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Service Tax - Case Laws
Showing 461 to 480 of 2349 Records
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2014 (10) TMI 766
Waiver of pre deposit - Classification of service - Interior decorator service or works contract service - Held that:- interior decorator has to be a professional and has to advertise himself to the public that he is an interior decorator. From the bills and work orders produced, we do not find any such claim made by the appellant suggests that they are only undertaking interior works. Our attention also was drawn to one of the work orders wherein the work done by the appellant was certified by an interior decorator which also would show that the appellant may not be considered as an interior decorator. If they were considered to be so and their service was taken on that basis, Dell International, a customer in that case, would not require a certificate from interior decorator about the work done by the appellant. classification itself is debatable and the appellant seem to have a prima facie case to show that they are not interior decorators, the requirement of pre-deposit is waived and stay against recovery granted during the pendency of the appeal - Stay granted.
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2014 (10) TMI 732
Abatement under Notification No. 32/2004 - GTA service - CENVAT Credit - Held that:- where the service provider has not taken registration, there is no need for the service receiver to show evidence that the service provider has not taken any credit and benefit of abatement under Notification No. 32/2004 would be available.
As regards the second ground which is resulted in demand for service tax, the learned CA submits that once the service tax has been paid by the supplier of GTA services, the question of demand by the appellant does not arise. The demand has been confirmed only on the ground that according to the notification the service receiver is liable to pay. In our opinion, for the same services, there cannot be calculation of tax otherwise. In the absence of any evidence that the service provider had not paid the tax, the demand for service tax on the sole ground that receiver is liable to pay cannot be sustained. - stay granted.
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2014 (10) TMI 731
Successor's liability - Imposition of penalty - Difference in the services provided by the appellant in the balance sheet as compared to their service tax returns - Held that:- during the impugned period the service tax could not have been taken from the successor of a person who is dead. In these circumstances, I set aside the impugned order qua confirming the demand of service tax along with interest - Decided in favour of assessee.
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2014 (10) TMI 730
Classification of service - Cleaning service or Business Auxiliary Service - Held that:- If it is cleaning service, normally the area to be cleaned and the nature of cleaning, the periodicity etc. would be specified. Moreover the amount payable for the services rendered would not be based on number of vehicles and from the work order and the certificate provided by a receiver of service, we find that the appellants were paid only on the basis of number of vehicles provided for shifting of slurry from settling tank to disposal yard and there is no evidence of any payment made by taking into account other services provided. No doubt in the invoices the appellant, who is an individual, has mentioned the service provided as cleaning service but the actual facts are otherwise.
Service provided by the appellant appears to be supply of tangible goods since the payment is made on number of vehicles provided and appellants have discharged their liability for the period subsequent to 16/05/2008 and have been paying service tax which would mean that the conditions for treating the service as supply of tangible goods has been accepted by the appellant himself for the period subsequently. The service has not been reclassified after 16/05/2008 also even though the matter was adjudicated and it was contended that service provided was not cleaning service. Under these circumstances, even if the appellant does not have a strong case on merits which in our opinion may not be a fact yet the appellant would be entitled to the benefit of limitation - there is no pre-deposit required to hear the appeal and 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 (10) TMI 729
CENVAT Credit - demand against the Input Service Distributor under Rule 14 - contravention of Rules 2(l), 2(m) and 7 of the Cenvat Credit Rules, 2004 - Held that:- Identical proceedings were earlier initiated by way of two show cause notices, dated 21-9-2010 covering the period 2005-2006 to 2009-2010. These proceedings were however dropped by the Commissioner by the order dated 27-8-2012 on the ground that the demand for recovery of Cenvat credit cannot be raised against the Input Service Distributor under Rule 14 of the Cenvat Credit Rules, 2004; and where Cenvat credit is wrongly availed and utilized, the same should be recovered from the manufacturer or provider of output services. The wholly contrary conclusion and reasoning is adopted in the impugned order vis-a-vis the earlier order referred to. In a prima facie construction of the provisions of Rule 14 of the Cenvat Credit Rules, 2004, we are of the view that the impugned order is unsustainable - Decided in favour of assessee.
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2014 (10) TMI 728
Denial of CENVAT Credit - absence of registration number of service provider - Held that:- There is no dispute about raising of the invoices by the service provider and giving all the particulars including the fact of payment of service tax. When the same is taken into consideration along with S.T. 3 return filed by the service provider, it leads to the inevitable conclusion that service provider has paid the service tax. In any case, I find that there is no dispute about the above fact and only reason for denial of credit is absence of registration number of service provider. I find that said defect is a rectifiable defect and the appellant having produced S.T. 3 return of the service provider which bears his registration, is sufficient to meet the objection of the Revenue. Accordingly, I find no reason to deny the credit to the appellant. Impugned order is set aside - Decided in favour of assessee.
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2014 (10) TMI 717
Suo moto credit - earlier when objected by the department, assessee reversed the credit with interest - after winning the appeal he took the re-credit of amount reversed earlier with interest - Held that:- When service tax was not liable to be paid, assessee should not have been made to pay. Having made them to pay, credit should have been allowed gracefully. Having denied the credit, when they won the appeal, they should have been advised to reverse the suo moto credit taken and file a refund claim which they would have done since when department wrote a letter asking them whether they have taken suo moto credit, time was still available for filing refund claim.
When advice was given to the assessee it was a wrong advice which resulted in proceedings initiated by the department itself. When advice was required to be given, no advice was given instead proceedings were initiated. To add insult to injury, Penalty that too mandatory penalty was imposed. We find approach of the department is not at all correct. Strictly speaking, legally, the credit of interest on CENVAT credit availed is also wrong because only credit could have been taken which was reversed at the insistence of the department and not the interest paid. Nevertheless in this case since the entire proceedings was unnecessary and whole litigation process was unnecessary and the amount recovered itself was not at all recoverable, we consider that at some stage the matter should be closed - there is absolutely no revenue loss caused to the Revenue so far - Decided in favour of assessee.
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2014 (10) TMI 690
Consulting Engineer Services - Held that:- Appellants are not disputing the activity. The appellants undertake the activity of survey, preparation of plan and estimate of canal and distribution under a composite work order - survey and map making service has come into the service tax net from 16.6.2005. Hence the demands relates one of the activities of map making service under the composite work order which is for survey, design, preparation of plan etc therefore we find no infirmity in the impugned order - Decided against assessee.
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2014 (10) TMI 688
Levy and demand of service tax from the Director of Company - appellant signed the agreement as a Director on behalf of the Company - Held that:- Demand of Service tax is confirmed against her when in para 13 of OIO dtd 31/3/2013 contains the stand of the appellant that she is only an operator and company is responsible for payment of service tax. This issue raised by the appellant has neither been deliberated upon by the adjudicating authority nor the first appellate authority under OIA dtd 13/3/2014. It is observed from the contract dated 1/4/2012 entered between BPCL and M/s Bombay Garage (Rajkot) Pvt Ltd that Ms Bhavna Jayantibhai Desai is signing on behalf of the M/s Bombay Garage (Rajkot) Pvt Ltd as a Director which is confirmed in her statement dated 12/9/2012 stating that she is receiving a salary of ₹ 25000/- per month for rendering services and is not required to pay any service tax. As the issue involved in the present proceedings lies in a narrow compass, therefore, after allowing the stay application, appeal is taken-up for disposal - appellant signing the contract as the Director of the Bombay Garage (Rajkot) Pvt. Ltd. cannot be held as the service provider. Therefore, no demand can be confirmed against the present appellant when the original show cause notice dated 20/9/2013 was issued to M/s Bombay Garage (Rajkot) Pvt. Ltd, Rajkot and by no stretch of imagination it can be considered that the Director of a Pvt. Ltd company is the service provider in the present case - Decided in favor of assessee.
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2014 (10) TMI 687
Rectifications of mistake - Typographical mistake - Held that:- as appellant had not provided any service regarding which the appellants are liable to pay service tax on reverse charge mechanism in respect of any service provided or to be provided by or to such installations, structures and vessels or for supply of any goods connected with such activity to installations, structures and vessels within the continental shelf and the exclusive economic zone of India, the appellants are entitled for refund - Rectification done.
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2014 (10) TMI 686
Waiver of pre deposit of Service Tax - construction services - sub contractor or not - Held that:- who supplied manpower to service receivers who in turn rendered construction services to the thermal project. It is the claim of the applicant that as a sub-contractor to the service receiver, the amount of service tax paid by the service receiver on the total taxable value of construction service, be considered as discharge of their service tax liability. The Revenue on the other hand disputes that the services receiver has received the services under the category of manpower supply and rendered services under the category of construction services. Therefore, the service tax paid by the service receiver under the head 'construction services' cannot absolve the present applicant from the liability of service tax on manpower supply service. Prima facie, we agree with the Revenue for the simple reason that to avoid double taxation, mechanism of CENVAT Credit has been introduced in the system. In the event, the service tax paid on manpower supply is used in providing construction service then the service receiver is allowed to take credit and discharge his tax liability. In the result, the applicant could not make out a prima facie case for total waiver of pre deposit of dues adjudged - partial stay granted.
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2014 (10) TMI 685
Waiver of the pre-deposit - clubs or association services - Held that:- It transpires from the records that the appellant has effluent treatment plant which is commercially exploited by entering into a contract with the industries nearby for treating the effluent generated. It is also seen from the records that the appellant is raising invoices for such payment of effluent. It is the case of the Revenue that the appellant is club or association person of various persons. The arguments put forth by the ld. Departmental Representative to submit that clubs of association means person or business entity providing services and facilities for the subscription or any other amount as fees may not carry the case of Revenue any further. There is nothing on record to show that the industries in and around the effluent treatment plant were the members of the appellant. In absence of any such evidence, prima facie, we find that though the appellant has rendered some kind of services, it may not fall under the category of club or association services. We are of the view that the appellant has made out a strong prima facie case for waiver of the pre-deposit of the amounts involved. - Stay granted.
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2014 (10) TMI 684
Maintainability of appeal - Bar of limitation - Delay in receipt of order - Held that:- Adjudication order was dispatched through post on 30-3-2010 and the observation of the Commissioner (Appeals) in the impugned order is that the same has been received by the appellant on 30-3-2010. The said observation of the Commissioner (Appeals) is not sustainable as the order which had been dispatched on 30-3-2010 could not be delivered by the Postal authorities on the same day. In the absence of any evidence on record of the service of the order on the same day, the observation of the Commissioner (Appeals) is not sustainable in the eyes of law whereas the appellant has produced the inward register showing the receipt of the said order on 3-4-2010. In the absence of any contrary evidence, the evidence produced by the appellant is acceptable. Therefore, I hold that the adjudication order was served on the appellant on 3-4-2010 and against the said order, the appeal was filed by the appellant on 3-6-2010, i.e. within 90 days of the communication of the adjudication order - Matter remanded back - Decided in favour of assessee.
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2014 (10) TMI 683
Waiver of pre deposit - Real Estate Agent service - Held that:- Assessee had entered into agreement with four persons for purchase of the land. However subsequently he did not purchase the land but with the four persons with whom he had entered into agreement, the land was sold to M/s. Melmont Construction (P) Ltd. In the sale deed Assessee was also shown as one of the vendors. From the grounds discussed above, it becomes quite clear that Assessee was also a seller along with other four. How he became a part of the selling group is a mystery which we can solve and may be find out at the time of final hearing only. At this stage since as per the records and as per the statement given by him without any contrary evidence, he was also a part of the sale deed, it may not be appropriate to consider him as Real Estate Agent - Stay granted.
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2014 (10) TMI 682
Denial of CENVAT Credit - Penalty u/s 11AC - Same registered office of exporter and recipient of service - Whether the manufacturing unit at Mahad of the appellant which is a manufacturer and exporter of the goods can avail CENVAT credit of Service Tax paid on CHA services in respect of the goods exported, when the exporter has a registered office at Pune - Held that:- goods were manufactured at Mahad unit and transported from there to the port of export and the CHA service was availed for the goods manufactured at the Mahad. Therefore, we do not find any infirmity or any provisions in law which prohibits the Mahad unit from availing credit of the Service Tax paid on the CHA service for export of the goods. Accordingly, we hold that the impugned order is not sustainable in law - Decided in favour of assessee.
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2014 (10) TMI 648
Waiver of pre deposit - Modification of order - Held that:- Order relies upon the decision of the Hon’ble High court of Andhra Pradesh in the case of Sai Samhita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT]. Learned counsel fairly agrees that even though this decision has been mentioned in Appeal Memorandum and during the arguments it was not brought to the notice of the Tribunal nor it was pressed. It cannot be said that there is any apparent error in the order passed by the Tribunal. When there is no apparent error, if the order is modified, it would amount to review of the order of the Tribunal by the Tribunal itself for which the Tribunal has no power. Accordingly, no case has been made out for modification of the stay order passed by the Tribunal and accordingly, the application is rejected.
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2014 (10) TMI 647
Mandap Keeper Service - Renting of immovable property - Extended period of limitation - Held that:- Appellant is doing restaurant business, it cannot be said that they had valid ground not to pay tax. Prima facie, we find that extended period also is invokable. - entire amount ordered to be deposited - stay denied.
As regards renting of immovable property, extended period could not have been invoked since the levy has been regularized by retrospective amendment. Therefore, prima facie, the appellant has made out a case for waiver of pre-deposit of service tax demanded on ‘renting of immovable property service’ - Stay granted.
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2014 (10) TMI 646
Valuation of the taxable service - inclusion of value of free supply - construction of commercial or industrial complex - section 67 - whether the value of free issue material supplied by the service recipient has to be included while computing the gross amount charged for the purpose of exemption Notification No. 15/04-ST and 1/06-ST - Held that:- Just because the materials were sold by the service provider to the buyer and he in turn provided it as free supply for construction work, the nature of transaction between the service receiver and the service provider that of supply of goods free of cost in our opinion does not change. As regards other decisions relied upon by the learned A.R., we find that all of them were decisions which were rendered before the case of Bhayana Builders (Pvt) Ltd [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)] and therefore the Larger Bench decision would prevail. We also take note of the fact that appellants have deposited an amount of ₹ 96,57,536/- in our opinion, this amount is sufficient towards pre-deposit for hearing the appeal. - stay granted.
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2014 (10) TMI 645
Waiver of pre deposit - Cargo handling service - Held that:- Applicant in their Profit & Loss Account mentioned the service as ‘Cargo Transport Hire Charges’ - classification dispute of the service would be examined at the time of appeal hearing at length. Prima facie, we find it would be treated as Cargo Handling Service as evident from the various documents - After considering the overall facts and circumstances of the case and the financial hardship pleaded, we direct the applicant to predeposit ₹ 1,50,00,000 within a period of eight weeks - Partial stay granted.
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2014 (10) TMI 644
Waiver of pre deposit - Reversal of CENVAT Credit - CVD taken on import of goods - Held that:- Prior to 1-4-2011, in the absence of any specific procedure or specific provisions of law, the appellants cannot be found fault with for entertaining the belief that they are eligible for the credit. However the appellant has reversed the Cenvat credit attributable to the normal period amounting to ₹ 6,43,007 - table shows the total value of manufactured goods, total value of exempted goods and total value of traded goods and proportion worked out, in our opinion, on a prima facie basis, is correct. The entire tax has been paid for the normal period. Whether the extended period is invocable or not is required to be considered in greater detail in the light of facts and circumstances, case laws, etc. In view of the above, we are of the view that at this stage, the amount deposited by the appellant is sufficient for the purpose of hearing the appeal - requirement of pre-deposit of balance dues is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.
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