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Service Tax - Case Laws
Showing 341 to 360 of 2349 Records
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2014 (11) TMI 626
Reversal of CENVAT Credit - Cargo Handling Service - Held that:- Appellant have no other exempted service except being attributable to export i.e. services rendered for facilitating export which are not taxable by virtue of export. Therefore, I find that no reversal is required under the provisions of Rule 6(3)(ii) read with Rule 6(3A) as the appellant has availed credit suo motu mistakenly. Further, I hold that the appellant is entitled to the benefit as provided under Rule 6(6)(v) of the Cenvat Credit Rules, 2004. In this view of the matter, the impugned order is set aside - Decided in favour of assessee.
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2014 (11) TMI 625
Penalties under Sections, 76, 77 and 78 - Issue of SCN u/s 73 - service tax liability along with interest is charged before the issue of show cause notice - Held that:- From a perusal of Section 73(3) it is abundantly clear that once the assessee discharges the service tax liability along with interest thereon, either on his own account or on pointing out by the department, the proceedings abate and there is no need for issue of show cause notice. The explanation makes it abundantly clear that once the payment are made, no penalty can be imposed under the provisions of Chapter V of the Finance Act, 1994. The Board's circular relied upon by the appellants clarifies this position. In spite of the clear provision in law and clarification given by the Board in this regard, the appellate authority has completely ignored these provisions and chosen to proceed with imposition of penalties which is clearly unsustainable in law. Therefore, I set aside the penalties imposed on the appellants under Sections 76, 77 and 78 of the Finance Act, 1994. adjudicating authority directed to refund, within a period of one month from the date of receipt of this order, the amount of penalty pre-deposited by the appellants subsequent to passing of the impugned order - Decided in favour of assessee.
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2014 (11) TMI 624
Maintenance and repair service rendered to Indian Navy - Levy of tax on gross value received for the services provided by them - Discharge of liability only on a notional percentage - Penalty u/s 76 & 77 - Exemption under Notification No. 31/2010-ST dated 22.06.2010 - Held that:- Once the amount is collected and billed as service tax, it has to be paid to Government and in this case it has been rightly paid. Nevertheless just because an assessee shows some amount as service tax, collects the same and pays it to Government, if the whole activity is not liable to tax, just because he paid the tax would not render him ineligible for such exemption. Therefore we find that the decision taking a view that exemption notification benefit is not available to the appellant in respect of services rendered to Indian Navy cannot be sustained. for the balance portion of the demand, the matter has to be remanded to the original authority - Decided in favour of assessee.
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2014 (11) TMI 586
Composite transactions - Discharge of service tax on stevedoring operations - Cargo Handling Services and port service - Discharge of tax under reverse charge mechanism - Issue of separate invoices - Held that:- Appellants are not charging the lump sum amount for both transportation and cargo handling. Separate purchase orders are filed, separate bills are raised and separate heads have been fixed. The view taken by the Commissioner that only when the appellant collected actual amount incurred they can be treated separately is not correct. It appears that Commissioner has not applied the meaning of amount charged correctly. Amount charged does not mean the actual amount payable - claim of the learned counsel that the 3 activities undertaken by them namely handling of fertilizers and handling of the same within the port, transportation from port to outside the port and thereafter bagging activity are 3 independent separate activities, separately charged and separately billed for. That being the position, it cannot be treated as a composite activity at all. Moreover, service tax is payable on GTA service and there is no evidence that service tax has not been paid on GTA service by IPL. In our opinion, transportation activity in this case is a distinct activity since it comes in the middle of handling of cargo within the port and bagging outside the port and unless the appellants charged a lump sum amount for all the three activities and there is no divisibility according to the understanding of both the parties, it cannot be treated as a composite contract. Therefore in our opinion appellants have made out a case on merits - Stay granted.
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2014 (11) TMI 585
Banking and other Financial Services - whether the sale of RBI Bonds on commission basis would be liable to service tax under “Banking and other Financial Services” for the period prior to 10/09/2004 or not - Held that:- Unlike other banks, RBI does not undertake borrowing or lending on its own. Whenever the RBI undertakes borrowing activities, it is on behalf of the Government of India to manage the Indian economy which its constitutional responsibility. Therefore, the lending or borrowing of money by the Government is a sovereign function and on such functions there cannot be any tax liability whether by way of direct tax or by way of indirect tax. This is the principle followed by this Tribunal in the case of HDFC Bank [2014 (1) TMI 1611 - CESTAT MUMBAI] and Canara Bank case (2012 (6) TMI 274 - CESTAT, AHMEDABAD). - Decided in favour of assessee.
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2014 (11) TMI 584
Waiver of pre deposit - Classification of service - Management or business consultancy service or business auxiliary service - Held that:- It would be difficult to come to a final conclusion as regards prima facie merit or the correct classification. The issue is debatable. The correct classification would require detailed consideration of the actual activities undertaken, the work awarded by local self-Government institutions to the appellants, terms of payments, terms of agreement and the nature of service provided, etc., which would require consideration of all the relevant details, some of which have not even been placed before us at this stage. It cannot be said that appellants have made out prima facie case in their favour since the work undertaken by them includes study of work done by local self-Government organizations, computerization thereof, customization of the software, implementation, training, etc., which would definitely can be considered as relatable to management activity of the Government. Therefore, we consider that if the appellant deposits 20% of the service tax demanded that would be sufficient for hearing the appeal. - Partial stay granted.
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2014 (11) TMI 583
Business Support Service - appellant had been collecting the Bus Adda Fee, the amounts for sale of space for advertisement and also rent & Tehbazari - Extended period of limitation - Interest u/s 75 - Penalty u/s 77 & 78 - Held that:- Perusal of Board’s Circular No. 89/7.2006 dated 18.12.2006 reveals that it does have the potential to cause confusion that the public authority rendering service in public interest and charging fee for the same as per their statutory powers may not be liable to service tax although a careful reading of the said circular would reveal that it was referring to only such fees which are deposited in the Government account which is clearly not the case here. Further, though the Commissioner (appeals’) orders do not constitute precedence nor are they binding on CESTAT, the fact that some Commissioner (Appeals) have actually held such bus adda fee as not liable to service tax clearly supports the contention of the appellants that they were under the bona fide belief that the bus adda fee was not liable to service tax.
Prima facie the appellants have been able to make out a fairly reasonable case with regard to the non-invocability of the extended period. In view of that and having regard to the fact that (i) the bus adda fee accounts for approximately 2/3rd of the impugned demand and (ii) the appellants had not contested the demand relating to sale of space for advertisement and rent & tehbazari we order a pre-deposit - Partial stay granted.
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2014 (11) TMI 582
Erection, Commissioning or Installation services - Imposition of interest and penalty - Held that:- In this case the appellants have paid customs duty on the entire value which includes erection, commissioning and installation also, if at all, any assistance is provided. Moreover as submitted by learned counsel, erection, commissioning and installation was done by a local supplier. Moreover we also find considerable force in the submission that contract can also be considered as a ‘works contract’ which came into levy only w.e.f. 01.06.2007 and issue has been referred to 5 Member Bench and therefore on that ground also when the demand is for extended period request for waiver can be considered favourably - Stay granted.
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2014 (11) TMI 581
Waiver of pre deposit - Renting of Immovable Property Services - Held that:- Applicant had given on rent various commercial complexes to various commercial concerns. It is noticed that the applicant declared themselves a Charitable Trust under Income-tax Act. The CBEC s Circular, dated 23.08.2007 clarified that the assessee is eligible for exemption under Income-tax Act on the ground of being a Charitable Institution and is of no consequence or has any relevance for service tax purpose. In the present case, the facts remain that the demand of service tax is on the commercial complexes which was given on rent to various commercial concerns. on each of the appellant s clearing all the arrears as on the said date in three equated instalments, on or before 1st March, 2012, 1st May, 2012 and 1st July, 2012, no coercive steps shall be taken against the appellants for recovery of the said arrears. However, in the event of default on the part of the appellants in deposit of any one of the instalments by the due date, it will be open to the respondents to recovery the entire amount in arrears forthwith - Partial stay granted.
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2014 (11) TMI 580
Valuation - Erection, commissioning and installation service - Imposition of interest and penalty - Held that:- Service tax levy is confined to supply/rendering/provision of service. It does not extend to supply of goods, if the same is involved in a composite contract involving supply of service. Therefore, in a contract which involves both supply of goods as well as supply of services, service tax liability can be fastened only on the value of the service rendered. This is the position in law as explained by the hon'ble Delhi High Court in the case of G.D. Builders vs. Union of India - [2013 (11) TMI 1004 - DELHI HIGH COURT]. Therefore, the question of inclusion of value of goods supplied in a composite contract for the purpose of levy of service tax is clearly unsustainable. Therefore, the matter has to go back to the adjudicating authority to determine and exclude the value of the goods supplied in the contract undertaken by the appellant and thereafter, re-determine the service tax liability of the appellant - Matter remanded back - Decided in favour of assessee.
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2014 (11) TMI 545
Levy of service tax on discount received by advertising agency - Whether service tax levy is sustainable in respect of discounts/incentives received by the advertising agency from the print/broadcast media in respect of advertisements placed by the said agencies on behalf of customers - Held that:- Tribunal in the case of Grey Worldwide (I) Pvt. Ltd. case, cited [2014 (9) TMI 180 - CESTAT MUMBAI], has already held that the service tax demands on these receipts are not sustainable, in the present case also, the same ratio has to be applied. Accordingly, we set aside the demands confirmed against the assessee-appellants M/s. Group M Media India Pvt. Ltd. and M/s. Lintas India Pvt. Ltd. - Decided in favour of assessee.
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2014 (11) TMI 544
CENVAT Credit - Balance of Cenvat Credit availed for central excise purpose, after availing exemption under central excise, utilized for payment of service tax - demand raised for disallowing cenvat credit alleged to have been lapsed and wrongly availed by respondent. - Held that:- Respondent is a manufacture of excisable goods Synthetic Filament Yarn and duly registered with the Central Excise Department. The respondents also registered with the service tax authorities as "commission agent", which is classifiable under ‘Business Auxiliary Services’ and discharging service tax on the output service. Therefore, the respondents are not only a manufacturer of excisable goods but also the provider of output services and both the activities are carried out in the same premises.
Once it is held that the respondents are eligible for availment of input credit, they can utilize the cenvat credit available with them either for payment of excise duty on the final products or for payment of service tax on the output services as stipulated in the sub-rule (4) of Rule 3 of CCR 2004. The restrictions on utilization of cenvat credit stipulated in the CCR relates only for specific type of duties i.e. education cess on excisable goods or payment of educational cess on output services. There is no restriction for utilization of common input credit availed on the inputs and also on input services for payment of excise duty or service tax. there is no infirmity in the order of Commissioner (Appeals) in holding that utilization of input cenvat credit availed by the respondents for payment of service tax on the output service of Business Auxiliary Services rendered by them - Decided against Revenue.
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2014 (11) TMI 543
Waiver of pre deposit - CENVAT Credit - various input services - place of removal - Held that:- As per Section 4(3)(c), the place of removal is inter-alia any other place or premises from where the excisable goods are to be sold after the clearance from the factory from where the goods are removed. In our view the appellants have been able to make out a good prima-facie case that in their case the place of removal will be retail outlets in respect of goods sold from their retail outlets and the agents warehouse in respect of goods sold from there. In such a scenario all the services listed above would prima-facie qualify as input services as they are in relation to advertisement, legal work, sales promotion, market research, storage upto the place of removal and outward transportation upto the place of removal, etc. which are all duly covered prima-facie in the scope of the definition of input service - Stay granted.
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2014 (11) TMI 542
Non verification of available records - Held that:- Though documents were there but no verification was got done by the adjudicating authority. Service tax already stands paid. matter requires to be sent back to adjudicating authority for verification of authenticity of documents and for passing fresh order - Decided in favour of assessee.
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2014 (11) TMI 541
Business Auxiliary Service - Services of Verification of information given by customers applying for credit cards, home loans, auto loans etc. are covered under clause (iv) of Business Auxiliary Services during the period 01.07.2003 to 09.09.2004 - Held that:- Prior to 10.09.2004, the activity undertaken by the appellant clearly falls under Clause (iv) of Section 65(19) of the Finance Act, 1994. Therefore, prior to 10.09.2004, we hold that the appellant is required to pay service tax and the demand for service tax for that period is confirmed.
With effect from 10.09.2004 onwards the appellants are not required to pay service tax. We find support to the case from the decision of this Tribunal in the case of S.R. Kalyanakrishnan v. CCE - [2007 (8) TMI 198 - CESTAT, BANGALORE] wherein this Tribunal has observed that verification of information furnished by loan seekers cannot be treated as promotion their business. Therefore, such activity does not fall under “Business Auxiliary Service” but with effect from 01.05.2006, it falls under the category of “Business Support Service”. Following the precedent decision in the case of S.R. Kalyanakrishnan (supra), we hold that for the period 10.9.2004 onwards the appellants are not liable for service tax under the category of “Business Auxiliary Service” on their activities.
Appellants are liable to pay service tax for the period 01.07.2003 to 09.09.2004 on the services provided to ICICI and IDBI Banks under the category of “BAS”. With these terms the appellants are directed to pay service tax for the said period along with interest. as the appellants are paying service tax on the same activities provided to other banks therefore, we impose penalties equivalent to their service tax liabilities on the appellants under Section 78 of the Finance Act, 1994. We further find that as the appellants have not charged service tax separately from ICICI and IDBI Banks therefore, the remunerations received towards providing service, service tax shall be treated as cum-service charges - Decided partly in favour of assessee.
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2014 (11) TMI 539
Condonation of delay - Bar of limitation - Cargo Handling Service - Held that:- appellant has shown sufficient reasons that their Chartered Accountant, Shri KC Jain, who appeared before the Commissioner (Appeals), Jaipur, I, Jaipur, had undergone heart surgery and was not attending his office regularly and even Ms. Iti, (CA) who was looking into the legal matters of the family also left her services and Mr. Ravi Khandelwal who was looking after the matter also met with major accident and he lost his legs which has to be considered on its face value and in our considered view there was reasonable justification offered by the appellant to meet out sufficient cause in seeking condonation of delay and merely because no documentary evidence was placed on record in support thereof the reason assigned could not have been brushed aside in totality in absence of their being any counter or objection raised by the department.
Apart from it, the delay as such in no manner defeats the right of any third party and besides it, the service tax was introduced for the assessees who are carrying “cargo handling service” for the first time by inserting Clause 20 of Finance Act, w.e.f. 16.8.2002 and the period in question is 16.8.2002 to 30.6.2003 and the service tax and interest was deposited by the assessee indisputably before the show cause notice was served and short payment against service tax of only ₹ 181/- remain outstanding under the provisions of Sec.73 (1) of the Finance Act, 1994 and penalty u/s.76 & 78 of the Finance Act, 1944. appeal preferred by the appellant before the Tribunal deserves indulgence to be heard on merits - appeal restored before tribunal - Decided in favour of assessee.
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2014 (11) TMI 505
Modification of order - Order passed in assessee's absence - in the cause list published by CESTAT, appeal and stay application filed by the appellant did not figure - Held that:- The notices are often issued few months in advance and at the time of issue of notice, there is no guarantee / certainty that there would a Bench on that date for hearing. That is why the cause list is published every week. Therefore, if an assessee finds that his case is not listed in the cause list published and does not appear for personal hearing, it is difficult to find it as assessee’s fault. If an assessee has to ascertain from office of the Tribunal over phone whether their case is listed or not, the very purpose of publishing cause list in website is defeated. In our opinion, if an assessee has made efforts to verify the cause list and their case is not found listed, they cannot be found fault with. In this case, it is so. Therefore, we have to take a view that paragraph 6 of CESTATs Circular applies to this case and the matter has to be considered afresh. - Decided in favour of assessee.
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2014 (11) TMI 504
Waiver of pre deposit - CENVAT Credit - Trading activity - Held that:- Bench in the case of Lacto Cosmetics (Vapi) Pvt.Ltd Vs CCE Daman [2012 (12) TMI 642 - CESTAT AHMEDABAD] and Gulf Oil Corpn. Ltd. Vs CCE Vapi [2012 (8) TMI 45 - CESTAT, AHMEDABAD] has held that credit with respect to services availed in trading activities is not admissible. High Court of Gujarat in the case of Lally Automobiles Pvt.Ltd Vs Commissioner (Adjudication) Central Excise [2013 (10) TMI 863 - DELHI HIGH COURT] has also ordered for a pre-deposit in one such case. appellant has not made out a, prima facie, case for complete waiver of the confirmed demand - Partial stay granted.
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2014 (11) TMI 503
Banking and Finance Institution service - Reverse charge mechanism - Invocation of extended period of limitation - Held that:- money lender BNP Paribas has secured the loan amount lended (sic) to appellant from COFACE France and have secured their money they have paid insurance guarantee to COFACE France. When these facts are clear in this case, therefore, the service receiver is BNP Paribas and the service provider is COFACE, France. The appellant is only the beneficiary of the transaction held between BNP Paribas and COFACE, France. As the appellant is neither service provider nor service recipient, the appellant is not liable to pay service tax at all under Reverse charge mechanism - Decided in favour of assessee.
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2014 (11) TMI 502
Waiver of pre deposit - Business Auxiliary service - services in relation to manufacture and processing of goods by the applicant to M/s. SKOL Breweries Ltd. - applicant has merged with M/s. SKOL Breweries Ltd. with effect from 31.03.2009 - Held that:- Effective date of the merger is on 31.03.2009. Therefore, the question of rendering service by the applicant to M/s. SKOL Breweries Ltd. does not arise. In these circumstances, the applicant has made out a case for complete waiver of pre-deposit. - Stay granted.
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