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Service Tax - Case Laws
Showing 441 to 460 of 2349 Records
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2014 (10) TMI 883
Leviability of Service tax - Rendering Club’s or Association’s Membership Service during the period 2007-08 to 2011-12 - Revenue considered ‘donations’, ‘subscriptions’, ‘entrance fee’ and ‘election deposit forfeited’ as the total taxable income for all the five years and demanded Service Tax on this income - Held that:- ‘subscription’, ‘entrance fee’ and lorry stand collection totalling to ₹ 2,99,085/- for the year 2010-11 and ₹ 3,31,750/- for the year 2011-12 is liable for Service Tax after allowing the threshold exemption value for the year 2010-11 determined along with value of taxable service for other services held taxable elsewhere in this order.
Leviability of Service tax - Rendering Supply of Tangible Goods Service during the period 2007-08 to 2011-12 - Revenue demanded Service Tax on the basis of the description ‘Hire charges’ reflected in the financial statements of the Sangam and construed the activity of transporting petroleum products from oil companies namely HPCL as Supply of Tangible Goods Service - Held that:- the applicants rebuttal of the Revenue’s claim, substantiated with brimming facts and reasoning, is acceptable and that the nature of activity involved in transportation of petroleum products from the oil companies to the respective destinations by the applicant in their tanker trucks gets covered within the scope of GTA service also gets support from the fact that the same has been accepted by the respective jurisdictional authority and assessed to Service Tax on HPCL and they complied with payment of the Service Tax under Reverse Charge Mechanism and filed periodic ST-3 returns. Moreover, if the Service Tax on the Supply of Tangible Goods Service is paid the same would be available as CENVAT credit for payment of Service Tax on GTA service, thereby making the exercise revenue neutral. Therefore, the entire Service Tax of ₹ 3,50,451/- demanded on this activity in the impugned show cause notice is infructuous and not sustainable in law.
Leviability of Service tax - Rendering Business Auxiliary Service during the period 2007-08 to 2011-12 - Applicant repudiated the demand in respect of turnover discount rebate and incentives received from the principals and spare parts suppliers, performance bonus/and reimbursement of expenses received towards maintenance of petrol bunk and uniforms of the employees etc., mentioning that the same are related to trading activity carried on by the applicant and did not come under the scope of service - Held that:- the Service tax demanded in respect of the activities namely performance bonus, uniform subsidy are not liable for Service Tax as the same is accrued to the applicant on their trading activities. These activities and receipts of income are relatable to the trading activities. Therefore the entire demand of ₹ 1,18,688/- made under the heading Business Auxiliary Service is not sustainable in law.
Leviability of Service tax - Rendering Renting of Immovable Property Service during the period 2007-08 to 2011-12 - Applicant submitted that they rented out vacant land to M/s. HPCL and Service Tax is not required to be paid, on the rental of vacant land in terms of Ministry’s Circular No. DOF/334/1/2007-TRU, dated 28-2-2007 and reckoned the Service Tax liability on the renting of vacant land only from 1-7-2010 to 31-3-2012 - Held that:- the total value of service on account of rental of immovable property works out to ₹ 14,25,776/- for the year 2010-11 and ₹ 20,07,593/- for the year 2011-12 is liable for Service Tax after allowing the threshold exemption value for the year 2010-11 determined along with value of taxable service for other services held taxable elsewhere in this order.
Threshold exemption and Service tax liability and interest - Appellant contended that they were liable for Service Tax only from the year 2009-10, that too after availing the threshold exemption limit of ₹ 8/10 lakhs for the respective financial year but revenue contended that the applicant has exceeded the threshold limit during the preceding financial year itself by clubbing the Service tax liability arrived at, on the various services provided by the applicant - Held that:- the applicant is eligible for total exemption for Service Tax for the years 2007-08 to 2009-10 and are liable to pay Service Tax on the service value of ₹ 7,24,861/- in excess of the threshold exemption limit of ₹ 10 lakhs for the year 2010-11 and no exemption for the year 2011-12, in terms of Notification No. 06/2/2005-S.T., dated 1-3-2005 and Notification No. 33/2012-S.T., dated 20-6-2012. Also the cum-tax benefit sought for by the applicant in terms of Section 67(2) is not admissible. Accordingly, the claim of the applicant for cum-tax benefit is disallowed and is arrived at the Service Tax liability at ₹ 3,15,613/- and applicable interest thereon. Also the applicant had admitted a total liability of ₹ 3,80,796/-and interest of ₹ 40,675/- payable thereon in their application filed in terms of Section 32E of the Act, ibid and during the hearings.
Imposition of penalty - Non-payment of Service tax - Held that:- in view of the true and full disclosure of tax liability and co-operation extended by the applicant the Bench takes a lenient view and extend partial immunity from penalty to the applicant.
Prosecution - Section 32K of Central Excise Act, 1944 - the applicant is granted immunity from prosecution under Section 32K of Central Excise Act, 1944, as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. - Matter disposed of
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2014 (10) TMI 878
Demand of Service Tax - Already paid under GTA services - Appellant as a transport agency discharged its tax liability on the amount of consideration, it received from its customers but Revenue created tax liability on the ground that by promoting the business of individual truck owners as the appellant does not have its own trucks and taken it on rent under an agreement , they have earned the said amount as commission and they are again liable to pay service tax on the said amount Held that: the appellant has already discharged its service tax liability on the total collected amount from its customers, creating a duty liability in respect of a part amount from the same would amount to double taxation followed by the Tribunal's case in Jai Shree Road Lines v. CCE, Jaipur-II 2014 (1) TMI 717 - CESTAT NEW DELHI. - Decided in favour of appellant
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2014 (10) TMI 872
Renting of immovable property - leasing/renting of immovable property for a hotel - Held that:- the issue is no more res integra and the Tribunal in the case of Jai Mahal Hotels Private Limited Vs. CCE [2014 (7) TMI 540 - CESTAT NEW DELHI] has held that leasing/renting of immovable property for a hotel is expressly excluded from the ambit of the taxable service under Section 65(105)(zzzz). - appellants were under no tax liability for payment of service tax on the said activity.
Renting of another premises - assessee treated the entire consideration, as cum-tax - Held that:- Original Adjudicating Authority directed to examine and verify the above ledger and their claim that the tax amount has not been given to them by their customers and to re-decide the issue accordingly - matter remanded back.
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2014 (10) TMI 859
Levy of penalty - appellant had entertained a bonafide belief that they need not discharge service tax on the cars rented to UNICEF and other rent-a-cab operators. - Tribunal in [2013 (12) TMI 1516 - CESTAT BANGALORE] refused to waive the penalty u/s 80 - No reason to interfere with the impugned order of the learned Tribunal. - Decided against the appellant.
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2014 (10) TMI 849
Extension of stay order beyond 365 days - matters the appeal could not be disposed of on account of heavy pendency and the delay in non-disposal is not attributable to the appellants. - Held that:- The Larger Bench of the Tribunal in the case of M/s Haldiram India Pvt. Ltd. vs. CCE, Delhi [2014 (10) TMI 724 - CESTAT NEW DELHI (LB)] has held that when the delay in disposing of appeal is not attributable to the appellants, extension of stay can be granted. - Stay extended.
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2014 (10) TMI 834
The High Court of Andhra Pradesh dismissed the appeal, as the penalty was reduced from Rs. 62,04,375 to Rs. 25,000 by the Tribunal based on proportionality. The Tribunal confirmed the order of levying interest due to irregular availing of Cenvat credit, which was not utilized. The appeal was dismissed without costs.
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2014 (10) TMI 817
Rent a cab scheme - principle of estoppel in law against a party - appellant has admitted the liability whereas high court has decided that the activity is not taxable in Commissioner, Customs & Central Excise Versus Sachin Malhotra, Raj Kumar Taneja, M/s. Shiva Travels [2014 (10) TMI 816 - UTTARAKHAND HIGH COURT] Case was de-linked on the basis of the fact that the respondent / assessee had effected payments and also filed affidavits to the effect that he will be paying the balance of the amount - Held that:- Article 265 of the Constitution of Indian mandates that no tax can be levied or collected except as provided by law - fact that the respondent / assessee had made some payments and also made promise to make further payments cannot be used against our refusing to interfere with the impugned order. For the reasons, we have already recorded more elaborately in our common judgment passed and connected case, we have, inter alia, found that when there is only a contract of hire and there is no renting of the cab, there is no question of the assessee being assessed in respect of services rendered in connection with rent–a-cab as there is no renting at all. - Decided against the revenue.
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2014 (10) TMI 816
Rent a cab scheme - whether the person engaged in the business of renting cabs, irrespective of the number of vehicles held by him (even if he does not own and has instead rented even a single cab) is not covered under the definition of Rent-a-Cab operator scheme, and not liable to pay Service Tax - Held that:- Unless there is renting of cabs, there is no question of further enquiring as to the services, which may be rendered therein. In other words, any service, which may be rendered and which does not relate to renting of cabs, would be irrelevant for our consideration. When we consider the matter in the said light, we have no doubt in our minds that the Tribunal has, in this case, correctly propounded the principle that, unless the control of the vehicle is made over to the hirer and he is given possession for howsoever short a period, which the contract contemplates, to deal with the vehicle, no doubt subject to the other terms of the contract; there would be no renting.
Under the rent-a-cab scheme, the hirer is endowed with the freedom to take the vehicle, wherever he wishes, and he is only obliged to keep the holder of the licence informed of his movements from time to time. When a person chooses to hire a car, which is offered on the strength of a permit issued by the Motor Vehicles Department, then the owner of the vehicle, who may or may not be the driver, will offer his service while retaining the control and possession of the vehicle with himself. The customer is merely enabled to make use of the vehicle by travelling in the vehicle. In the case of a passenger, he is expected to pay the metered charges, which is usually collected on the basis of the number of kilometers travelled. These are all matters, which are regulated by the Government. Unlike the said scenario, in the case of a rent-a-cab scheme, as is clear from the very fundamental principle underlying the scheme, it is to give the hirer the freedom to use the vehicle as he pleases, which, undoubtedly, implies that he must have possession and control over the vehicle. This is the fundamental distinction between rent-a-cab and a pure case of hiring
Though both, rent and hire, may, in a different context, have the same connotation; in the context of rent-a-cab scheme and hiring, we are of the view that they signify two different transactions. What the lawgiver has chosen fit to tax by way of imposition of service tax is only transaction relating to business of renting of cabs. It is also pertinent to bear in mind that, in the case of hiring, the hirer may refuse to provide the service to the prospective customer. - when the lawgiver introduced this new source of taxation, it must be treated as having been aware of the distinct concept of renting a cab for which there is provision in the Central Legislation, namely, Section 75 of the Motor Vehicles Act and also a scheme stood framed as early as in 1989. We are, therefore, of the view that, unless there is control, which is passed to the hirer under the rent-a-cab scheme, there cannot be a taxable transaction under Section 65(105)(o), read with Section 65(91) of the Service Tax Act.
Decision of Punjab & Haryana High Court in Commissioner of Central Excise, Chandigarh Versus M/s Kuldeep Singh Gill [2010 (4) TMI 283 - PUNJAB & HARYANA HIGH COURT] distinguished - Decided against Revenue.
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2014 (10) TMI 815
Waiver of pre-deposit of service tax - Commercial and Industrial Construction - exemption Notification No.1/2006-ST, dated 01.03.2006 - Held that:- Prima facie, we find that the applicant availed the benefit of exemption Notification knowing fully well they are not eligible for Cenvat credit and, therefore, it is a clear mis-statement of facts. Hence, the applicant is directed to make a pre-deposit of ₹ 1,00,000 within a period of six weeks from today. Upon deposit of the same, pre-deposit of balance amount of tax, interest and penalty shall remain waived and recovery thereof stayed till the disposal of the appeal - partial stay granted.
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2014 (10) TMI 814
Waiver of pre deposit - valuation - Repair and maintenance service - inclusion of value of spares/parts required for repair and maintenance - Held that:- value of spares and materials used was mentioned in the main part as a summary and there was an annexure to invoice showing details of spares and materials used and sold for the purpose of providing service. Therefore, we found on going through the records and invoice produced that the appellant have followed the provisions of Notification No. 12/2003 and it is not only the fact that they had paid tax as per West Bengal State Govt. VAT Act and on ‘deemed sale’ portion, they have also clearly shown the details of spares/parts used and sold during the course of repair and maintenance. Therefore, appellants have made out prima facie case for complete waiver and stay against recovery. Accordingly, the requirement of pre-deposit is waived and stay against recovery is granted during pendency of the appeal - Stay granted.
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2014 (10) TMI 813
Classification of service - Scientific or technical consulting services or survey and map-making service - Held that:- Revenue wants to classify the service under ‘scientific and technical consultancy service’. As per the provisions of the Finance Act, ‘Scientific or technical consultancy’ means any advice, consultancy, or scientific or technical assistance, rendered in any manner, either directly or indirectly, by a scientist or a technocrat, or any science or technology institution or organization, to any person, in one or more disciplines of science or technology. - Respondents had not provided any advice or consultancy or scientific or technical assistance rather the respondents had undertaken a job of digitization of maps. In view of this, we find no infirmity in the impugned order - Decided against Revenue.
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2014 (10) TMI 812
Business auxiliary service - Appellant are dealer of motor vehicles - Appellant provide table space to bank to promote their business - Held that:- Revenue had not produced any evidence by way of agreement or any guidelines from the Bank or financial institutions for the basis of giving commission to the appellants. In absence of such evidence, it cannot be said that the appellants provided any business auxiliary service to the Bank or financial institution. In view of the above, the impugned order is set aside - Decided in favour of assessee.
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2014 (10) TMI 811
Non complaince of pre deposit order - Held that:- When the matter was called, none appeared from the appellant side. However, a letter dt.2.6.2014 has been received from the appellant wherein he has requested that due to bad financial condition, the appellant is not in a position to deposit any part of directed amount and requested that condition of pre-deposit may be waived and appeal may be heard on merits. I find no valid ground for waiver of pre-deposit has been made by the appellant nor advocate of the appellant is present in the case. Even no case of financial stress was made before the bench when stay application was first heard. In view of above, there is no ground for interference in the earlier order - Appeal dismissed for non compliance.
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2014 (10) TMI 773
Irregular availment of CENVAT credit - Banking and Other Financial Services - restriction on utilization of 20% of service tax - Held that:- As regards demand on the ground that the appellants had utilized more than 20% of the service tax payable from CENVAT Credit account, the appellants have produced a Chartered Accountant certificate which shows the details of payments, credit, etc. It is the submission of the learned CA that in the case of Idea Cellular Ltd. [2009 (2) TMI 91 - CESTAT NEW DELHI], the Tribunal had taken a view that the restriction of 20% limit has to be calculated excluding the services which are specified in Rule 6(5) of CENVAT Credit Rules, 2004. - However while calculating, the calculation was made in a different manner which resulted in the conclusion that appellants had utilized more than 20% of CENVAT credit. Two periods were examined by us and in both the cases, we found that the amount of credit utilized by the appellants come to exactly 20%, if the claim of the appellant for method of calculation is accepted.
Appellants did not make a clear claim that they had selected invoices randomly and on the basis of these certificates, all the credit taken in respect of common input services have to be treated as correct and the invoices have to be considered as ones relating to services classifiable under services listed in Rule 6(5) of CENVAT Credit Rules, 2004. In such a situation, the observation of the Commissioner that the appellants are eligible only to this extent cannot be faulted with. At the same time, we also have to take note of the fact that the audit observation was based on 1% of the samples and there is no clear finding that these are not common input services. Instead it appears that Department is attempting reclassification of the input services to arrive at this conclusion. - Matter remanded back - Decided in favour of assessee.
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2014 (10) TMI 772
Construction of complex service - renting of immovable property service - transport of goods by road service - Held that:- demand of ₹ 8,81,135/- has been confirmed on an amount of ₹ 23705930/- the details of which are available in the table given in para 10.5 of the same order - It is evident from the details given against these serial numbers 2e, 3c, 4c & 5b that this amount represents the payment received for construction of office building (load dispatch data center). Thus, it is clear that this amount does not pertain to construction of any residential complex or completion & finishing of residential complex or repair, alteration, renovation or restoration in relation to residential complex. Thus it hardly requires any further discussion to hold that the said component of impugned demand confirmed under the Construction of Complex Service is totally untenable.
Renting of immovable property service - it is seen that at the time of adjudication, the had not claimed the exemption on the basis of what is stated at the time of appeal before the Tribunal. Regarding the contention in their appeal that vide their letter dated 12.10.2012 they had brought this to the notice of the adjudicating authority, we have perused that letter and it nowhere clearly brings out that the rental income was from for renting out the property for hostel/residential purpose and was not for business or commerce. Therefore it is only fair that this portion of the demand is remanded for denovo adjudication so that the appellants can submit their claim along with the evidence before the adjudicating authority.
Regarding the impugned demand of ₹ 11,75,604/- under GTA service, the appellants have claimed that the same is not sustainable because the freight was less than ₹ 750/- for each trip. The appellants have submitted certain invoices in support of their claim. However the adjudicating authority in the impugned Order-in-Original has observed that the only defense which the appellants had taken at the time of adjudication was that this point was not raised in the audit report. The adjudicating authority rightly observed that merely because the point was not raised in the audit report, that cannot be a ground that a Show Cause Notice in that regard cannot be issued. - Decided in favour of assessee.
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2014 (10) TMI 771
Waiver of pre-deposit - valuation - Renting of Immovable Property service - demand is in respect of expenditure incurred on repairs and maintenance of machinery by adding to the assessable value for the purpose of Renting of Immovable Property - Held that:- applicant relies upon the terms and conditions of the lease agreement with the persons who had taken over the factory on rent where it has been specifically mentioned that the responsibility of repairs and maintenance of the machinery is on the person who is taking the factory on rent. Hence the demand is not sustainable - as per the lease agreement the lessee during the tenure of the contract is responsible for the repairs and maintenance of the factory. There is no evidence on record to show that the quantum of rent has been suppressed to the extent of the expenditure incurred on repairs and maintenance of machinery. In view of this prima facie the applicant has made out a case for waiver of dues. - Stay granted.
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2014 (10) TMI 770
Waiver of pre deposit - Construction of Residential Complex Service - Held that:- Applicants are engaged in the construction of a project under the name of ‘Golden Enclave’ of multistoried residential complex comprising of 36 flats and 30 individual villas having common area and common amenities. Prima facie, we are unable to accept the contention of the Ld. Counsel that it is individual villas or single houses or single apartment. We find from the impugned order that the ownership of the property continued to be with the applicant till the construction is completed. It is seen from the impugned order that the applicant had not provided documents viz., copy of the plan and other details to the department and prima facie we are unable to accept the demand is barred by limitation - Partial stay granted.
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2014 (10) TMI 769
Manpower recruitment and supply service and commercial training and coaching service - Held that:- Appellants get the payment made for the training element involved while sending the nurses abroad only, if the nurses join the hospital in America and passes the test that is conducted there successfully. In the event of nurses not proceeding abroad or in the event of their failing the test, the appellants do not get any payment for the same. In such an event the nurses are sent back. The demand has been made in respect of remuneration received from abroad for sending nurses after training on the ground that it amounts to manpower recruitment and supply service and the benefit of treatment of service as export of service has been denied. Prima facie in our opinion, the service amounts to export of service since remuneration was received in convertible foreign currency, service is utilized outside India and it can be definitely said that it was partly performed in India and partly performed abroad. Therefore, we find that the appellant’s claim that they are not be liable to pay has some validity.
However, as regards the demand of service tax on commercial training or coaching services, in respect of nurses who do not go or who come back without passing the test, the appellants may not have a case. - In any case this aspect needs more detailed consideration and consideration of agreement vis-a-vis the definition of service, nature of training and the nature of payment received, etc.- this issue is prima facie not in favor of assessee - stay granted partly.
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2014 (10) TMI 768
Imposition of penalties u/s 76 - discharge of the service tax liability with interest before issuance of show cause notice - held that:- Appellant was informed about the short payment of tax by the Jurisdictional Range Officer to which he complied by discharging the said Service Tax Liability by cheque dated 29-9-2009 and informed Range Officer. Secondly, the First Appellate Authority recorded in the impugned order that show cause notice was issued on 14-9-2009 which is factually incorrect and I find that the show cause notice has been issued on 14-9-2010. That is almost after a year the said short payment was made good with interest. In my view the provision of Section 73(3) of the Finance Act, 1994 are directly applicable to this case - Decided in favour of assessee.
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2014 (10) TMI 767
Business support service - Hostel facility service - Canteen service - Held that:- According to the appellant the main business of TCS is software development and running of hostel cannot be termed as a support service. Hostel facility has to be treated as perk of the TCS employee and if it is treated as business support service, TCS should be entitled to take CENVAT credit. After going through the definition of business support service, we find that the appellant does not have a solid case and issue is debatable.
As regards out-door catering, the liability arises only when such service is provided in the premises of the service receiver and in this case such service is provided only in the hostel and therefore liability may not arise. demand for the normal period may be sustainable - Partial stay granted.
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