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Service Tax - Case Laws
Showing 401 to 420 of 2349 Records
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2014 (11) TMI 208
Erection, installation and commissioning services - laying of submarine pipelines - Held that:- Board's own Circular dated 24/05/2010 makes it absolutely clear that unless the activity undertaken results in the emergence of an "erected, installed and commissioned plant, machinery, equipment or structure", the activity will not come under the category of erection, commissioning and installation service. Pipelines cannot be construed as a plant, machinery or equipment or structure. Further, the said circular also clarifies that laying of cables under or alongside road or railway tracks, etc. is not a taxable service under Section 65(105) of the Finance Act, 1994. If laying of cables cannot be a taxable service, adopting the same logic, the laying of pipeline also cannot be construed as a taxable service. - laying of submarine pipelines would not come within the purview of erection, commissioning and installation service.
Further, in the case of PSL Ltd. [2013 (12) TMI 1063 - CESTAT AHMEDABAD] this Tribunal noted that laying of pipelines for water supply projects would come under the "construction service" and since only commercial construction is liable to service tax and the pipelines for water supply are not commercial activities, the same would not be taxable. Thus, it may be seen that this Tribunal has consistently been holding the view that the activity of laying of pipelines would not come within the purview of "erection, commissioning and installation service" and it would be more appropriate classifiable under "Commercial or industrial construction service". laying of pipelines would not come within the category of "erection, commissioning and installation service" and therefore, the impugned order is not sustainable in law - Following decision of Hyundai Heavy Industries Co. Ltd. [2013 (11) TMI 917 - CESTAT MUMBAI] - Decided against Revenue.
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2014 (11) TMI 207
Waiver of pre deposit - taxability of activities in the nature of services provided by partners to the partnership firm – Whether allowing trademarks of overseas partner to be used by partnership firm in India is taxable under the category of "intellectual property service" – Whether activity of Indian partners allowing their land, building and other properties to be used by the firm is taxable under category of 'business support service' – Held that:- When the firm is not a legal person and is not a distinct entity and is not distinct and independent from partners, it is difficult to accept the view upheld by the learned Commissioner that there is a service receiver-provider relationship between the two partners and the firm. When the firm is not at all a person and is not distinct from the partners, this observation is difficult to sustain.
Naturally the entire amount of gross profit received cannot be attributed to licence even if it is assumed that it is so. Further the submission made by the learned counsel that somehow many of the licences for which licensing agreement provided for usage by HDC were actually developed by the firm itself and according to the appellants, the registration had to be done in the name of one of the partners, because the partnership firm has no legal personality. At the same time to enable the firm to use the name and since the products were manufactured in the name of the firm, a licence agreement would be required. In our opinion, even if it is assumed that a firm is a distinct entity, the nature of transactions between the two partners and the firm would be one of joint-venture or a profit sharing operation and it is difficult to sustain the stand that there is a service receiver and provider relationship. – Stay granted.
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2014 (11) TMI 206
Interest on delayed refund claim - whether the appellant is eligible for interest on the refunds sanctioned belatedly - Held that:- refund has been ordered under Rule 5 of the Rules and there was a delay in sanctioning the refund, in the circumstances, the provisions of Section 11BB of the Act would clearly be attracted and as such the Tribunal was justified in holding that the provisions of clause (c) of the proviso to sub-section (2) of Section 11B and consequently Section 11BB of the Act are clearly applicable to the facts of the present case and as such the respondent is entitled to interest on delayed refund of Cenvat Credit as claimed by it.
As per the instructions issued by the Central Government refunds under Rule 57F of the erstwhile Central Excise Rules, 1944 would be governed by the provisions of Section 11BB of the Act. Rule 57F of the said Rules made provision for the manner of utilisation of inputs and credit allowed in respect of duty paid thereon. Sub-rule (13) of rule 57F made provision for refund of accumulated credit in case where for any reason it was not possible to adjust the same in the manner provided under the said sub-rule. Sub-rule (13) of Rule 57F of the said Rules is more or less in pari materia to the provisions of Rule 5 of the Cenvat Credit Rules, 2002/2004. Thus, the instructions issued by the Central Government under the aforesaid Circular would also be applicable to refunds under rule 5 of the Rules, which instructions are binding on the revenue. - Decided against Revenue.
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2014 (11) TMI 205
Interest on delayed refund - refund of service tax paid on the services rendered to them in an SEZ unit - Whether the appellant is eligible for interest on the refunds sanctioned belatedly. - Held that:- It is undisputed that the appellant had filed the refund of service tax paid on the services rendered to them in an SEZ unit - admittedly the refund has been ordered under Rule 5 of the Rules and there was a delay in sanctioning the refund, in the circumstances, the provisions of Section 11BB of the Act would clearly be attracted and as such the Tribunal was justified in holding that the provisions of clause (c) of the proviso to sub-section (2) of Section 11B and consequently Section 11BB of the Act are clearly applicable to the facts of the present case and as such the respondent is entitled to interest on delayed refund of Cenvat Credit as claimed by it.
Another aspect of the matter is that when Section 11BB of the Act had newly been inserted by the Finance Act, 1995, the Government of India, Ministry of Finance (Department of Revenue) has issued Circular : 130/41/95-CX., dated 30th May, 1995 (which finds reference in the impugned order of the Tribunal) issuing instructions regarding refunds claimed under Section 11BB of the Act. The Annexure thereto provides for the checklist of documents which are required to be filed with refund claims. Item No. 3 thereunder relates to Refund of credit of duty paid on excisable goods used as input in accordance with Rule 57FD. Thus, as per the instructions issued by the Central Government refunds under Rule 57F of the erstwhile Central Excise Rules, 1944 would be governed by the provisions of Section 11BB of the Act. Rule 57F of the said Rules made provision for the manner of utilisation of inputs and credit allowed in respect of duty paid thereon. Sub-rule (13) of rule 57F made provision for refund of accumulated credit in case where for any reason it was not possible to adjust the same in the manner provided under the said sub-rule. Sub-rule (13) of Rule 57F of the said Rules is more or less in pari materia to the provisions of Rule 5 of the Cenvat Credit Rules, 2002/2004. Thus, the instructions issued by the Central Government under the aforesaid Circular would also be applicable to refunds under rule 5 of the Rules, which instructions are binding on the revenue. - impugned orders rejecting the claim of interest of the appellant are incorrect - Decided in favour of assessee.
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2014 (11) TMI 169
Waiver of pre-deposit - Import of Information Technology Software - sale or service - right to use the software - end-user license is being provided to the customers in India. Appellant is the distributor of such end-use license - Held that:- It is now settled law that only when the software as such is sold and is not a license to use the same, only then it becomes a transaction of sale. In this case there is neither a media containing a software nor a software itself as such has been sold to the customers. It was also mentioned by the learned counsel that even the purchase order is obtained by them and transmitted to the principal and principal only thereafter approves. The submission was that appellant was only a distributor and is only engaged in marketing, promotion of the software, etc., and therefore it can be said that appellant is providing ‘Business Auxiliary Service’ (BAS) but not the ITSS. Unfortunately, even though the nature of service to some extent may be covered by BAS definition, in view of the specific coverage under clause (v) of the definition as considered by us above, the submission that the appellant’s service is correctly classifiable under BAS and not under ITSS in our view cannot be sustained. Therefore, we have to hold that appellant has not made out a prima facie case in this case on merits.
Extended period of limitation - A show-cause notice has been issued beyond the normal period and in this case admittedly the appellant could have utilized the CENVAT credit of service tax paid as a receiver in respect of their liability to be discharged for their Indian activities or even in respect of some software which is being serviced by them. Therefore it may not be proper to take a view at this stage that extended period is applicable in view of the revenue neutral situation. Therefore, we take a view that appellants have not made out a case for complete waiver in respect of normal period.
Cenvat Credit - Held that:- Credit availed by the appellant in respect of services provided by them to the units in SEZ. The learned counsel submits that retrospective amendment providing for availment of CENVAT credit on service provided to SEZ for the period in question before us was not available at the time when the Commissioner considered the issue and now according to the retrospective amendment, the appellant is eligible for the CENVAT credit and therefore the order for reversal of credit taken cannot be sustained. We find ourselves in agreement with the submission made and therefore the reversal of credit ordered cannot be sustained
The view taken by the Tribunal that at least for the normal period the demand under the first category is sustainable, would indicate that the matter cannot be remanded without putting the appellant to terms. - stay granted partly - Matter remanded back.
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2014 (11) TMI 168
Scope of Business Auxiliary Service - data processing activities - whether promotion or marketing of a service provided by the client; or any customer care service provided on behalf of the client, employing information technology service (including computer data processing) would fall outside the scope of BAS - Held that:- services provided by assessees to the overseas entities (Amadeus/Galileo) clearly amount to promotion or marketing of CRS services of the overseas entities (a BAS), but nevertheless falls outside the ambit of BAS as defined, since these services were provided by employing computer data processing, excluded component.
Assessees promote/market CRS services provided by the overseas entities (Amadeus/Galileo) but do so through computer data processing, amounting to Information Technology Service, an excluded component of BAS, defined in Section 65(19) of the Act. - assessees promote/market CRS services provided by the overseas entities (Amadeus/Galileo) but do so through computer data processing, amounting to Information Technology Service, an excluded component of BAS, defined in Section 65(19) of the Act.
Export of Services - whether services provided by assessees amount to export of services, within the ambit of the 2005 Rules - Held that:- where the service recipient is located outside India, this taxable service is delivered and used outside India; and payment for such service provided outside India is received by the Indian service provider in convertible foreign exchange, the service falls within the ambit of the 2005 Rules; and is admissible to benefits thereunder. The decision of the Larger Bench in Paul Merchants Ltd. (2012 (12) TMI 424 - CESTAT, DELHI (LB)), particularly in the context of the facts on the basis of which the said decision was pronounced, explain the scope of relevant provisions of the 2005 Rules. From the decisions referred to supra it is clear that activities of assessees fall within the scope of the 2005 Rules. Consequently, there is no liability to Service tax. From 01.07,2003 till introduction of the 2005 Rules also, BAS which was exported and for consideration received in convertible foreign exchange is exempted from liability to service tax by Notification No 6/1999-ST, Notification No. 21/2003-ST and in view of the clarification issued in Board Circular No. 56/5/2003-ST dated 25.04.2003.
Extended period of limitation - Held that:- For dropping levy of service tax demand on services provided during the period covered by the extended period of limitation and for deleting penalty under Section 78, the adjudicating Authority recorded elaborate and cogent reasons duly analyzing the material on record and concluded that relevant information and particulars were furnished and was available with the Department much in advance and therefore suppression of material facts or intent to evade tax by the assessees, cannot be inferred. We concur with these conclusions recorded by the adjudicating Authority. - Decided in favour of assessee.
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2014 (11) TMI 167
Applicability of Notification No. 12/2003 - determination of value of goods - completion and finishing services in relation to building or civil structure - Held that:- Appellants on being found out having illegally availed of Notification No. 15/2004-ST and Notification 1/2006-ST have attempted to get covered under Notification No. 12/2003-ST. But it is seen from the adjudication order as well as from their submissions in this appeal that they have only given the overall values of goods and materials purchased by them financial year wise and have failed to show with documentary evidence the goods and materials specifically sold to various service recipients in the context of provision of the service for which invoices were raised and payments received. That exemption notifications (except the promotional/beneficial notifications) are to be interpreted strictly has been repeatedly held in various judgments like in the case of Konkan Synthetic Fibres Vs. CC (Import) Mumbai [2012 (3) TMI 273 - SUPREME COURT OF INDIA].
The benefit of exemption Notification No. 12/2003-ST cannot be granted merely on the basis of overall estimation/approximations put forth and without any documentary proof specifically indicating the value of goods and materials sold in respect of the individual recipients of service as per the contracts entered into by the appellants with each of them. They have failed to produce such documentary proof so far. The appellants insist that they have such documentary proof and would be able to produce the same. In such a situation, it is only fair that the case is remanded to the adjudicating authority to enable the appellants to do so. - Matter remanded back - Decided partly in favour of assessee.
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2014 (11) TMI 166
Business Auxiliary Service - co-branding of hose pipes (by manufacturers and HPCL) as well as printing logo - whether HPCL have provided Business Auxiliary Service (BAS) to the manufacturer of hoses, LPG stoves, pressure cookers, kitchen lighters. - Held that:- The appellants have put a weak defence by saying that they are merely endorsing the safety requirements under various regulations cited above. Undoubtedly, the safety regulations which are statutory requirements have to be complied with and the oil companies indeed would have to recommend adherence to such safety regulations. But this does not detract from the fact that the promotion and marketing of goods is being definitely undertaken.
The agreements are for co-branding of the goods, sale through HPCL distributor network. The agreement with SUPER LPG states Super LPG approached HPCL for marketing their goods. The agreements clearly provide for specific overriding commission on per piece basis on or on ad valorem basis and such commission is payable over and above the commission payable to HPCL distributors. The commission is for the service rendered by HPCL towards marketing/promotion of goods manufactured by the manufacturers mentioned above. The service tax amount has been correctly demanded and the appropriation of the said amount already deposited is correct in law. - Decided against the assessee.
Levy of penalty - Waiver of penalty u/s 80 - Held that:- It is clear that they were aware of requirement of payment of service tax under the agreements. But they chose not to pay the tax. For the sake of repetition, it may be mentioned that the appellants are very old assessees. They are a massive organisation with all expertise. Therefore, non-disclosure of agreements amounting to clear suppression of facts does not give them the benefit of doubt and makes them liable for penalty under Section 78. In similar circumstances, penalty would have been imposed on private companies, there appears to be no reason why the appellant should escape penalty on similar ground. - Decided against assessee.
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2014 (11) TMI 165
Tour Operator service - supply the contract carriage business (not tourist vehicles) - whether the activity undertaken by the appellant is covered under the category of ‘tour operators service' prior to 10/09/2004 or post to 10/09/2004 - Invocation of extended period of limitation - Held that:- If a tour operator having its tourist permit under Section 88 (9) of the Motor Vehicles Act, then the vehicle shall be treated as a tourist vehicle. Admittedly, in this case the appellant are neither having the tourist permit nor operating in the tourist vehicle. Therefore, the appellant are not held to be liable to pay service tax under the category of tourist operator prior to 10/09/2004.
Appellants provide/supply the contract carriage business (not tourist vehicles) to their customers on their demand only - M/s. Capri has claimed the benefit of Notification 20/09 dated 07.07.2009 read with Section 75 of the Finance Act, 2011 which exempts the service provided to any person, by a tour operator having ‘contract carriage permits' for inter-state or intra-state transportation of passengers, excluding tourism, conducted tours, charter or hire service, from whole of the service tax leviable thereon under Section 66 of the said the Finance Act., which has been made applicable retrospectively w.e.f. 01.04.2000. As the said Notification and the Finance Act, 2011 were not contested by M/s. Capri before the Adjudicating Authority, therefore matter needs examination at the end of the Adjudicating Authority in the light of the decisions of this Tribunal placed before us by the ld. counsel for M/s. Capri and to decide whether M/s. Capri is liable to pay service tax under the category of ‘Tour operator' or not. Therefore, the matter needs examination at the end of the Adjudicating Authority - Matter remanded back
M/s. Capri has relied on several decisions of this Tribunal or by the lower authorities, and the decisions are contrary to each other. In view of this, we hold that the extended period of limitation is not applicable in this case. Therefore, the demands confirmed by invoking the extended period of limitation are set aside. Consequently, penalties are also set aside. - Decided in favour of assessee.
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2014 (11) TMI 163
Waiver of Pre deposit - Digital Signature Certificate (DSC) and Secure Socket Layer Certification (SSLC) services - appellant contended that activities of DSC and SSLC would not pertain to IT software and therefore they do not come within the service tax net under IT services - Held that:- The essential ingredients of the definition of information technology software are that these are recorded in the machine readable form. Machines normally used for manipulating or providing interactivity to users by means of computer or automatic data processing machine or in other devices of equipment. Software should be written in readable form. The software is meant to operate the machine and it is coded in machine readable language. The data has to be processed by machine using the software. Prima facie, we find that the applicants upload the information in the software to create the required DSC. It is submitted by the applicant in their statements that they were providing IT services to their customers. It appears that recording of data in machine readable form is involved in DSC and SSLC and would cover under IT services. The levy of service tax is not dependent on the fact thereof who retained the source code. But, there is some force in the submission of the learned Advocate in respect of demand of tax on SSLC under BSS and DCS Services. The applicant failed to make out a strong prima facie case for waiver of pre-deposit of entire amount of dues - Partial stay granted.
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2014 (11) TMI 128
Classification of service - Contract to supply drilling rigs to ONGC - Drilling rigs hired by assessee - Supply of Tangible Goods for Use service - Imposition of interest and equivalent penalty - Held that:- From the terms of the agreement entered into between the appellant and M/s. ONGC, it is clear that the service provided by the appellant is essentially supply of drilling rig along with its personnel to operate the same on charter hire basis and the payment for the services rendered is made on per-day basis. Thus, from the terms of the contract, it is clear that the activity comes within the scope of ‘supply of tangible goods for use’. In the present case, the appellant has supplied drilling rigs along with the crew. Thus it is the appellant who has possession and effective control over the drilling rig. The crew so supplied are the employees of the appellant and not of ONGC. Consideration is paid on per-day basis. All these elements in the contract clearly show that there is no transfer of right of possession and effective control by the appellant to M/s. ONGC. The activity of supply with no legal right of possession and effective control is sought to be taxed under the entry (zzzzj). It is an accepted principle of interpretation that the contemporaneous construction placed by administrative or executive officers charged with executing a statute has to be given due diligence.
In a case where the place of service recipient is not known or cannot be determined, then as per the said rule, the place of provision of service is that of the service provider. the service provider is situated in India and, therefore, the service has been provided in India and not elsewhere. Further, Rule 8 of the said Rules provides that, if any one of the service provider or receiver is located in the taxable territory, the place of provision of service will be the location of the service receiver. In the facts of the case before us, both the service provider as well as the service receiver are located in the taxable territory, namely, India. Therefore, the place of provision of service is India. Thus from whichever angle one looks at the issue, there cannot be any dispute on the fact that the service has been provided in India and not anywhere else. - Following decision of The Shipping Corporation of India [2013 (12) TMI 1124 - CESTAT MUMBAI] and Srinivasa Transports [2014 (6) TMI 205 - CESTAT BANGALORE] - classification of service under the taxable service category of “supply of tangible goods for use service” as defined in Section 65(105)(zzzzj) of the Finance Act, 1994 is upheld. Consequently, the demand of service tax under the said category along with interest thereon is upheld - However, penalty is set aside - Decided partly in favour of assessee.
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2014 (11) TMI 127
Waiver of pre deposit - renting versus lease premium - renting of immovable property - assessee relied upon the decision in the case of Noida Industrial Development Authority [2014 (9) TMI 306 - CESTAT NEW DELHI] - Held that:- the levy could be on the quantum of rent received by such authority month to month or year to year or whether it would also include a tax leviable, if any, on a lump sum amount received as premium. The final view of the Principal Bench of the Tribunal is the service tax is leviable on the quantum of lease and not on the lease premium. The premium is a one time lump sum payment whereas the lease comes into effect and as an interest created in the immovable property on payment of the rent. That is not rent according to the Tribunal's final order. In such circumstances, while reserving any opinion on the correctness of this view, what we find is that the point at this stage appears to be prima facie covered in favour of the Appellant Assessee - Stay granted.
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2014 (11) TMI 126
Waiver of pre deposit - Undue hardship - Held that:- appellant had pleaded financial difficulties and it had stated that the overall financial position of the company, which is reflected in the Profit and Loss Account, shows erosion of profitability, and, as such, the appellant is undergoing financial hardship - appellant is prepared to make a pre-deposit of ₹ 30 lakhs for entertaining the Appeal, as against the service tax demand made against it - stay granted partly.
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2014 (11) TMI 125
Manpower Recruitment of Supply Agency - providing employees to group companies - reimbursement of salary - employees were either directly employed by the assessee or were transferred from other Group Companies to the assessee in India - Held that:- Commissioner clearly missed the requirement that the service which is provided or to be provided, must be by a manpower recruitment or supply agency. Moreover, such a service has to be in relation to the supply of manpower. The assessee obtained from its group companies directly or by transfer of the employees, the services of expatriate employees. The assessee paid the salaries of the employees in India, deducted tax and contributed to statutory social security benefits such as provident fund. The assessee was also required to remit contributions, which had to be paid towards social security and other benefits that were payable to the account of the employees under the laws of the foreign jurisdiction. There was no basis whatsoever to hold that in such a transaction, a taxable service involving the recruitment or supply of manpower was provided by a manpower recruitment or supply agency. Unless the critical requirements of clause (k) of Section 65(105) are fulfilled, the element of taxability would not arise. No substantial question of law would arise - Decided against Revenue.
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2014 (11) TMI 124
Waiver of pre deposit - Works contract service - they had executed the contract as a sub-contractor - construction of pump houses, storage tanks and distribution of water supply network - Held that:- On going through the contract and the nature of work carried out by the appellant and having regard to the fact that appellants got to do only a portion of the contract entrusted to M/s. Ramkey Infrastructure Ltd., which is in reality a turnkey project, it cannot be said that the appellants have also executed an EPC project when they have undertaken this work. Prima facie, we feel that the appellant have a case on merits. Accordingly, in our opinion, the amount already deposited by the appellant is sufficient for hearing the appeal and accordingly there shall be waiver of pre-deposit and stay against recovery of balance dues during the pendency of appeal - Stay granted.
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2014 (11) TMI 123
Remission of tax - GTA service - Reverse charge mechanism - Held that:- vide Board Circular dated 21-8-2008 it is clarified, in partial modification of instructions set out in an earlier Board Circular dated 27-7-2005, that the benefit of abatement under Notification No. 32/2004-S.T. may also be extended in past cases, if tax payers produce a general declaration from the GTA that the benefits under Notification No. 12/2003-S.T. were not availed. Such general declarations were furnished by the assessee. order of the Commissioner, dated 15-1-2009 cannot be sustained and is quashed - Decided in favour of assessee.
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2014 (11) TMI 122
Waiver of pre deposit - Valuation of goods - Inclusion of TDS deducted - Held that:- once the tax paid by the service recipient as TDS to the income tax department is claimed as a deduction, it forms part of the income by the assessee. Once the assessee or appellant shows the amount deducted as TDS and deducts it from the amount of tax payable, such tax deduction claimed would automatically become part of the total income earned. What is an income earned from the activities for the purpose of income tax, cannot be considered as not amounting to an income for the purpose of service tax. In this case, the assessee income tax department as well as NHAI agree that the amount paid by NHAI is part of the income tax payable by the assessee and once it is part of the income tax payable, it cannot be said that it is not part of the income and once it is part of the income, it cannot be said that it has not arisen as a result of service rendered to NHAI unless it is shown to the contrary. No such situation exists here - Prima facie case against assessee - Partial Stay granted.
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2014 (11) TMI 121
Import of service - inter branch transactions with foreign branch - Demand raised on the ground that appellant had received services from abroad from their own branches and others through their branches - Held that:- There is no evidence to show that the services have been received by the appellants. The Commissioner has observed that since the amount has been paid, it has to be presumed that the services have been received. This observation cannot be sustained especially in view of the specific ledger entries which show transfer of funds for payments of salary, bonus, electricity charges, etc. Under these circumstances, in the absence of any specific evidence for receipt of taxable services, it cannot be said that the Revenue has made out a case of offence against the appellant on a prima facie basis.
As regards the service tax credit on construction service, the inclusive definition of ‘input services’ clearly covers service tax paid on construction of factory during the relevant period. That being the position, the credit is prima facie admissible. In view of the above, the appellant has made out a prima facie case for complete waiver. 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 87
GTA services - reverse charge - commercial concern or proprietor - Held that:- Section 65(50b) of Finance Act, did not cover a case of proprietary commercial concern to be treated as ‘Goods Transport Agency’ and set aside the order of CESTAT that the expression ‘commercial concern’ would include a proprietary concern also. - Decided in favor of assessee.
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2014 (11) TMI 86
Renting of immovable property - pure agent - joint venture - according to the Memorandum of Understanding entered into between 14 co-owners and the appellant, the appellant was allowed to enter into lease agreement/rental agreement and pay the co-owners in accordance with percentage fixed in the agreement, the amount received by them after retaining a percentage as their commission - Held that:- Appellant only acted as a pure agent - it cannot be said that appellants have rented out the immovable property but it is the co-owners who have rented out the property. In view of the decision of the Tribunal in the case of Manju Champaklal Bafna: [2013 (12) TMI 907 - CESTAT AHMEDABAD] wherein in a similar situation, unconditional waiver of pre-deposit was granted where there were co-owners of the property, we consider that, in this case also, a similar treatment is required to be extended. 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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