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Service Tax - Case Laws
Showing 361 to 380 of 2349 Records
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2014 (11) TMI 501
Waiver of pre deposit - Supply of tangible goods service - Site formation & clearances, excavation, earth moving and demolition service - Held that:- On perusal of details of the contracts/work orders executed by the appellant for various clients, it prima facie appears that the service provided by them was taxable as the site formation & clearances, excavation, ‘earth moving and demolition service’ under section 65(105)(zzza), ‘dredging service’ taxable under section 65(105)(zzb) and supply of tangible goods service taxable under section 65(105)(zzzzj) w.e.f. 16.05.08. It is also seen from the records that the appellant during the period of dispute had recovered an amount of ₹ 25,11,701/- from their customers towards service tax, the details of which are mentioned in para 9 of the Show Cause Notice and this fact is not disputed by the appellant. Though the appellant s plea is that the substantial amount received by them does not represent the turnover for any taxable service, this plea requires detailed examinations of the records which is possible only at the time of final hearing. - Partial stay granted.
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2014 (11) TMI 500
Waiver of pre deposit - Classification of service - Assessee entered in to an Agreement / Arrangement with Gujarat Cricket Association (GCA). By virtue of agreement / arrangement, the appellant could enter into agreement with companies and other clients for sponsorship of sports events and other sports marketing services in the stadium - Held that:- Under Operational assistance for marketing only is covered and when we talk of operational assistance of marketing, prima facie, it may not cover the advertisement or facilitation for advertisement which seems to be the activity of the appellant. Prima facie, we are unable to find merits in the stand taken by the Revenue. Nevertheless, the issue is debatable and involves interpretation of service vies-a-vies definition of service and classification of service and in such a situation, confirmation of demand by invoking extended period may not be sustainable. In this case, period involved is April 2007 to March 2008 and show-cause notice was issued on 20.12.2010, thereby rendering the entire demand is beyond normal period of limitation. In view of above, we consider that the appellant is entitled to waiver of pre-deposit. Accordingly, there shall be waiver of pre-deposit and stay against recovery of adjudged dues during pendency of the appeal - Stay granted.
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2014 (11) TMI 499
Renting of Immovable Property - cum-duty value - levy of service tax on security amount - Imposition of interest and penalty - Benefit of Section 80 - Held that:- Admittedly, the security deposit collected by the appellant is refundable at the time of termination of lease/rent agreement. Therefore, the said security deposit cannot form a part of service provided by the appellant. Therefore, on the said amount, service tax is not payable.
Cum-duty price - As per the agreement, the service tax is payable separately by the lessee. As the appellant has not recovered service tax from the lessee, they may recover separately. Therefore, the contention of the appellant as they have not recovered the service tax from the lessee, the rent recovered by them be treated as cum-service tax is not acceptable. In these circumstances, we hold that the rent received by the appellant shall be treated as gross value of taxable service and on the said amount the appellant is required to pay service tax.
Levy of penalty - On the understanding of the appellant that what amount of rent they received the same is treatable as cum-service tax, therefore, they have not paid full amount of service tax. This understanding by the appellant is not acceptable. In these circumstances, substantial benefit of Section 80(2) cannot be denied. In these circumstances, we hold that the appellant is entitled for the benefit of dropping the penalty on the appeal as per Section 80 (2) of the Finance Act, 1994 - Decided in favour of assessee.
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2014 (11) TMI 468
'Management, Maintenance and Repair service - Whether the CESTAT has erred in holding that Service tax is not required to be paid on goods used in the repairing process on which Excise duty and VAT has been paid on the value of the said goods, ignoring the fact that as per the contract the respondents were under an obligation to replace the damaged parts and to maintain the transformers in a proper working condition - Held that:- The assessee provided Management, Maintenance and Repair services for the repair of old and damaged transformers to Dakshinanchal Vidyut Vitaran Nigam Limited. The issue before the Tribunal was whether transformer oil, HV/LV coil and spare parts which are goods incorporated into transformers belonging to the Nigam, should be included for the purpose of quantifying the gross consideration received, as constituting the taxable value. The Tribunal has relied upon its own decisions and come to the conclusion that the law is settled; the principle of law being that where an agreement quantifies the value of materials separately from the value of services rendered, the value of the materials or goods would have to be excluded since that component is not liable to service tax. - Following decision of Commissioner of Customs and Central Excise Vs. J.P. Transformers [2014 (9) TMI 307 - ALLAHABAD HIGH COURT] - Decided against Revenue.
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2014 (11) TMI 467
Club or Association service - Whether in the facts and circumstances of the case, the Tribunal has committed substantial error of law in allowing appeal of the respondent with consequential relief by placing sole reliance on decision rendered by this Hon’ble Court in the case of Sports Club of Gujarat Ltd. v. Union of India reported in [2013 (7) TMI 510 - GUJARAT HIGH COURT] without recording comparative jurisdictional facts of both the cases and giving its finding thereon - Held that:- It is true that the decision of the Tribunal is somewhat brief and it would have been desirable if the Tribunal had given more elaborate facts in order to apply the ratio of the decision of this Court in case of Sports Club of Gujarat ltd. v. Union of India(supra). However, that by itself would not permit or atleast in facts of this case, to overturn the decision of the Tribunal when undisputably the facts are similar. As noted above, even in case of the present assessees, the notice issued was for levy of service tax on the service provided by a club to its members. - Decided against Revenue.
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2014 (11) TMI 466
Condonation of delay - Whether the Tribunal was right in law in having completely ignored the medical certificate filed in support of the delay condonation petition and dismissed the appeal solely on the ground that none appeared for the appellant before it - Held that:- Tribunal had failed to take note of the medical certificate issued for the purpose of condonation of delay. We have taken pains to peruse such a certificate filed at page 26 of the typed set of papers. It says that the appellant was suffering from HT- Angina and is advised not to travel long distance, since 20.7.2012 to 24.4.2013. The mere certificate from a doctor without any corresponding record, to show that the appellant was taking medical treatment during that period, cannot be accepted. Even the affidavit filed in support of the condonation petition says ill health supported by this certificate, which is bereft of details. It is also not clear whether this certificate was issued by the doctor, who treated the appellant and the certificate was issued on the basis of some material. The condonation of delay based on such vague affidavit and supporting vague certificate does not inspire this Court to consider the plea that the Tribunal ought not to have dismissed the appeal. - Decided against assessee.
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2014 (11) TMI 465
Condonation of delay - Whether the first respondent/Tribunal is right in rejecting the condonation of delay application for condoning the delay of 69 days in filing appeal filed by the appellant - Held that:- Branch Manager of the appellant company filed an affidavit confirming the shifting of the branch office and misplacing of the relevant papers. That apart, the conduct of the appellant does not indicate inaction or negligence in pursuing the matter. The explanation offered by the appellant for the marginal delay of 69 days constitutes a sufficient cause for condonation of delay and deserves to be accepted. - Delay condoned.
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2014 (11) TMI 464
Denial of refund claim - Unjust enrichment - payment of service tax is under protest or not - Notification 21/2009-ST - Held that:- It remains beyond doubt that the service tax levy during the period 2006 was operative only in the designated areas i.e. areas designated by notifications issued by Ministry of External Affairs and made applicable for levy of service tax under Service Tax notification No. 1/2002-ST dt. 1.3.2002. The survey sites where the appellants conducted their operations of seismic survey did not fall in the designated areas. It was only in 2009 that notification No. 21/2009-ST extended the service tax levy to the continental shelf and EEZ in which their survey sites did fall.
In the interpretation of a statute, when a person is held to be eligible to obtain the benefit of exemption notification, the same should be liberally construed. It is clear from the judgement that it would apply to cases where the effect of a beneficial statute is sought to be extended. In the present case we have a reverse position where the effect of the amended notification if read retrospectively will have the effect of punishment. We therefore do not agree with the order of Commissioner (Appeals), who has not read the judgement in its proper perspective.
Appellant only have a representative in India for communication purposes. The service was actually provided outside India because it was not performed in the designated areas i.e. in India. Even otherwise, the import of services became leviable to tax only w.e.f. 18th April 2006 and the period of dispute is prior to this date.
In the present case there was no order of assessment. There is no assessment order against which the appellant could file appeal. The appellants were simply asked to pay during investigations. And they deposited the amount under protest. This 'protest' itself is a challenge to the assessment. They have produced a certificate from ONGC that service tax has not been passed to ONGC & a certificate from the company's statutory auditors that the amount of service tax deposited is shown as receivables in the company's books which facts have not been controverted by the Commissioner. - Decided in favour of assessee.
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2014 (11) TMI 463
Maintainability of appeal - Section 86(2A) of the Finance Act, 1994 requires the Committee of Commissioners to review the order passed by the Commissioner (Appeals) and file appeal before the Tribunal - Revenue submits that there was no meeting of the Committee of Commissioners evidencing application of judicial mind at the time of arriving at the decision to prefer an appeal against the impugned order - Held that:- as there was no guidelines or instructions, by the Board regarding the functioning of the Committee of Commissioners till the Board s Circular dated 23.11.2012, the right of appeal of the Revenue created under the statute cannot be defeated on the ground that there was no meeting of the Committee of Commissioners, when, it has satisfied the test of reasonableness and fairness. We have already stated that the right of appeal is not merely a matter of procedure but it is a substantive right, which becomes vested in a party, cannot be taken away except by express enactment or provision. Hence, the preliminary objection raised by the learned Senior Advocate is ruled out - Decided in favor of Revenue.
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2014 (11) TMI 462
Waiver of pre deposit - Cargo Handling Service - Held that:- Applicant in their Profit & Loss Account mentioned the service as Cargo Transport Hire Charges . The learned counsel submitted that assessee are only picking up the cargo from one place and delivering it to other place within the country. However, this argument is not appreciated - Partial stay granted.
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2014 (11) TMI 461
Waiver of pre deposit - Programme Producer Service and ‘Advertising Agency Service - Payment credited at wrong place - Held that:- Applicant claimed that the amount as demanded was paid and it has also been paid at Chennai, but, it was credited in Mumbai Account. Prima facie, we are not satisfied with the submission of the learned counsel insofar as the amount was paid in the Chennai account. It is also seen that the applicant had not filed any ST-3 returns and therefore there is no scope of the Revenue to verify the payment. We are not clear as to how the applicant paid this amount as claimed by them but they have not filed any return at Chennai. Prima facie, we also find that the demand of tax on print media cost is not sustainable. Thus, there is a dispute in quantification of the demand. Partial stay granted.
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2014 (11) TMI 428
CENVAT Credit - scope of input services - eligibility of post sale services as input services - C & F agent service - Receipt of commission - liaison work pertaining to sales tax - scope of the term 'place of removal' - Held that:- the services in relation to the activities of removing goods from factory, storing at the depot or C & F agent’s premises and delivering the same to the customer are falling within the scope and ambit of the said definition clause. - the activities of the C & F agent are confirming to the definition of 'input service', and as such, the respondent is eligible to take Cenvat credit of service tax amount paid on the C & F commission.
Credit on Liaison work pertaining to sales tax - Held that:- such activities are incidental and ancillary to the depot operations, where the main function is to dispatch the goods to the customers. - credit allowed.
Commission agent's services - Held that:- mere selling agent of goods cannot be equated with the agent providing sales promotion activities - in the case in hand, the activities of M/s JAS Marketing as indicated in the show cause notice, clearly exhibit that it is the selling agent acting on behalf of the respondent. - Credit not allowed. - Decided partly in favour of Revenue.
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2014 (11) TMI 421
Simultaneous penalty u/s 76 & 78 - Re calculation of demand - Held that:- While passing Ext. P3, found it necessary to have recalculation to appropriate extent, based on the contentions taken from the part of the assessee, which admittedly is not done so far. To what extent the said quantification is necessary or will it absolve the petitioner from the liability, is the next point to be considered. The total liability to be satisfied by the petitioner as per the relevant provision is the actual extent of tax, plus penalty under Section 76 which is an equal amount, besides penalty under Section 78, which is of another equal extent. By virtue of the nature of dispute and even going by the admission from the part of the petitioner, the liability to be satisfied by the petitioner is ₹ 14,88,486/-. The total liability to be cleared by the petitioner is three times, less the amount if any, satisfied. - Petition disposed of.
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2014 (11) TMI 394
Business Auxiliary service - availment of services of procuring orders and promotion of their business from foreign company - Bar of limitation - Held that:- Prima facie, the services being received by the appellant are covered by Clause (ii) of the definition of Business Auxiliary Service as given in Section 65 (19). It is seen that the show cause notice exactly mentioned the nature of the service received by the appellant from M/s Software Service, LC, USA. Therefore, in our prima facie view, just because the show cause notice did not mention the exact clause of Section 65 (19) under which the services being received by the appellant are covered, this would not vitiate the show cause notice and, in our prima facie view, the judgment of the Tribunal in the case of ITC Ltd. vs. CST, Delhi (2013 (8) TMI 148 - CESTAT NEW DELHI) cited by the learned Counsel of the appellant is not applicable to the facts of this case.
Therefore, at least for the period prior to October 2009, it cannot be said that the Department was aware of the receipt of taxable services by the appellant from M/s Software Services, LC, USA. Only in respect of receipt of service during the period w.e.f. October 2009 it can be said that the Department was aware of the transactions. Therefore, we are of prima facie view that the appellant’s plea that the bulk of the service tax demand is hit by limitation and the longer limitation period under proviso to Section 173 (1) would not be applicable, is not entirely acceptable. Therefore, this does not appear to be a case for total waiver. - Partial stay granted.
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2014 (11) TMI 393
Levy of service tax on Supply of food and beverages in a restaurant - Constitutional validity of sub clauses (zzzzv) and (zzzzw) of Clause 105 of Section 65 of the Finance Act, 1994, as amended by Finance Act, 2011 - single Judge found that the matters covered by sub clauses (zzzzv) and (zzzzw) of Clause 105 of Section 65 of the Finance Act, 1994, as amended by Finance Act, 2011, are matters enumerated in Entries 54 and 62 respectively, of List II of the Seventh Schedule to the Constitution and hence, beyond the legislative competence of the Union to impose tax on such matters, invoking Entry 97 of List I of the Seventh Schedule of the Constitution - Held that:- Supply of food and beverages in a restaurant, as indicated above, prior to the Constitution (Forty Sixth Amendment) Act, the same was considered to be wholly a service. When the whole transaction was held to be a service, the States could not have imposed tax in respect of that transaction. However, by virtue of the Constitution (Forty Sixth Amendment) Act, this transaction was also deemed to be a sale, conferring authority on the States to tax on the whole consideration received by the person making the supply of food and beverages.
Thus, after the Constitution (Forty Sixth Amendment) Act, tax could be imposed and levied by the States on the value of the goods involved in the works contract and tax could be imposed and levied by the Union for the value of the services involved in the works contract. As far as the supply of food and beverages in a restaurant is concerned, after the Constitution (Forty Sixth Amendment) Act, tax could be imposed and levied for the whole amount of the consideration received by the person making the supply of the food and beverages. Sub clause (zzzzv) of Clause 105 of Section 65 of the Finance Act, 1994, relates to the supply of food and other consumables in restaurants. After the Constitution (Forty Sixth Amendment) Act, the said activity is deemed as a sale of goods. After the Constitution (Forty Sixth Amendment) Act, it cannot be said that it is an activity of service. When the said activity is deemed to be a sale of the food and other articles of human consumption, by a constitutional definition, tax on the said activity can be imposed only by the States in view of Entry 54 in List II of the Seventh Schedule.
In view of the words used in article 366(29A) (f), the bill raised on the customer cannot be split as charged for the service part and as charged for the food part and that the supply of food by the restaurant owner to the customer, though it may be a part of the service that he renders by providing good furniture, furnishings and fixtures, linen, crockery and cutlery, music etc., tax is leviable for the whole amount of the consideration received by the restaurant owner. In other words, in view of the aforesaid constitutional amendment, it cannot be said that there is any service involved in the supply of food and other articles of human consumption in a restaurant. It is thus evident that the matter covered by sub-clause (zzzzv) of Clause 105 of Section 65 of the Finance Act, 1994, as amended by Finance Act, 2011 is a matter enumerated in Entry 54 of List II of Seventh Schedule and the States alone have the legislative competence to enact any law imposing tax on the said matter.
Matter covered by sub-clause (zzzzw) of Clause 105 of Section 65 of the Finance Act, 1994, as amended by Finance Act, 2011, is a matter enumerated in Entry 62 of List II of Seventh Schedule and the States alone have the legislative competence to enact any law imposing tax on the said matter. since the whole of the consideration received by a restaurant owner for supply of food and other articles of the human consumption, including the service part of the transaction, is exigible to tax by the State by virtue of the constitutional definition, it is not open to the Union to characterise the same transaction as a service for imposition and levy of service tax. No reason to interfere with the decision of the learned single Judge - Decided against Revenue.
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2014 (11) TMI 392
Waiver of pre deposit - transportation of Air Cargo service - Financial hardship - Held that:- There is force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant - order of the Tribunal is modified to the effect that the appellant shall make a pre-deposit of ₹ 50,00,000 less the amount already deposited, if any, towards pre-deposit - Partial stay granted.
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2014 (11) TMI 363
Rectification of mistake - Decision given on incorrect judgment - Held that:- though the Tribunal’s final order relies upon the judgment of the Tribunal in the case of Deepak Transport Bus Service vs. CCE, Pune - III (2012 (6) TMI 390 - CESTAT, Mumbai), this order though a stay order, is based on the judgment of Hon’ble Madras High Court in the case of Secretary Federation of Bus Operator Association of Tamilnadu vs. Union of India (2001 (4) TMI 7 - HIGH COURT MADRAS) and also the judgment of Hon’ble Punjab & Haryana High Court in the case of CCE, Chandigarh vs. Kuldeep Singh Gill (2010 (4) TMI 283 - PUNJAB & HARYANA HIGH COURT). The plea that the judgments of these High Courts are not applicable to the facts of this case is a point of law and not a point of mistake apparent from record and, hence, the same cannot be considered at this stage. Moreover, in pursuance of the final order, the matters have already been decided denovo by the Commissioner (Appeals) on the issue of eligibility of the appellants for exemption under Notification No. 1/2006-ST and 6/2005-ST and for this reason, at this stage the impugned order cannot be recalled - Rectification denied.
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2014 (11) TMI 337
Waiver of pre deposit - import of services - claim of the appellant that there is no proper classification of the service under which the appellant was liable to pay service tax as a receiver - Held that:- provider of service is based outside India, the recipient of service is based in India, the payment is made by the recipient to the provider, the service received is used in relation to business or commerce, the service is received from outside India and is leviable to service tax as per the provisions cited above - in the absence of clear classification of service, appellant has made out a prima facie case.
CENVAT Credit - input services - assessee is engaged in export of iron ore which is excisable but exported without payment of duty - Held that:- As regards the demand for ₹ 1,11,71,268/- which is the CENVAT credit availed of the service tax paid to M/s. Bothra Shipping Services for leasing the crane, it has been held that the assessee has not used the crane for providing service. In this case, the claim of the assessee was that it was used in relation to manufacture of goods which is dutiable but exported. They relied on the decision in the case of Repro India Ltd. Vs. UOI [2007 (12) TMI 209 - BOMBAY HIGH COURT]. services were used in respect of iron ore which was ultimately exported - appellant has made out a prima facie case for complete waiver and accordingly the requirement of predeposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.
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2014 (11) TMI 336
Commercial or Industrial Construction service - services rendered 'in relation to' transmission and distribution of electricity - exemption from service tax vide Notification No. 45/10-ST dated 20.7.2010 - Held that:- out of the total demand confirmed of ₹ 2,04,14,368/- bulk of the demand of ₹ 1,90,47,124/- pertains to Commercial or Industrial Construction service rendered to Maharashtra State Electricity Transmission Co. Ltd., Maharashtra State Electricity Distribution Co. Ltd., Sunil Hi-Tech, Suraj Constructions, V.B. Bhike, etc. for transmission of electricity. Vide Notification 45/10-ST, all taxable services rendered 'in relation to' transmission and distribution of electricity have been exempted from the purview of service tax. The expression 'relating to' is very wide in its amplitude and scope as held by the Hon'ble Apex Court in Doypack Systems P. Ltd. [1988 (2) TMI 61 - SUPREME COURT OF INDIA]. Therefore, all taxable services rendered in relation to transmission/distribution of electricity would be eligible for the benefit of exemption under the said Notification for the period prior to 27.02.2010.
Various activities undertaken by the appellant, though classifiable under Commercial or Industrial Construction prior to 01.06.2007 or under works contract service on or after 01.06.2007, would be eligible for the benefit of exemption as held by this Tribunal in the case of Noida Power Co. Ltd. [2013 (8) TMI 746 - CESTAT NEW DELHI], Pashchimanchal Vidyut Vitran Nigam [2012 (8) TMI 688 - CESTAT, NEW DELHI], Purvanchal Vidyut Vitran Nigam [2012 (10) TMI 104 - CESTAT, NEW DELHI] and Shri Ganesh Enterprises [2014 (2) TMI 436 - CESTAT BANGALORE]. Therefore, the confirmation of service tax demand in respect of the construction, maintenance or repair activities undertaken by the appellant so far as it relates to the transmission/distribution of electricity cannot be sustained in law. in respect of the other activities of the appellant which are not related to either transmission or distribution of electricity, the demands confirmed are upheld along with interest - since the issue relates to interpretation of an exemption Notification and the statutory provisions, imposition of penalties are not warranted - Decided partly in favour of assssee.
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2014 (11) TMI 335
Waiver of pre deposit - Manpower Recruitment or Supply Agency Service - appellants deputed certain personnel to JBM premises to carry out checks on the quality of biscuits manufactured by JBM on their behalf - Salaries of the said personnel were recovered from job-workers - Held that:- the deputed personnel continue to be employees of M/s Britannia Industries Ltd. (the appellant) and the service provided by them are for the benefit of the appellant and not for the benefit of JBM at all. The appellants are actually forcing upon JBM their personnel to supervise their operations and it is not that JBM are requesting for assistance of these personnel. In the case of manpower supply, the receiver makes a request for service and therefore, the service is provided. Prima facie, we do not find relationship of ‘manpower supply service’ provider and service receiver between the appellants and JBM. Moreover, we also find the entire demand is time-barred - Stay granted.
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