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Service Tax - Case Laws
Showing 481 to 500 of 2349 Records
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2014 (10) TMI 643
Waiver of penalty u/s 80 - Penalty u/s 76 & 77 - electrical illumination services - Held that:- It is a fact that the appellant has provided temporary electrical illumination service to Govt. of Gujarat for celebrations of Independence Day, Republic Day and other State Govt. functions for which he could have entertained a bona fide belief that Service Tax liability may not arise on the services rendered by him. In my view, such belief is a justifiable reason to set aside the penalties under Sections 76 and 77 by invoking provision of Section 80 of Finance Act, 1994. In my view, the appellant has made out the case for invoking provisions of Section 80 of Finance Act, 1994, doing so I set aside the penalties imposed under Sections 76 and 77 of Finance Act, 1994 - Decided in favour of assessee.
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2014 (10) TMI 642
Denial of refund claim - Bar of limitation - Held that:- It is admitted fact that the appellant was not required to pay any service tax for acquisition of residential unit as held by the Hon’ble High Court in K.V.R. Constructions (2009 (8) TMI 150 - KARNATAKA HIGH COURT). As it is not an amount of service tax, therefore, provisions of Section 11B of the Central Excise Act are not applicable to the facts of this case. Therefore, the time limit prescribed under 11B is not applicable. Hence impugned order deserves no merit and same is set aside - Decided in favour of assessee.
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2014 (10) TMI 641
Waiver of pre deposit - Construction of ‘Residential Complexes’ - Works Contract Composition Scheme - Held that:- Prima facie, applicant is eligible for the benefit of Works Contract Composition Scheme. Considering the fact that the tax liability has been discharged by the appellant as per the scheme, we waive pre-deposit of balance dues arising out of the impugned order. Further there shall be stay on collection of such dues till the disposal of the appeal - Stay granted.
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2014 (10) TMI 607
Waiver of pre deposit - Manpower recruitment and supply agency’s service - penalties under Section 77 & 78 - Held that:- Issue involved requires consideration of the contract, decisions relating to reimbursement of expenses of various High Courts and Tribunals, definition of ‘manpower supply service’ as applicable to the facts of this case, facts as to whether extended period could have been invoked, etc. which can be done at the time of final hearing. At this stage, we consider that the amount already deposited by the appellant is sufficient for the purpose of hearing the appeal. Accordingly, there shall be waiver of pre-deposit and stay against recovery of the balance dues for 180 days from the date of this order - stay granted.
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2014 (10) TMI 606
Reversal of differential duty of 50% of CENVAT credit - Benefit of Section 80 - Held that:- Since there is direct judgement on the issue in the case of Ceolric Services [2011 (2) TMI 764 - CESTAT, BANGALORE] remanding the matter to the adjudicating authority, I set aside the impugned order and remand the matter back to the adjudicating authority for reconsideration in view of provisions of Rule 7C of the Rules and after verification of the records. This has to be done as ld. Advocate has contended that they have actually taken cenvat credit of 50% on capital goods but due to mistake it was shown as 100% - Adjudicating authority shall pass order within three months from the date of issue of this order after affording a reasonable opportunity of producing records - Decided in favour of assessee.
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2014 (10) TMI 605
Waiver of pre deposit - Information Technology services - service consumed in SEZ - Held that:- In the case of Adani Power Ltd. (2014 (1) TMI 200 - CESTAT AHMEDABAD), unconditional stay was granted on the ground that the Notification No.4/2004-ST dt. 31.3.2004 specifically extended to the consumption of taxable service of any description to a developer of Special Economic Zone or any unit in any Special Economic Zone for consumption of the services within such Special Economic Zone. The other issues would be examined in detail at the time of appeal hearing - deposit of ₹ 14.53 lakhs is sufficient for waiver of predeposit of balance amount of tax along with interest and penalty. Accordingly, predeposit of balance amount of tax along with interest and penalty would be waived and recovery be stayed till disposal of appeal - Stay granted.
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2014 (10) TMI 604
Waiver of pre deposit - Eligibility of Cenvat Credit - construction of an immovable property - Held that:- in the case of Sai Sahmita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] and this tribunal in the case of Navratna S.G. Highway Pro. (P) Ltd. [2012 (7) TMI 316 - CESTAT, AHMEDABAD] has held that Cenvat Credit of service tax paid on input services used in the construction of immovable property would be available if such immovable property is used for rendering other taxable services. Following the same in the present case also, we hold that the appellant has made out a prima facie case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (10) TMI 603
Penalty u/s 78 - erection, commissioning and installation services - Held that:- During the impugned period, Service Tax was payable on receipt basis. Therefore the allegation of the ld. AR that the appellant has utilised the Service Tax is not sustainable in the facts that still the appellant has not received 100% remuneration of the services provided by them. We further find that the appellant have calculated the liability on accrual basis and paid Service Tax payable along with interest as pointed out by the department. In these circumstances, it cannot be said that they had mala fide intention to evade payment of service tax. Therefore, the appellants need immunity from imposing penalty under Section 78 of the Finance Act, 1994. Accordingly, we set aside the penalty under Section 78 of the Finance Act, 1994 - Decided in favour of assessee.
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2014 (10) TMI 602
Adjustment of tax - Management and repair services - money deposited by the respondent in the old Service Tax registration code belonging to the partnership firm - Held that:- Admittedly, the Service Tax was wrongly deposited in a wrong code belonging to partnership firm which was dissolved at the relevant time. As such, it is a mistake on the part of the respondents which is required to be rectified and the amount deposited in the partnership firm is required to be adjusted in the assessee’s registered code - Decided against Revenue.
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2014 (10) TMI 601
Denial of remission claim - adjustment of the excess service tax deposited - Authority rejected the claim for availing the benefit of this deposit on the ground that the assessee had filed only a photocopy of the internet banking challan dated 31-3-2008 without attestation - Held that:- Adjustment claimed of the excess service tax remitted just about 9 months prior to the due date on which the service tax liability accrues cannot be rejected on the basis of conditions spelt out in Rule 6(4A) and (4B). If an excess amount of service tax has been remitted and within a reasonable period thereof adjustment of this excess amount deposited is sought in respect of a service tax liability arising in subsequent months, there cannot be appropriation of the excess service tax deposit. Of this prima facie premise, the relevant provisions of Rule 6 may perhaps have to be interpreted by directory and not mandatory. demand of ₹ 58,36,314/- relatable to services provided to M/s. HCL Infinite, it is incumbent upon the Adjudicating Authority to verify the records to ascertain whether the amount was deposited by internet banking, particularly when the assessee provides a copy of a challan purportedly in proof of such deposit. since an amount of nearly ₹ 89,00,000/- was deposited, either in respect of the taxable services provided to M/s. HCL Infinite or by way of excess remittance of service tax on 30th June, 2006, we find a strong prima facie case in favour of the assessee. Accordingly, we grant waiver of pre-deposit and stay all further proceedings for recovery of the assessed liability, during pendency of the appeal - Stay granted.
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2014 (10) TMI 595
Waiver of pre deposit - Business Support Service - petitioner was having two divisions, namely, Textile Division and Online Business Marketing Division ('SOBM'). In Textile Division, three units were engaged in multi level marketing of various types of goods. It was observed that SOBM were making payment of commission to their distributors after deduction of renewal fees and card charges; and the amount so deducted was taken as liable to service tax w.e.f. 2005-06 under the category of "Business Support Service". - Held that:- it would serve the cause of justice if the requirement of the order passed by the Appellate Authority is modified and the condition of pre-deposit is reduced to an amount of ₹ 13,61,321/- (thirteen lacs sixty one thousand three hundred twenty one), which has already been deposited by the petitioner. - stay granted.
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2014 (10) TMI 569
Valuation of service - Inclusion of cost of spare parts or accessories or consumable such as lubricants and coolants provided/used during servicing of the vehicles - Authorized Service Station service - Held that:- Board Circular No. 96/7/2007-ST dated 23.08.2007 states that service tax is not leviable on the transaction treated as sale of goods and subjected to levy of sales of sales tax/VAT. It is seen that as recorded by the Commissioner (Appeals), respondents were able to establish that amount on which the impugned service tax has been demanded actually pertain to the sale of spare parts/accessories/consumables like lubricants etc. by showing copies of the VAT assessment orders for the financial years 2006-2007 & 2007-2008. It would clearly entitle them to the benefit of Notification No. 12/2003-ST. Indeed even the provisions of Section 67 lay down that the value for the purpose of levy of service tax is the gross amount charge for taxable service - Decided against Revenue.
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2014 (10) TMI 568
Valuation of the taxable service - inclusion of value of free supply - construction of commercial or industrial complex - abatement of 67% - exemption under Notification No. 15/2004-ST dated 10.09.2004, Notification No. 1/2006-ST dated 01.03.2006 or Notification No. 18/2005-ST dated 07.06.2005 - Held that:- adjudicating order in its discussion and finding portion has not devoted even a single line to discuss the includibility of the value of free supplies in the assessable value for the purpose of granting 67% abatement under the aforesaid notifications. However, this omission loses its significance considerably as the impugned Order-in-Appeal has discussed this issue - In view of the law relating the free supplies having now been settled by the CESTAT Larger Bench in the case of Bhayana Builders [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], it is deemed appropriate to remand the case to the original adjudicating authority for de novo adjudication. Accordingly we set aside the impugned order and remand the case to the original adjudicating authority for adjudicating the same afresh in view of, and in accordance with the judgment of CESTAT Larger Bench in the case of Bhayana Builders (supra) after giving the appellants an opportunity of being heard - Decided in favour of asessee.
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2014 (10) TMI 567
Waiver of pre deposit - Business Support service - Service of providing assured water infrastructure facility to the industries of Borai Industrial Growth Centre - Held that:- during the concession period the appellants will own, operate and maintain the project and sell water to the corporation on agreed terms. Thus, the amounts received by the appellants are the sale proceeds of water and are not for rendering any service. Thus, prima facie, their activity does not fall under the category of Business Support Service. prima facie the appellants have made out a good case for waiver of pre-deposit. Therefore we waive the pre-deposit and order stay of recovery of impugned service tax, interest and penalty during the pendency of the appeal. - Stay granted.
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2014 (10) TMI 566
Waiver of pre deposit - Renting of equipments - right to use - appellants leased out the vacuum insulated storage tanks to the customers - Assessee paid VAT on the lease/rent received by them - Held that:- Possession has been transferred and one of the requirements of the definition of supply of tangible goods service is that possession and effective control should not have been transferred. If the possession is not transferred, the liability for any damage would be on the supplier. Another point according to the learned AR supports the case of the Revenue is the fact that appellant can have free access at all times to the equipment in buyer's premises. If the effective control and possession are with the appellants, then there is no need for this clause at all. If effective control is with the appellant then there is no need to have a clause in the agreement empowering them to have access to the premises to take care of the equipment. The discussion above would show that appellant has made out a case prima facie on merit. Accordingly, there shall be waiver of pre-deposit of the adjudged dues and stay against recovery for a period of 180 days - stay granted.
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2014 (10) TMI 565
Condonation of delay - Inordinate delay of 175 days - Held that:- There is no dispute as to the fact that the appellant made Sanjayraj Hotels & Resorts has received the impugned order in August 2013. We also find that the entire explanation given by the Ld Counsel and as mentioned on the ground seeking condonation of delay is that Director of the Company being a political personality could not find time to attend to the impugned order and also that the levy has been declared as unconstitutional by the Hon’ble high Court of Gujarat.
Perusal of the records indicates that before the Adjudicating authority, appellant’’s were represented by authorised signatories of the appellant. It is also noticed that for verifications to arrive quantum of service tax liability of contract, summons were issued to the appellant who had specifically recorded and stated that authorised representative of the appellant will appear and give detailed explanation. The said authorised representative was summoned and statements were recorded. Subsequently, show cause notice was issued to the appellant who did not reply nor did he participate in the adjudication proceedings. On receipt of the adjudication order, an appeal to the first appellate authority was filed belatedly 15 days, which was condoned by the first appellate authority. In the entire case records, it transpires that the appellant had been taking the issue very lightly. appellant has not made out a case for condoning the delay in filing the appeal before the Tribunal - Condonation denied.
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2014 (10) TMI 564
CENVAT Credit - Credit availed on various services - Held that:- In respect of exports, the place of removal is port and therefore the services cannot be said to have been obtained after the removal of the goods. Moreover it is also not correct to say that credit of duty paid on all services received after removal of the goods are not eligible. The definition itself clearly provides that certain services are included in the definition of ‘input services’ and the inclusive definition has been provided to take care of such situation. Having regard to the nature of services received, amount involved and the definition of input services, I consider that appellant is eligible for the credit of duty paid by them - Decided in favour of assessee.
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2014 (10) TMI 563
Denial of refund claim - Unjust enrichment - whether the refund granted to the respondents would result in unjust enrichment or not - Held that:- The fact that the contract with the customer was inclusive of all the taxes and any change in the tax amount would not make any effect on the contracted value, is not being disputed by the Revenue. If that be so, it has to be held that the tax variation, being not a part of the contracted value, would not result in any unjust enrichment of the assessee - Decided against Revenue.
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2014 (10) TMI 562
Cenvat credit of Service Tax paid - Receipt of payment for sales promotion activity - overriding commission to be treated as expenditure incurred after the removal of the goods from the factory - Held that:- LPG stoves manufactured by the appellant are sold through the dealers of Indane gas of Indian Oil Corporation Ltd. for permitting the appellant to sell the stoves through the Indian Oil Corporation dealers of LPG gas and for allowing the appellant to put the logo ‘indane’ and logo of the appellant on the stove as well as on publicity material and for stating that LPG stoves are recommended by Indane, the appellants have paid some consideration and the receiver has discharged the Service Tax obligation treating it as Business Auxiliary Service. Memorandum of Understanding is very clear and clearly shows that what is undertaken by Indian Oil Corporation Ltd. is in reality a sales promotion activity and therefore appellant has made out a prima facie case for eligibility of Cenvat credit availed by them. Accordingly there shall be complete waiver of pre-deposit and stay against recovery during the pendency of appeal - Stay granted.
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2014 (10) TMI 525
Commercial or Industrial Construction Service - main contractor has paid Service Tax on the transaction - Whether the sub-contractor of a main contractor is liable to discharge the service tax liability on the services provided by him on the same transaction - Held that:- Notification No. 1/2006-ST is in confrontation with the charging section, Section 66 of the Finance Act, 1994 and accordingly I hold the same is not applicable in the facts and circumstances of the case so far as the condition relating to not taking of CENVAT Credit is concerned of the service tax paid by the sub-contractor. Further, I notice that the finding of fact recorded by the adjudicating authority having not been challenged by any of the parties, and in view of the categorical finding of fact recorded, I hold that the respondent assessee is entitled to refund - Apex Court in the case of L&T Ltd. [2008 (8) TMI 21 - SUPREME COURT], I hold that opinion of the third member as rendered in the case of Sunil Hi-tech Engineers Ltd. [2014 (10) TMI 524 - CESTAT MUMBAI (LB)] by this Tribunal is not binding and held per incuriam as the same is directly in the teeth of the ruling of the Apex Court and is passed without taking notice of the aforementioned ruling of the Hon'ble Supreme Court - Decided against Revenue.
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