If these services are provided from India in relation to any goods or material or any immovable property, it has to be treated as service performed outside India. In this case, the appellant was providing structure of biochemical compound which was developed in India and a minute quantity was exported and therefore, it was submitted that this Circular is applicable. - prima facie case is in favor of assessee - Stay granted.
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2014 (11) TMI 673
Waiver of service tax, interest and penalty - ineligible cenvat credit - advertisement service and broadcasting services - Held that:- Appellant has availed input service credit on broadcasting services for advertising their products in the media through their advertising agencies. The advertising agency raised two sets of invoices, one for the services rendered by the agency for development of design and content and another is billed for the reimbursements of the broadcasting charges. I find that the copy of the invoice dt. 15.10.2009 raised by Zee News Ltd. is in the name of Jyothy Laboratories Ltd. and the agency name is mentioned as Lintas Media Group, Mumbai. Following decision of IOCL [2014 (11) TMI 659 - CESTAT MUMBAI] - appellant has prima facie made out a case for waiver of predeposit. Accordingly, the predeposit of amount of tax, interest and penalty is waived and its recovery is stayed till disposal of the appeal - Stay granted.
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2014 (11) TMI 664
Delay in sanctioning of refund - Numerous reasons for non sanction of refund - Held that:- sanctioning authority is only gaining time to sanction the refund claim - Commissioner of the Service Tax, Pune in other proceedings against the applicant on the same issue has already sanctioned the refund claim to the applicants as per the decision of this Tribunal vide order dated 12.03.2013 and the Commissioner of the Service Tax, Mumbai is not following the same procedure in this case despite the appeal having been dismissed by this Tribunal, filed by the revenue. Therefore, it is observed by this Tribunal that there is no consistency in the view taken by the departmental officers. Moreover, in this case, there is clear direction to the concerned officer to dispose of the refund/rebate claim within one month. We also find that after the receipt of the order of this Tribunal on 16.09.2014, no steps were taken to implement the order of this Tribunal till 28.10.2014 and no explanation is given for that. In these circumstances, the conduct of the concerned official is not appreciated but in the interest of justice, the time of 15 days is granted to the learned Commissioner of Service Tax-III, Mumbai to dispose of the refund claim - Decided in favour of assessee.
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2014 (11) TMI 659
CENVAT Credit - input services - Advertisement and broadcasting agency service - assessee born the incidence of service tax or not - Held that:- Broadcasting of advertisement has been done on behalf of the appellant and the bills have also been raised on the appellant and the appellant has borne the incidence of Service Tax on the broadcasting service. Further, while passing the order dated 30.9.2013, the adjudicating authority has caused verification of the transactions undertaken by the appellant in respect of broadcasting services and advertising agency services. After verifying that the appellant had availed both the services and has also borne the incidence of Service Tax, he came to the conclusion that the appellant is rightly eligible for the benefit of the CENVAT Credit of the Service Tax paid on broadcasting service. The same ratio shall apply for the previous period also. Therefore, we do not find any merit in the impugned order. Accordingly, we set aside the same - Decided in favour of assessee.
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2014 (11) TMI 658
Waiver of pre deposit - Classification of service - Business Support service or Commercial training and coaching service - retention of amount out of the examination fee paid by the students - Held that:- In the case of commercial training or coaching centre where the student undergoes the training, it is considered that appellants have provided the service to M/s. Quint Red Wood India Consulting Pvt. Ltd., therefore, the service rendered comes under the category of business support service. In our view, the issue is debatable and contentious and therefore the amount deposited is sufficient for the purpose of hearing the appeal. Accordingly, the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal - Stay granted.
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2014 (11) TMI 657
CENVAT Credit - Imposition of interest on unutilized credit - Rule 14 - whether a mere taken of CENVAT credit facilities without actually using it, would carry interest as well as penalty - Held that:- Following decision of Strategic Engineering (P) Ltd. [2014 (11) TMI 89 - MADRAS HIGH COURT] - mere taking itself would not compel the assessee to pay interest as well as penalty - the only aspect that requires verification is whether the appellant had credit of more than the amount taken on capital goods during the relevant period or not. Since this requires factual verification and the details are not available, we consider that this issue also has to be remanded for consideration. - Decided in favour of assessee.
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2014 (11) TMI 631
Waiver of pre deposit - eligibility of credit taken on various services - classification of service has not been mentioned in the invoice/bill - Held that:- Even though this is not an essential requirement, to decide the nexus and the eligibility, the requirement as to under which service the service received is classifiable and how it is an input service for the appellant will have to be considered and for this purpose it would be necessary to see what was the classification under which tax was paid by service provider. Since for substantial amount, the matter is required to be remanded and a substantial portion has been accepted and not disputed, we consider it appropriate that the requirement of pre-deposit has to be waived and the matter is remanded at this stage itself for fresh adjudication - stay granted - matter remanded back.
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2014 (11) TMI 630
Condonation of delay - Non receipt of SCN - Revenue filed Misc. application for modification of an order where tribunal had condoned the delay of four years and nine months in filing appeal - Held that:- there is no evidence that the order sent by speed post was ever delivered to the appellants or it was received back - It is pertinent to note that when the Central Excise statute prescribes a procedure regarding the manner in which the decisions/orders/summons are to be served, a reference to the General Clauses Act would not be helpful in the wake of the clear cut and unambiguous decisions of the Hon'ble High Courts referred [2012 (6) TMI 304 - BOMBAY HIGH COURT] and [2013 (4) TMI 131 - ALLAHABAD HIGH COURT] as well as in the impugned order with regard to the service by speed post in the context of Section 37C ibid. As an aside, it can also be successfully contended that if speed post was to be treated or intended to be treated by the legislature as equivalent to the registered post the legislature would not have amended Section 37C in the year 2011 to specifically include speed post as one of the prescribed means of service of decision, orders and summons. - Decided against the revenue.
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2014 (11) TMI 629
Waiver of pre deposit - Construction of residential complex service - Works contract service - appellants submitted that the appellants had undertaken married accommodation project for army which involved construction of residential quarters. He submits that the service rendered by them cannot be considered as residential complex service since the army layout does not require approval of any competent authority which is one of the requirements in the definition of residential complex service. - Held that:- Definitions of works contract show clearly that even under works contract service, we have to go to the definition of residential complex to see what exactly was meant by residential complex. The definition of works contract service does not explain what is residential complex. Therefore, whether the service is works contract service or residential complex service, the principles to be considered are one and the same.
When a residential complex is built for use of the Govt whether it is by a sub-contractor under a main contractor or otherwise, end use is what is required to be considered. - When the end use of the residential complex is not covered by the definition of residential complex at all, the fact that the contractor is a main contractor or a sub-contractor in our opinion on a prima facie basis is not relevant.
Therefore, the decision of the Tribunal in the case of Khurana Engineering Ltd. (2010 (11) TMI 81 - CESTAT, AHMEDABAD) is prima facie applicable. In view of the above, it can be said that the appellants have made out a prima facie case in their favour for complete waiver. Accordingly, the requirement of pre-deposit is waived and stay against recovery is granted for a period of 180 days from the date of this order - Stay granted.
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2014 (11) TMI 628
Construction of industrial or commercial complex service - demand of service tax with penalties - Held that:- There is a small demand of amount of ₹ 1,11,389/- under the head construction of industrial or commercial complex service. appellant could not produce any proof that service had been rendered prior to 2005-06. It was submitted that it was for the Department to show that the service was rendered after 2005-06 and was liable to tax. However, in view of the fact that the amount involved is small, he would not like to contest the same and would prefer to save the time of the Tribunal to hear other appeals. Under these circumstances we accept the offer to make the payment of service tax and interest on this service and allow the request for waiver of penalties by invoking provision of Section 80 of the Finance Act, 1994. In this case, even though amount was received in 2005-06, the service became liable to tax from 2005-06 and being a new service, there is a possibility of confusion in the minds of assessees. demand of service tax with interest and penalty imposed in respect of residential complex service is set aside. The demand for service tax and interest in respect of commercial or industrial complex rendered for HSBC is upheld. The penalties imposed under all relevant statutory provisions of Finance Act, 1994 are set aside - Decided in favour of assessee.
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2014 (11) TMI 627
CENVAT credit - whether amount of services written of due to non receipt is amounting to exempted service - Held that:- Service receivers did not pay the consideration and was written off. Tax was payable only on receipt of consideration during the relevant period and if a customer did not pay the consideration and the same is written off, the service tax would not be payable but the service as such cannot be considered as an exempted service. - Decided in favor of assessee.
Demand of service tax on the ground that assessee filed to produce the copy of challans - Held that:- The appellants did not have a copy of the challan, it may not be appropriate to demand the tax again. No doubt the challan copy should have been kept by the appellant for a period of five years and failure to do so would be violation of the provisions of law. But the demand for tax has to be in accordance with law and only when the tax has not been paid, the question of demanding the same would arise. Since ST-3 return was not available to be shown and it was not shown before the original authority also and demand has been confirmed only on the ground that appellant could not produce proof in the form of challan, we consider it appropriate that the matter should be remanded for verifying the payment particulars and confirmation that amount has not been paid. - Matter remanded back - Decided in favour of assessee.
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