|
Advanced Search Options
Service Tax - Case Laws
Showing 81 to 100 of 2343 Records
-
2015 (12) TMI 1058 - CESTAT NEW DELHI
Demand of service tax - Consulting engineer service - Held that:- Appellant was given the work which included design, engineering, procurement, manufacture, supply, civil works, erection, testing commissioning, reliability run, demonstration of performance guarantees as well as total project management in an integrated manner and on turnkey basis, and any other works reasonably required for the completion of the Facility and/or for safe, trouble free, normal operation of the facility. Therefore, there is force in the appellant s contention that merely because it had entered into four contracts for completing the scope of work would not take away from the fact that it was an operation of erection and commissioning on a turnkey basis and therefore the service rendered was works contract service which was not liable to service tax prior to 1.6.2007 in the light of the judgement of Supreme Court in the case of Larsen & Toubro (2015 (8) TMI 749 - SUPREME COURT). - period of dispute in this case is August 2003 to November 2005. Thus during the relevant period, the appellant being a body corporate was not covered under the definition of consulting engineer as per the above quoted judgement of Delhi High Court and consequently, the service rendered by the appellant could not be classified under Consulting Engineer Service under which the impugned demand is confirmed. - impugned demand is not sustainable. - Decided in favour of assessee.
-
2015 (12) TMI 1057 - CESTAT CHENNAI
Demand of service tax - Royalty charges or lease rental - whether the monthly Royalty charges collected by the appellant towards Development of VIIth Berth as Container Terminal and its operation and maintenance on BOT basis is taxable under port services or otherwise - Penalty u/s 76 & 78 - Held that:- As per Article 7.3.5 of the agreement in consideration of the said agreement there is a initial lump sum payment of ₹ 45 Million for the licence. In addition there is a monthly royalty payment as stipulated in Article 7.3.5.2. and the present demand is only on the monthly royalty charges collected for the licencee and not on the lumpsum payment. From the above it is proved beyond doubt that the royalty charges received by the appellants is for overall consideration towards the development of VIIth Berth as container terminal under the above BOT agreement and rightly falls under “port services” and the amount of royalty charges are rightly chargeable to service tax under port services. Therefore, the appellant s contention that they have not provided any service except leasing/ renting of the berth and the amount is only towards lease/rent of vacant land is not at all justified and not supported by law.
The licencee cannot change the design and drawing once approved by the appellant without prior consent of the TPT. This clearly shows the indirect activities/services rendered by the appellant on the development of the above project which clearly falls under Port Services. The appellant contended that the said Royalty Charges are received only towards Renting/leasing of the vacant land and not for any services rendered whereas on perusal of the entire Licence Agreement, we failed to see the word "Renting or Leasing of the Property" is used in any of the articles of the agreement. Further, we find that the Licence agreement dt. 15.7.98 entered by appellant for development of Container Terminal is a self-contained document envisaging every details of the project. It is not only lists out terms and conditions of operation and maintenance but brings out minute details, specification of the logistics, staffing, reporting. Therefore, BOT agreement cannot be compared or equated to any normal agreement of leasing of property.
The term Licence used in the present BOT agreement is to include the Licensor, Licensed Premises and Licence period and they are used with full meaning and these cannot be by any stretch of imagination can be called or termed as Lessor or Leased Premises or Lease Period. Therefore, the appellant's claim that they have only leased out portion of the port area and received lease amount as Royalty charges has no basis and the monthly Royalty charges are worked out as per Appendix 12, based on Tonnage handling is in totality of all the services rendered either direct or indirect as stipulated in the various Articles of the Agreement and it is only for the port services i.e. Development of Container Terminal for handling of vessels and goods.
There is no obligation of GMB brought out in the said order. Further, GMB has granted rebate of 80% wharfage to be adjusted against the cost of construction of jetty by UCL. Whereas in the present case there is a clear obligation of Licensor i.e. TPT is set out in the agreement and there is no rebate granted by TPT to PSA towards construction cost. TPT received Lump sum payment in addition to Royalty charges. The agreement of GMB in the above case is entirely different from the Licence agreement of TPT in the present case. Therefore, we find that the ratio of the Hon'ble Supreme Court case law of GMB case relied by appellant is clearly distinguishable on the facts and the same is not applicable to the present case. Similarly, the Tribunal decisions relied by the appellant in the case of Cochin Port Trust and Gujarat Chem Port Terminal also clearly distinguishable from the facts of the present case.
Royalty charges received by the appellant from Licensee as per Licence Agreement for Development of VII Berth as Container Terminal, operation and maintenance on BOT basis is chargeable to service tax under Port Service. - service tax demand was confirmed on the gross monthly royalty charges received during the disputed period without allowing cum tax benefit. It is settled law that appellants are eligible for the cum tax benefit on the total amount received as monthly royalty charges. Accordingly, we hold that appellants are eligible for cum tax benefit on the gross amount received and after allowing the cum tax value benefit the revised demand is liable to be upheld.
As regards imposition of penalty on the appellant, both under Section 76 and 78 of Finance Act, we find that the appellants, a PSU are duly registered with Department and paying service tax regularly on the Port Services rendered from the beginning. The appellants are under bonafide belief that the said charges are not taxable during the relevant period. We also find that the appellants regularly paying service tax on the Royalty charges w.e.f. 1.6.2007. Therefore, we are of the view that there was a reasonable and bonafide cause for appellant's failure to pay service tax. Therefore, by invoking Section 80 of Finance Act, we set aside the penalty imposed under Section 76 and 78.
Monthly Royalty Charges received by the appellants from their Licensee during the period under dispute for the development of Seventh Operation and Maintenance on BOT basis as per the Licence Agreement dt. 15.7.1998 are chargeable to service tax under "Port Services". The demand is upheld but for the cum tax benefit. The penalty imposed under Section 76 and 78 are waived - Decided partly in favour of assessee.
-
2015 (12) TMI 1056 - CESTAT AHMEDABAD
Refund claim of accumulated CENVAT Credit - 100% EOU - export of services - period of limitation - Held that:- as notification 27/2012-CE (NT) dated 18.06.2012 specifically mentions that the time limit mentioned under Section 11B would be applicable for refund of CENVAT credit. The next factor to be considered would be the relevant date for computing the time-limit prescribed under Section 11B for this aspect, we find force in the submission of the learned Counsel that the date of export invoice should be treated as the relevant date. The time limit of one year prescribed under Section 11B of the Central Excise Act would be computed from this date and refund claims submitted within the said time limit of one year from the said date would be eligible for refund. We find fort for our view from the decision of the Hon'ble Madras High Court in the case of GTN Engineering (I) Limited vs. CCE, Coimbatore read with the decision of the Hon’ble Gujarat High Court in the case of CCE. & Cus., Surat vs. Swagat Synthetics (2008 (7) TMI 208 - HIGH COURT GUJARAT ) and the Tribunal decision in the case of Apotex Research Pvt. Limited and Others vs. Commissioner of Customs, CCE & ST, Bangalore (2015 (3) TMI 346 - CESTAT BANGALORE).
A careful and harmonious reading of these decisions would reveal that CENVAT credit though not a duty, by making Section 11B applicable to refund of CENVAT credit, CENVAT credit has been equated with duty, by way of Notification No. 27/2012 dated 18.06.2012. Therefore, the time limit would be as prescribed in Section 11B. However, as per the decision of the Hon'ble Gujarat High Court the relevant date would be the date when the cause for refund has arisen, and this would obviously be when the export has taken place, as is also held by this Tribunal in the case of Apotex Research Pvt. Limited (supra) - we modify the orders of the lower authorities to the extent to hold that the refund claims filed within one year of export invoice would not be hit by the mischief of time-bar - Appeal disposed of.
-
2015 (12) TMI 1055 - PUNJAB AND HARYANA HIGH COURT
Demand of service tax - waiver of pre-deposit - No detailed reasons have been given on the issues regarding the jurisdiction of the adjudicating authority and whether the service provided by the petitioner was labile to service tax - Violation of principle of natural justice - Held that:- Impugned order has been passed by respondent No.3 without considering the overall material on record including the reply to the show cause notice submitted by the petitioner. No detailed reasons have been given on the issues regarding the jurisdiction of the adjudicating authority and whether the service provided by the petitioner was labile to service tax. Thus, there was violation of principles of natural justice - impugned order dated 8.4.2015 is hereby set aside with the direction to respondent No.3 to decide the matter afresh, after affording full opportunity to the petitioner and considering the reply filed by it against the original notice Annexure P- 3 before the Commissioner of Service Tax, New Delhi, by calling the complete record from there, within three months from the date of receipt of certified copy of this order - Appeal disposed of.
-
2015 (12) TMI 1013 - CESTAT BANGALORE
Waiver of pre deposit - Commercial or Industrial Construction service - Held that:- Appellant is a sub-contractor to M/s L & T Limited for construction of transport terminal for M/s Reliance Industries Ltd. Apart from appreciating the fact that definition of 'Commercial or Industrial Construction' does not include the service provided in respect of transport terminal, we also find that demands were raised against the main contractor i.e. M/s L & T Ltd. and were confirmed to the extent of about ₹ 28 crores. M/s L & T Ltd. filed an appeal along with stay petition which was disposed of vide stay order No. 1746/2009 dated 11.12.2009 directing them to deposit an amount of ₹ 6 crores. Inasmuch the present demand relates to a part of the main contract provided to M/s L & T Ltd. and inasmuch as the demand in respect of the entire contract stands raised against M/s L & T Ltd., the present demand of sub-contract get included in the main appellant. By appreciating the fact, we grant waiver of pre-deposit and allow the stay petition unconditionally. - Stay granted.
-
2015 (12) TMI 1012 - CESTAT BANGALORE
Waiver of pre deposit - C & F Agent service and CHA service - Business Support Service - Held that:- Appellant has made out a case in respect of this demand since the amount collected for the same service for two periods has been classified under two categories of service and in respect of CHA service, there is already a precedent decision in favour of the appellant. As regards the earlier period, we take note of the fact that the activity undertaken by the appellant is only organizing the transportation and in the absence of any evidence to show that no tax has been paid on the transportation activity, it may not be proper to levy tax on the appellant especially in the absence to show that appellant was a C & F agent of any of the customers in respect of these transactions. As regards the demand for 'Business Support Service', the appellant has only identified the transporter and mode of transportation for the customers and the department's view is that appellant has lent logistical support to the customer. The logistical support involves many types of activities and not mere transportation. From the facts as submitted during the discussions, what we see is that for levy of service tax there is much more than freight element involved. - Stay granted.
-
2015 (12) TMI 1011 - CESTAT NEW DELHI
Waiver of pre deposit - foreign expenses (misc. foreign exchange) on account of advertising services/ICC payment - Held that:- Appellant had not paid service tax on foreign exchange expenses amounting to ₹ 22,78,90,146/- shown as advertising services/ICC payment and that the appellant failed to provide satisfactory answer to the audit which raised the objections. The impugned order does not identify as to what was the taxable service provided. Though at one place it discusses the scope of sponsorship service, it nowhere discusses the scope of advertising agency service and as to how the impugned expenses were related to advertising agency service - it was incumbent upon the adjudicating authority to analyse as to how the impugned expenses related to services which fell in the scope of advertising agency service. No such analysis is noticed in the impugned order. It is not sustainable to presume that the impugned expenses related to advertising agency service (even if the appellant failed to give satisfactory reply in the opinion of the adjudicating authority) because the onus to sustain the allegation is on Revenue. There is not even a whisper in the Show Cause Notice also as to how the impugned foreign exchange expenses related to which taxable services. On the other hand the appellant on its own stated that the said expenses were incurred for purposes which were not taxable - appellant has made out a case for waiver of pre-deposit - Stay granted.
-
2015 (12) TMI 1010 - CESTAT BANGALORE
Refund claim - Information Technology Software Service(ITSS), Business Auxiliary Service(BAS) and Business Support Services(BSS) - nexus between the input and output services - Held that:- The bar imposed for availing credit would clearly show that the treatment of the service received as output service is only for the purpose of payment of service tax by the receiver and no other purpose. In view of the above, I find that the submissions by the appellants relating to calculation of turnover for the purpose of calculating admissible refund are correct. - As regards nexus in respect of different services, the learned counsel relied upon several decisions to submit that appellant is eligible. Since the matter has to be remanded in any case to the original authority, the Tribunal need not deal with the same but to leave it to the original authority - impugned orders are set aside and the matters are remanded to the original adjudicating authority - Decided in favour of assessee.
-
2015 (12) TMI 1009 - CESTAT MUMBAI
Classification - distribution of salary by bank - Banking and other Financial Services or business auxiliary service - Held that:- Lower authorities were in error in holding that appellant would fall under the category of commission agent and the amount received by them from the Government of Maharashtra through Zilha Parishad as service charges for disbursement of salaries of Govt. teachers cannot be considered as commission received, though it may be entered in the records of the appellant as commission received. - It may be seen from the reproduced definition the commission agent is defined as a person who while acting on behalf of other person undertakes the activity as mentioned herein above paras (a) to (d). None of the activities as indicated herein above is undertaken by the appellant as disbursement of salaries to the Govt. teachers would not fall in any of the activity, sale or purchase of goods or service. In our considered view, an amount received as a consideration for disbursement of salaries to the Govt. teachers on direction of Zillha Parishad can never be an activity covered under the definition of Business Auxiliary Service and more so it cannot be termed as an amount received by the appellant as commission agent. In view of the facts and circumstances of this case, we hold that the impugned order is unsustainable and liable to be set aside - Decided in favour of assessee.
-
2015 (12) TMI 1008 - CESTAT BANGALORE
Demand of service tax - Commercial or Industrial Construction/Works Contract service - Held that:- It is settled law that while exercising the powers of revision under Section 84 of the act, the Commissioner cannot review or revise the discretionary powers exercised by the original adjudicating authority under Section 80 of the act. He relies upon the decision of the Hon'ble High Court of Karnataka in the case of CCE, Bangalore II Vs. Sunitha Shetty [2004 (9) TMI 1 - KARNATAKA HIGH COURT] and in the case of CST, Bangalore Vs. Handimann Services Ltd. [2011 (9) TMI 690 - KARNATAKA HIGH COURT ] and the decision of this Tribunal in the case of Sneha Minerals Vs. CCE, Belgaum [2010 (7) TMI 387 - CESTAT, BANGALORE ]. After going through the said decisions, I find that in the case of Sneha Minerals, this Tribunal had taken a clear view that a revisionary authority under Section 84 cannot substitute his discretion for that of the original authority. Since the decision of this Tribunal was made by a division bench, the judicial discipline requires that it should be followed. - Decided in favour of assessee.
-
2015 (12) TMI 957 - CESTAT MUMBAI
Renting of immovable property services - Penalty u/s 76, 77 & 78 - Held that:- Sub-section 2 of Section 80 provide that notwithstanding anything contained under the provisions of Section 76, 77 & 78, no penalty shall be imposable on failure to pay the Service Tax payable, as on 6th day of March, 2012, for the taxable service referred to under Section 65(105)(zzzz) subject to the condition that amount of Service Tax along with interest is paid in full within the period of 6 months from the date on which the Finance Bill received the ascent of the President. The reason for denying the benefit of sub-Section 2 of Section 80 as stated in the Order-in-Original, was only for short payment of interest of ₹ 3,734/-. However, there is no finding as to any default and the same on examination of the Order-in-Original appears to be difference in calculation by the appellant assessee as well as the Revenue. - denial of benefit under the provisions of Section 80(2) is bad and against the spirit of law
Justification recorded by the Commissioner (Appeals) as to satisfaction of the service of the Order-in-Original is defective. Although the order was served on the son of the appellant, but the relevant fact is not on record as to whether the son is minor or major. Thus, the Commissioner (Appeals) have committed error in accepting the service of the Order-in-Original as proper. Moreover, the Order-in-Original itself is found to be bad and against the spirit of the Act and the Rules - Decided in favour of assessee.
-
2015 (12) TMI 956 - CESTAT BANGALORE
Imposition of penalty - Default in payment of service tax - appellant did not file ST-3 Returns - Held that:- Appellant got registered in July 2008 and visit of the officers tookplace on 29.1.2009. Even though the tax for January 2009 was liable to be paid only on 31.3.2009, the appellant paid the entire liability on 04.2.2009. In fact, some amount was paid in excess. This shows that the appellant had reasonable cause for non-payment which is financial difficulty and the appellant being new to the service tax provisions, I consider that a lenient view as regards the penalty is warranted. Accordingly, in my opinion, this is a fit case for invoking the provisions of Section 80 of the Finance Act to waive the penalty. Accordingly service tax amount paid with interest is confirmed as correctly paid and penalty imposed is waived by invoking the provisions of Section 80 of the Finance Act, 1994 - Decided in favour of assessee.
-
2015 (12) TMI 955 - CESTAT BANGALORE
Benefit of refund under Notification No. 05/2006, read with Rule 5 of Cenvat Credit Rules, 2004 - Advertising, Security, Manpower Recruitment and Supply service - Notification is restrictive since the word 'used' isservice used in providing output service - nexus between the input service and output service - Held that:- issues involved in the present appeal have been considered by this Tribunal in the case of Apotex Ltd. & Others - [2015 (3) TMI 346 - CESTAT BANGALORE]. In the case of Apotex Ltd. & Others , issue relating to nexus was considered and three services in question before us have been held to be admissible. Moreover, this Tribunal in the case of C. Cubed Solutions Pvt. Ltd. vs. C.C.E, Bangalore [2013 (7) TMI 347 - CESTAT BANGALORE] has considered the very same services and come to the conclusion that refund is admissible. This decision is squarely applicable to the facts of the present case also. As regards the Notification No. 05/2006, this notification was retrospectively amended and word "in” has been replaced by "in or in relation to". Therefore, this ground also cannot be sustained - Decided against Revenue.
-
2015 (12) TMI 954 - CESTAT BANGALORE
Denial of refund claim - information technology service - Software Technology Parks of India (STPI) scheme - rejection on the ground that appellant should have utilised the credit cannot be accepted - Held that:- Further the original authority had held that CENVAT credit of ₹ 35,445/- was not admissible and therefore not eligible for refund. There is no discussion about this in the order of the Commissioner (Appeals) and even in the appeal memorandum, no submissions have been made. On going through the table wherein eligibility has been considered, it is seen that in respect of three invoices credit has been disallowed on the ground that the invoices are in favour of Ness Technologies (India) Pvt. Ltd., Bangalore. There are several decisions taking a view that on the ground that the invoice is in the name of different person, credit cannot be denied. Rule 9(2) of CCR specifies the essential ingredients and also provides that if these are available, credit can be allowed by the concerned authority. While considering the refund claims afresh, the original authority may please consider this aspect. Two amounts of ₹ 809/- and ₹ 2971/- have been disallowed on the ground that the refund claim related to one month whereas invoices related to three months. - Decided in favour of Assessee.
-
2015 (12) TMI 953 - CESTAT BENGLALORE
Denial of refund claim - Unutilized CENVAT Credit - Various service - Held that:- all the services in dispute are covered by the decisions relied upon by the respondent and I find myself in agreement with it and therefore the appeal filed by the Revenue has no merit. - Decided against Revenue.
-
2015 (12) TMI 952 - CESTAT BANGALORE
Rectification of mistake - refund in terms of Section 65(105) of Central Excise Act, 1994 - Held that:- there is a mistake apparent from the records since it was not a point raised before us by the Revenue at all. Nevertheless, we consider that when an individual buyer purchases a flat/apartment in residential complex, what he is purchasing is an apartment or a flat and not a 'part of the complex'. If the Revenue's contention was correct, there was no need to add explanation in the definition in the year 2010 to bring the individual buyers of flat/apartment in residential complex into service tax net. We do not intend to discuss the issue in detail since it is a legal issue and was not argued before us and it can be challenged in appeal. There is no mistake apparent from the records - Rectification denied.
-
2015 (12) TMI 951 - CESTAT BANGALORE
Denial of refund claim - tax paid on input services used for providing service exported - Agreement was with Silicon Valley Bank (SVB) whereas the service has been provided to M/s. SVB Financial Group - nexus between input service and output service - Export of output service - Held that:- Management Consultancy service is nothing but study of Indian market and submission of a report to enable the customer to make a decision for making investment in India. - in the absence of any dispute that service was rendered to the recipient abroad as claimed by the appellant and receipt of consideration from recipient abroad, I do not consider that agreement plays such an important role that the refund claim itself has to be rejected. In any case, assignment clearly shows that the agreement has been transferred in favour of the present recipient.
Nexus issue has to be held in favour of the appellant in accordance with law. Nevertheless on merit also, the appellant is eligible for the refund, in my opinion, since services made in Order-in-Original are covered by precedent decisions of this Tribunal and the decisions of various High Courts in the country. Only doubt is in respect of Cafeteria service where this Tribunal has taken a view that if any amount has been collected from employees, admissible amount to be reduced proportionately. In any case, when the original authority considers the refund claim, Cenvat credit attributable to Cafeteria can be reduced proportionately. - impugned order is set aside and the matter is remanded to the original authority to consider the refund claim - Decided in favour of assessee.
-
2015 (12) TMI 950 - CESTAT NEW DELHI
Denial of Cenvat credit - Courier Service - consolidated Courier Bills of Entry - Denial of credit on the ground that it is post manufacturing activity - Held that:- Cenvat credit on the input services is available if the same is availed by assessee in the course of their business of manufacturing of excisable goods. Admittedly, the respondent has availed the service in the course of their business of manufacturing. Therefore, the ld. Commissioner (Appeals) has rightly allowed the Cenvat credit on courier service. - For repair of fax machine, security service and insurance of Omni Van, all these have been used by the respondent in the course of their business in manufacturing. Therefore, I hold that they are entitled to Cenvat credit - Decided against Revenue.
-
2015 (12) TMI 949 - CESTAT BANGALORE
Denial of refund claim - Unutilized CENVAT Credit - Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 5/2006-C.E. (N.T.) - whether the lower authorities were correct in rejecting the refund claim on the ground that the same was filed beyond the period of one year - Held that:- Tribunal has clearly held that the date of receipt of consideration is relevant for calculating relevant date and the limitation would be applicable as per the provisions of Section 11B and when these two principles are applied to the present case, the appellant would be eligible for refund in respect of the amounts received after 18-11-2007. Accordingly, the appeal is allowed to the extent of refund claim on the basis of receipt of payments to the services rendered from 18-11-2007 to 15-5-2008 which was not originally allowed by the Commissioner (Appeals). As regards decision in the case of mPortal [2011 (9) TMI 450 - KARNATAKA HIGH COURT ] of Hon’ble High Court relied upon, this was considered in Apotex case [2015 (3) TMI 346 - CESTAT BANGALORE] by the Tribunal - Decided in favour of assessee.
-
2015 (12) TMI 948 - CESTAT MUMBAI
Imposition of penalty - benefit of u/s 73(3) - Construction service - Held that:- Provisions of Section 73(3) of the Finance Act, 1994 as were in the statute during the relevant period when the show-cause notice dated 16.10.2009 issued needs to be considered; as appellant have discharged the entire service tax liability along with interest as has been ascertained by the Central Excise Officers i.e. audit party. In our view, provisions of Section 73(3) very clearly lays down that if service tax liability and the interest thereof is discharged on the direction of the Central Excise Officers, there is no need to issue show-cause notice. Adjudicating authority should have applied these provisions in the case in hand. We find a strong force in the contentions raised by the learned Counsel that they were under bonafide belief that the construction activity which was undertaken by the appellant was in respect of Government appointed statutory body hence tax liability may not arise. In our view the appellant could have entertained a bonafide belief that the activity undertaken by the appellant may not be covered under the tax net. In our considered view, this is a fit case for invoking provisions of Section 80 of the Finance Act, 1994. By invoking the said provisions of Section 80 of the Finance Act, 1994, we set aside the penalties imposed by the adjudicating authority under various sections - Appeal disposed of.
........
|
