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Service Tax - Case Laws
Showing 61 to 80 of 2343 Records
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2015 (12) TMI 1216 - CESTAT CHENNAI
Waiver of pre deposit - import of services - Revenues contention is that the party abroad being an agent of the appellant the service provided by that agent was compensated by way of payment from India. The compensation for service being provided that shall be taxed and liable on reverse charge mechanism. - Held that:- Perusal of the MOU between the parties, prima facie, throws light there is absence of the principal and agent relationship. The shipping document also showed that there was a sale of the goods from India which was in the course of export. No such document came to our notice to appreciate the Revenues contention at this stage. - Prima facie, looking to the factual aspects and nature of the transaction and also understanding of the parties in MOU, there shall be waiver of predeposit in all the stay applications during pendency of the appeals. - Stay granted.
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2015 (12) TMI 1168 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Courier Service - whether the Courier Service and Mobile service availed by the manufacturer for the period from April 2008 to June 2011 would be available as input service in terms of Rule 2(l) of Cenvat Credit Rules, 2004, enabling the manufacturer to take credit of service tax paid on such Courier Services and Mobile services - Held that:- Bench of the Tribunal in the case of CCE & Cus. Vapi vs. Apar Industries Limited [2010 (8) TMI 407 - CESTAT, AHMEDABAD ] has held that service tax paid on the input services namely Courier Services would be eligible for cenvat credit. The said decision was upheld by the Hon’ble Gujarat High Court [2013 (2) TMI 276 - GUJARAT HIGH COURT]. Further, the Hon’ble Gujarat High Court has also held that service tax paid on mobile phones would be eligible for taking cenvat credit vide vs. Excel Crop Care Limited [2008 (7) TMI 160 - HIGH COURT GUJARAT ]. - no reason to interfere with the impugned Order-in-Appeal - Decided against Revenue.
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2015 (12) TMI 1167 - CESTAT MUMBAI
Technical testing and analysis service - reverse charge - services are imported or not - penalties under section 76, 77 and 78 - Non filing of ST-3 returns - Held that:- Service in question is purely a testing service which is performed in the laboratory of M/s KHVL, Netherlands. The certificate from KHVL shows that the test was conducted in their laboratory in Netherlands. Under section 66(A), any service received by a person in India from outside India shall be treated as if the recipient had himself provided the service. Rule 3 of the Taxation of Services (Provided from Outside India and received in India) Rules, 2006 determine the fact as to when a service is considered to be received in India. Service categorized under section 65(105)(zz) is covered under Rule 3(ii).
The lower authorities have failed to understand the provisions of Rule 3 ibid, particularly Rule 3(ii). Proviso to Rule 3(ii) states that when a service is partly performed in India, it shall be treated as performed in India. Revenue has not justified how the service is performed outside India. Therefore, it cannot be said that the service has been received in India. The service tax is clearly not payable by the appellant in the present case. As tax is not payable, the question of interest and penalties and other fees does not arise. - Impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 1166 - CESTAT BANGALORE
Denial of rebate claim - receipt of commission on transaction - output service was not exported and this is on the ground that the service was performed in India, the benefit was received by the recipients of the machines/equipments purchased by the Indian customers and therefore, the service cannot be said to have been exported - Held that:- Service has to be held as rendered to the recipient abroad and used abroad. When the service recipient analyses the orders and decides either to accept the order or to reject the same, it has to be held that service was received by the recipient abroad and it is partly performed in India and partly performed abroad. Therefore, the stand taken by the lower authorities that it cannot be considered as export of service cannot be sustained - Decided in favour of assessee.
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2015 (12) TMI 1165 - CESTAT BANGALORE
Denial of rebate of Service Tax - no nexus between the input services and the exported output service - whether the appellant is eligible for the rebate of Service Tax paid at the time of export of their services under Notification No. 11/2005-S.T - Held that:- while considering the rebate claim for output service, the nexus issue cannot be raised. The only thing that can be considered is whether the tax has been paid or not. The proper course of action would have been to propose to denial of the Cenvat credit which has been used for payment of Service Tax on the output service on the ground that there is no nexus. There is no clear proposition or proposal for this in the show cause notice. In the absence of a clear proposal, the ground of nexus to reject the rebate claim of tax paid on output service, in my opinion, could not have been used. - I do not consider it appropriate that the rebate claim could have been rejected. - Decided in favour of assessee.
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2015 (12) TMI 1164 - CESTAT NEW DELHI
Short payment of service tax - Security service - guilty of wilful mis-statement/suppression of fact - Penalty u/s 78 - Held that:- Appellants have been collecting service tax as part of gross amount charged and therefore non-deposit thereof on the ground of financial crunch is totally unacceptable. Financial crunch is no circumstance can justify non-deposit of service tax collected. Obviously thus there is not a great deal of discussion required to conclude that the appellants deliberately short paid the service tax due and the impugned order does not suffer from any appealable infirmity on merit. The appellants during the hearing have pleaded that for penalty under Section 78 the benefit of payment of 25% of the mandatory equal penalty as per proviso to Section 78 of the Finance Act should be given to them as the same had not been done in the impugned order. - No merit in the appeals except to the extent that the benefit of 25% of mandatory equal penalty under Section 78 ibid is required to be extended to the appellants - Decided partly in favour of assessee.
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2015 (12) TMI 1163 - CESTAT BANGALORE
Denial of refund claim - buyers of the flats/apartments from builders/developers have filed refund claims of service tax paid by them during the period prior to 1.7.2010 - Held that:- appellants submits that in these cases also the impugned orders may be set aside and the matter may be remanded to the original adjudicating authorities to decide the matters afresh following the observations in the final order referred to above after giving opportunity to the appellants to present their case. - since an order has already been passed earlier. - matter remanded back.
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2015 (12) TMI 1162 - CESTAT MUMBAI
CENVAT Credit - Duty paying documents not produced - Reverse Charge Mechanism - Held that:- Adjudicating authority in the impugned order specifically held that these demands were neither disputed by the appellant in the written submission nor during the personal hearing. The adjudicating authority further held that the credit has been availed and utilized without any document evidence for the payment of service tax and without specifying the input service - in the show cause notice there is a specific allegation that appellant has availed this credit without any documents evidencing the payment of service tax and without specifying input services and the input service provider as mandatory under the Cenvat Credit Rules. In spite of this specific allegation in reply to show cause notice appellant had not contested this averment in the reply to show cause notice nor in the written submission filed at the time of personal hearing. In the appeal before us the appellant in the grounds of appeal has challenged this demand but had not produced any evidence as mentioned in the show cause notice regarding the payment of service tax. In these circumstances, we find no infirmity in the impugned orders where these demands are confirmed - Decided against the assessee.
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2015 (12) TMI 1111 - CESTAT MUMBAI
Denial of CENVAT Credit - Input services used for Commercial Industrial Construction Service (CICS) - Renting of Immoveable Property Service (RIPS) - whether appellant is not eligible for credit as input services have resulted in an immovable property which is neither excisable nor any service tax is payable on the same - penalty under Rule 15(3) of the Cenvat Credit Rules read with Section 78 of the Finance Act, 1994 - Held that:- In 2011 the appellant declared their intention of availing Cenvat Credit on input services for discharging the service tax liability on the output service namely Renting of Immovable Property Service. There is no hiding the fact that these services were received over a period of 5 years from 2007 to 2011. And it was only when the construction was ready for renting out they took centralized registration in 2011. In the centralized registration the input service as well as the services to be provided were declared. We find that as held by the Hon'ble High Court of Karnataka in the case of mPortal India Wireless Solutions Pvt. Ltd., there is no provision in the Cenvat Credit Rules which imposes a restriction on availment of credit on input services procured before registration is taken.
On the apprehension raised of Revenue as to how the verification could have been done in respect of services procured during the previous five years, we find that the appellant had submitted all documents including invoices before issue of show cause notice which enabled the department to make such verification. We may further go on to say that in the show cause notice no doubt has been expressed regarding the actual receipt of the services. As regards the verification of actual use of the input services, we find that the Annexure "A" to the show cause notice gives details of Cenvat credit availed on inputs and capital goods for the period 1.6.2007 to 31.3.2011 implying that department has conceded that the Cenvat credit was availed for the construction of mall and Renting of Immovable Property Service.
Almost the entire credit has been availed on input services which have been used for providing the output service that is Renting of Immoveable Property Service for which there was no restriction under the clause (l) of the definition of ‘input service'. The inclusive part of the definition of input service allowed services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service etc. The words "setting up" were deleted only from 1.4.2011. Therefore the appellant are eligible for the credit in terms of the definition of input service. - credit is held to be admissible and recovery of the same is set aside - Decided in favour of assessee.
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2015 (12) TMI 1110 - CESTAT BANGALORE
Levy of penalty for delayed filing of ST-3 return - Levy Penalty u/s 77 & 78 for default in payment of service tax - Manpower supply service - Held that:- In respect of the appellant assessee, where service of supply of manpower had come under the tax net about three months back and where the service recipient was a 100% EOU registered with Cochin Special Economic Zone leading them to believe that liability of service tax was not payable by them and considering the case laws quoted above by the appellant, I am of the considered view that the appellant assessee deserves relief in case of penalties imposed on them under Sections 77 and 78 of the Finance Act, 1994 and the same are hereby set aside - However provisions of Section 80 of Finance Act, 1994 gives relief from imposition of penalty in case of penalties imposed under Sections 77 & 78 of the Finance Act, 1994 only. Here the appellant has been penalized under Section 70 also, when they had delayed the filing of their half-yearly return contravening the relevant provisions of law of Service Tax. This penalty of ₹ 4000/- imposed under Section 70 of the Finance Act, 1994 on the appellant assessee does not deserve to be set aside - Decided in favour of assessee.
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2015 (12) TMI 1109 - CESTAT MUMBAI
Refund claim made by the recipient of services - service tax was paid wrongly by the service provider - Service Tax invoice issued by M/s. IDSPL is in the name of M/s. Fujitsu, New Delhi - Held that:- M/s. IDSPL has paid the service tax on ‘Business Transfer Fees' which was admitted that Service Tax on the said transaction is not payable. The Business Transfer Fees alongwith service tax was paid by the respondent to M/s. IDSPL and the same was accounted for in the books of respondent. In view of this there is no dispute regarding payment of service tax and incidence of the same was borne by the respondent. As regard the invoice raised by the M/s. IDSPL in favour of respondent at Delhi address, it does not make any difference for processing the refund claim for the reason that Delhi office of the Respondent is their registered office and the same is not different entity, it is integral part and parcel of the one company of the respondent. The respondent having centralized registration at Pune, have correctly lodged their claim at Pune, particularly when the Service Tax by M/s. IDSPL was also paid in Pune only. - respondent's Pune office has right to claim at Pune only, therefore the claim is not without the Jurisdiction. It is also not the case of the Revenue that the same refund either claimed by the respondent's Delhi office or by another person. Since the service tax was erroneously paid the same has to be refunded and M/s. IDSPL has given the disclaimer, only right to claim the refund is with respondent only. - infirmity therein. Accordingly, the impugned order has to be sustained - Decided against Revenue.
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2015 (12) TMI 1108 - CESTAT CHENNAI
Classification of service - Radiographic testing services or photographic services - Held that:- The period involved in this case is 16.07.2001 to 17.06.2003. In perusal of OIO and OIA, we find that the nature of service has been explained by the adjudicating authority elaborately. We find that the appellants are not rendering any photographic services but carrying out radiographic testing on industrial castings so as to identify any defects on the castings by using X-ray film through Radiography testing. On perusal of the film, we find that the x-ray strip of castings No. ABG2927 L4-L5 shows defects (cavity). It is very clear that the appellants are rendered radiographic testing of castings by using the x-ray films, which is commonly employed by any metallurgical industry and automobile industry, where high precision moulds and castings is of auto components are x-ray tested for quality so as to avoid risk and damage of automobiles.
Lower appellate authority in his findings held that the Board’s Circular is not applicable to the present case on the ground that the said clarification is only applicable to medical field. However, we find that there is no such mention in the Board's Circular that it is applicable only in the medical field. Further we find that the new service “Testing and Technical service” was specifically introduced under Section 65(105)zzi of the Finance Act.
The radiographic testing services rendered by the appellants does not fall under the category of photographic services during the relevant period - Decided in favour of assessee.
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2015 (12) TMI 1107 - CESTAT NEW DELHI
Demand of service tax - Business Auxiliary Service - Valuation - Inclusion of reimbursement towards shortage fuel stock diesel consumed in generator, electricity bills, telephone bills and bank charges - Held that:- Service of sale of goods produced or provided by or belonging to the client is clearly covered under limb (i) of the definition of Business Auxiliary Service. The contention of the appellant is that it should be treated as rendering man power recruitment or supply agency service. However, the reimbursement was made for the entire gamut of services rendered by the appellant and the labour required therefor has been taken into account only for the purpose of arriving at the quantum of payment for the services rendered. The labour employed remained employees of the appellant who had total control and supervision over them. M/s.HPCL had no supervision or control over the manpower employed by the appellant. Thus it is evident that the appellant did not provide any man power to M/s.HPCL and engaged the labour to render service to HPCL. Thus the appellant was not a supplier of man power to the service recipient and therefore the contention of the appellant in this regard is found to be untenable
Reimbursement towards shortage fuel stock diesel consumed in generator, electricity bills, telephone bills and bank charges on a close scrutiny may not be includible in the assessable value. However, as has been conceded by the learned Advocate, it does not have any evidence as to what was the actual amount of such reimbursements and therefore as the appellant is not in a position to claim such deduction for want of evidence to establish the exact amount of such reimbursements, we are unable to give benefit in this regard. - there is no such infirmity in the impugned order as to warrant appellate intervention - Decided against assessee.
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2015 (12) TMI 1106 - CESTAT BANGALORE
Denial of CENVAT credit for the input services viz. advertisement, DVD film production, campaigning in electronic and print media etc. which were used for collecting capital through IPO by the appellant - IPO to collect capital for expansion of manufacturing facilities of their products - Held that:- Impugned order, when it has denied the CENVAT credit available to the appellant, has not talked about the new unit or the old unit. The learned advocate for the appellant however says that they would like to claim CENVAT credit in case of the new unit of the appellant company. Considering this averment of the appellant, there cannot be any dispute now whether credit should go to the old unit or the new unit; and if as claimed by the learned AR appearing for the respondent, that old unit is not entitled to claim the CENVAT credit, it is not an issue now when the appellant's pleading to claim CENVAT credit only in respect of new unit. - appellant is entitled to the CENVAT credit which was denied by the impugned order. When the appellant has been found to be entitled to the CENVAT credit, there cannot be any question of imposition of penalty. Consequently, the impugned order is set aside - Decided in favour of assessee.
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2015 (12) TMI 1105 - CESTAT MUMBAI
Demand of service tax - best judgement assessment - wrong filing of ST-3 return - appellants have adjusted the payables against receivables in the figures given in the return - Classification of service tax - Business Support service or courier service - Taxability of network fee - Export of Service - Bar of limitation - Imposition of penalty - Cum Tax benefit - Held that:- DHLI are the service receivers and they have hired the appellants for the job. The entire operation takes place within India. - The nature of services in BSS is totally different from the services provided by the appellant. The Section 65A deals with the classification of services - The activity being carried out by the appellants is ‘transportation of time-sensitive documents, goods or articles utilising the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles' from DHLI office to consignor's premises or from consignee's premises to DHLI premises. Since this is a more specific classification available it has to be preferred over a more general classification. Thus it is a clear case of courier service provided by the appellants to DHLI.
It has been admitted that the network fee is only in respect of the Billed shipments as a compensation for funding the network costs. In fact the appellants receive services of the DHLI only for billed shipments. For Unbilled shipments no services are provided by DHLI to appellants. In respect of the Unbilled shipments it is the appellants who provide services to the DHLI. However since a single consolidated account is maintained the amounts payable by appellant to DHLI and those payable by DHLI to appellant get adjusted against each other. While doing so they are maintaining a consolidated account of amounts to be paid and only net transaction are made on monthly basis. From above it is apparent that as a result of the setting off of amounts payable against receivables there has been a undervaluation of not only assessable value in respect of courier service provided by the appellants but also of the courier service received by the appellants.
Appellants are recouping their compensation i.e. costs as well as an arm' length margin (costs plus 10%), from the billed shipments contracted by them. In other words the consideration for the services provided by the appellant are adjusted against the money payable to DHLI for the services received in respect of billed shipments.
Appellants are getting a consideration from the DHLI on the costs plus basis. The figures for the Network fee are arrived on net basis after deducting the appellant's consideration, not only of billed consignments in respect of which they receive some services from DHLI, but also of Unbilled consignments in respect of which no services are provided by DHLI to appellants and other costs. Thus it is held that adjustment of the receivables for service provided against the amounts payable for the service received, or incentives and costs, is incorrect. The service tax in each case has to be paid on the Gross value of each service separately.
Circumstances prescribed in the said section do not exist in the instant case to enable the Commissioner to adopt the best judgment method. They claimed that they have indeed filed the returns and have assessed their liability correctly. The appellants have filed the returns but have, according to the Order, failed to assess the tax in accordance with the provisions of the Act or rules made thereunder. They have not paid tax on the ‘Unbilled transactions in respect of provision of service to the DHLI. Thus it is possible to determine the assessable value on the best judgement method by virtue of clause (b) of the section 72 of the Act.
It is seen that the service provide by the appellants is courier service specified under clause 105(f) of section 65 of the Act. This falls under the category under clause (ii) of sub-rule (1) of rule 3 of the Export of Services Rules, 2005. In respect of this category the place of performance is critical in determining the factum of export. In the instant case the entire courier service provide by appellants to DHLI was performed in India. The documents to be couriered are delivered in India and the same are received in India. It is immaterial if the payment of the same is received in Foreign Currency.
The law is very clear that gross amount charges is to be declared in the returns and service tax is to be paid on the same. There is no ambiguity in the law in this regard. There is no provision where the amount payable for a service can be set off against amount receivable for the services provided to arrive at assessable value. There is no case for invoking Section 80.
The demand in respect of services received by appellant and where service tax has been demanded on reverse charge basis is set aside for the period beyond the normal period of limitation. - For the demand in respect of services provided by appellant to DHLI in respect of Unbilled consignments the benefit of calculation of tax on cum duty basis is allowed. - The penalty under Section 78 is reduced correspondingly to the revised amount of demand worked out after allowing cum duty benefit and limitation worked out - Penalty under Section 77 is upheld - Petition disposed of.
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2015 (12) TMI 1088 - CESTAT BANGALORE
Refund of the CENVAT credit of duty availed on various raw materials and input services in terms of the provisions of Rule 5 of CENVAT Credit Rules 2004 - Held that:- There is a direct decision of the Tribunal in the assessees own case reported as CC & ST Vs Bioplus Life Sciences Pvt Ltd., [2014 (11) TMI 954 - CESTAT BANGALORE]. In the said decision, identical input services were involved which were held as cenvatable input services by the lower authorities and the appeal filed by the Revenue stands rejected. Inasmuch as the issue stands decided in favour of the assessee, we deem it fit to set aside the impugned orders and remand the matters to the original adjudicating authority for processing the appellants refund claim - Appeal disposed of.
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2015 (12) TMI 1062 - GUJARAT HIGH COURT
Availment of CENVAT Credit - 'Rent-a-Cab', 'Tour Operators', and 'Travel Agent service - Nexus with manufacturing activity - Held that:- There was no dispute even by the Department on the issue that the assessee had consumed for itself various services at various stages in their manufacturing and business activities. Cost was borne by the assessee which also formed a part of the value of the goods manufactured - Rule 2 (l) of the Cenvat Credit Rules, 2004 defines "input service". This definition is couched in means and includes the expression. The definition 'input service' would mean, any service used by the provider of output service, or used by the manufacturer directly or indirectly in or in relation to the manufacture of final products and clearance of final products from the place of removal, and would include various services specified in the said definition. Thus, the term 'input service' would mean any service used by the manufacturer directly or indirectly in or in relation to manufacture of final products and clearance of final product from the place of removal - service in question was 'input service' and the service tax paid thereon would be available to the assessee by way of Cenvat Credit. No question of law, therefore, arises - Decided against the revenue.
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2015 (12) TMI 1061 - MADRAS HIGH COURT
Waiver of pre-deposit - mandatory pre-deposit @7.5% or substantial amount as directed by the tribunal - underwriters services - assessee had entered into an underwriting agreement with various organisations, for the sale and purchase of American Depository Shares, by the underwriters - Interest u/s 75 - Penalty u/s 76, 77 & 78 - Held that:- at this stage of the hearing of the appeals, the learned Senior counsel, appearing on behalf of the appellant, had submitted that in view of the facts and circumstances of the case, and in view of the fact that, as per the amendment brought forth during the year, 2014, the appellant may be liable to make a pre-deposit of only 7.5% of the demand. In such circumstances, he had offered that the appellant would deposit a sum of ₹ 5 crores, as pre-deposit, towards the service tax, for the hearing of the appeal before the Customs, Excise and Service Tax Appellate Tribunal.
It is appropriate to set aside the orders passed by the Tribunal, on 29.5.2015 and 11.9.2015, and to direct the appellant to deposit a sum of ₹ 5 crores, as pre-deposit towards the service tax, within a period of four weeks from the date of receipt of a copy of this order. The penalty and the interest imposed on the appellant stands waived till the disposal of the appeal - Appeal disposed of.
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2015 (12) TMI 1060 - CESTAT AHMEDABAD
CENVAT Credit - scope of input services - Rule 2(l) - Credit on inputs, capital goods and input services used in various output services - Held that:- input Cement and Steel used in the factory of manufacturer shall not be eligible input credit. This explanation is applicable only to the manufacturer and not the service provider. It is to be read strictly as per plain meaning of the statute. There is no indication in the Explanation that it would apply to the service provider. The Hon'ble Gujarat High Court in the appellants own case held that amendment in Explanation-2 in Notification No. 16/2009-CE (NT) (supra) was not clarificatory in nature and the amended definition will not be applicable to the service providers. So, the denial of input credit on Cement and Steel before and after amendment of Explanation 2 of definition Input, cannot be sustained.
Jetty is used for loading and unloading of goods. The definition of Port service under Section 65 (82) of the said Act, 1994 covers any service rendered by a port in any manner in relation to a vessel or goods. Thus, jetty is used within the port for loading and unloading of the goods from the vessel. Port cannot function without jetty. So, CENVAT credit on the inputs and capital goods used in the construction of jetty is eligible for output service namely port service. It is noticed from the above decisions that the test of input and capital goods in respect of output service is whether it is used for providing output service. In the present case, it is clearly evident that the inputs and capital goods were used in construction of jetty for rendering port service. There is no reason to deny CENVAT credit on such input and capital goods.
Notification No. 25/2007-ST (supra) exempts from payment of service tax on the Commercial or Industrial construction services. It would apply to a Commercial concern in relation to construction of Port or other Port provided service to any person exempted from the whole of service tax leviable thereon. In the present case, the Port was constructed by the contractor appointed by the Appellant for construction of Jetty, the exemption is applicable to the contractor. The contractors are not eligible to avail CENVAT credit. On the other hand, the appellant paid service tax on Port service. Hence, the Appellants are entitled to avail CENVAT credit on the inputs used for taxable output services, Port service. We find that the Hon’ble Gujarat High Court in the Appellant’s own case, as stated above, held that Appellant is entitled for input credit and it cannot be denied since construction of jetty was exempted. So, the findings of the adjudicating authority on this issue, is not sustainable.
Various input services - Nexus with output services - Nexus of these Input Services with output service are covered in the inclusive part of the definition viz. services used in relation to business activities . The nexus of inputs Service used in the business related activities would be established by the narration of the services in their accounts. In any event, all the services were duly recorded in the books of accounts, which were audited under the companies Act and other authorities. Further, the services coming under Professional Services (0.67%) and Construction Services (0.10%) are evidently eligible for CENVAT Credit, as observed herein earlier.
Appellants have rendered services within Special Economic Zone (SEZ). In terms of Section Rule 6(6)(i) of the Cenvat Credit Rules, the appellant was not required to reverse the Cenvat Credit used in the Special Economic Zone (SEZ). The appellants would be eligible to avail Cenvat Credit as specified under Rule 6(5) of the Cenvat Credit Rules as the same have been used for providing output Services.
Central Excise Officers raised the demand after scrutiny of the records on the above Input Services. The various services as detailed mentioned in reply to the show cause notice are also placed before the Tribunal. The nexus between the Input and Output services is clearly evident from the records except for items namely Air Travel Agency, Airport Service, Mandap Keeper Service, Membership of Clubs, Passenger Embarking for Foreigner and Sponsorship Service which requires to be examined by the Adjudicating authority. So, there is no reason to deny CENVAT Credit on the input services except the items mentioned above.
It is a case of eligibility of CENVAT Credit on input, input service and capital goods and most of the items are admissible and therefore, imposition of penalty is not warranted. - Substantially decided in favor of assessee.
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2015 (12) TMI 1059 - CESTAT NEW DELHI
Denial of CENVAT Credit - whether appellants are entitled to use the Cenvat Credit to discharge their service tax liability in regard to GTA and BAS service, when they are not the service provider for such services - Held that:- Finance Act, 1994 is the law which deals with taxability of services. Taxation of Service Rules, 2006 enacted under the Finance Act, 1994 inter alia lays contains provisions governing the services which are provided from outside India and received in India. Rule 5 of the said Rules prevents the utilization of credit for discharging Service Tax on taxable services provided from outside India and received in India. In view thereof the demand of service tax as deemed provider of BAS services as per the impugned order does not warrant any interference. The same is upheld. The impugned order to the extent of demand of service tax on account of GTA services as discussed above, is set aside.
Commissioner (Appeals) has upheld the penalty imposed under Section 76 of Finance Act, observing that the appellant ought not to have paid the service tax from Cenvat credit, but should have paid in cash. The issue being interpretational and as the appellant has already discharged the service tax, we consider that imposing penalty would not be appropriate and the same is set aside in terms of section 80 of the Finance Act, 1994. We would also like to observe that though the Commissioner states that the penalty imposed under Section 70 read with Rule 7(2) is proper and upheld, no such penalty is seen imposed by the original authority. - Decided partly in favour of assessee.
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