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Service Tax - Case Laws
Showing 1 to 20 of 144 Records
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2016 (3) TMI 1446
Change in classification of services provided - harvesting and transportation of sugarcane from field to factory - manpower recruitment or supply agency service or business auxiliary service? - HELD THAT:- To be heard along with Central Excise Appeal No. 305 of 2014 & Central Excise Appeal No. 200 of 2014.
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2016 (3) TMI 1314
Demand of service tax - Computer Network services - Online Information services - technical consultancy charges recovered by them for software development - Held that:- The said services became taxable w.e.f. 15-05-2008 and for the period being prior to the same, no demand can be sustained - the period in the present case is prior to 15-05-2008.
Appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1252
CENVAT credit - GTA services - only dispute in this case is that the appellant was entitled to take Cenvat credit of 25% of the gross amount charged by the goods transport agency and not on the entire amount of service tax paid by the appellant - Held that: - Since the fact is not under dispute that the service tax paid by the appellant was taken as Cenvat credit, denial of such credit is not in confirmity with Rule 3 of the Cenvat Credit Rules, 2004, which mandates that service tax paid on input service received by the manufacturer of final product is eligible for Cenvat credit - denial of credit unjustified - appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1251
CENVAT credit - duty paying invoices - appellant had taken Credit on the basis of Advice of Transfer Debit issued by the Central Telephone Store Department of the appellant, supported by Xerox copies of the original invoices - Held that: - the issue is no more res-integra, and has been decided in the case of Bharat Sanchar Nigam Ltd. Erode Versus Commissioner of Central Excise, Salem [2013 (12) TMI 742 - CESTAT CHENNAI], where it was held that considering the commercial practice which was necessary for efficient procuring the equipment in question, this procedural lapse cannot be considered as a reason to deny Cenvat credit involved.
The re-conciliation is not done before the Court below - the adjudicating authority directed to pass a fresh order by following the decision of this Tribunal in the case of M/s B. S. N. L. Vs. CCE - appeal allowed by way of remand.
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2016 (3) TMI 1248
Waiver of penalty - Held that: - penalty was waived by learned Commissioner (Appeals) on the ground that he did not find any malafide of the respective respondents and CBE & C guide lines do not intend to penalise public authorities - it was also noted that no Government body would be making any fraud or collusion to defraud Revenue - When such recorded finding is apparent from record, in absence of any evidence to controvert the same, no interference to the order of Commissioner (Appeals) is called for - appeal dismissed - decided against Revenue.
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2016 (3) TMI 1192
Penalty u/s 78 of FA, 1994 - Work Contract Service - invocation of section 80 - Held that: - the entire demand as per SCN, except for a nominal interest of ₹ 3,725.30 was paid by respondent before issuance of SCN - The fact that respondent is an illiterate civil contractor was considered by the original authority and waived penalty u/s 78 while adjudicating the SCN of subsequent period - mere non-declaration cannot be considered as suppression of facts - Commissioner (Appeals) has rightly waived the penalty imposed u/s 78 of FA, 1994, by invoking section 80 - appeal dismissed - decided against Revenue.
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2016 (3) TMI 1179
Refund claim - terminal handling charges - bill of lading charges - origin haulage charges - repo charges - rejection on the ground that the services are not covered under the category of port services - whether debit notes can be considered to be proper invoices? - Held that: - the refund claims which are otherwise admissible to the assessee in terms of said N/N. 41/07, cannot be rejected on the grounds raised by the Revenue - refund allowed - appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1148
Refund claim - appellant availing Drawback claim - appellant was also availing inputs service credit on services namely CHA or Courier services - As the Drawback Rules (ibid) did not deal input service credit, therefore, the appellant filed refund claims of input services credit remained un-utilisation in their Cenvat credit account under Rule 5 of the Cenvat Credit Rules, 2004 for the period 1-6-2006 to 15-7-2006 - Held that: - I find that till 13-7-2006 while calculating the amount of drawback, the component of duty paid on excisable goods was considered, no element of input service credit was taken into consideration while calculating drawback - In these circumstances, refund claim cannot be denied on the ground that the appellant is claiming drawback, therefore, they are not entitled to claim refund of input service credit. Therefore, I hold that the appellants are entitled to claim refund of input service credit lying unutilized for the period up to 13-7-2006 under Rule 5 of the Cenvat Credit Rules, 2004.
The other ground of rejection of refund claim of input service credit was that, there is no prescribed procedure for filing the refund claim during the relevant period - Held that: - the substantive benefit under Rule 5 of the Cenvat Credit Rules, 2004 cannot be denied to the appellant in the absence of the procedure prescribed for filing the refund claim.
CENVAT credit - CHA and Courier Service - denial on the ground that they are availed beyond the place of removal of the goods - Held that: - the appellant is entitled to avail Cenvat credit on input service credit namely CHA and Courier Services which have been availed by the appellant in the course of their business to export of goods, further, I find that in the case of ABB Ltd.[2011 (3) TMI 248 - KARNATAKA HIGH COURT], it was held by the Hon’ble High Court of Karnataka that for the period prior to 1-4-2008, the assessee entitled to avail Cenvat credit on the service tax paid on the services beyond the place of the removal of goods.
Appeal allowed - decided in favor of appellant.
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2016 (3) TMI 1140
False VCES declaration - rejection due to difference of taxable value taken by the department and as claimed by the appellant for calculation of service tax dues - demand - Held that: - I find that as per the submissions made by the Ld. Advocate as reproduced above and the findings of the Ld. Commissioner there are variations in the stand taken by both sides. In my view, the appellant should be given an opportunity to explain their case regarding quantification as observed by the adjudicating authority viz-a-viz claimed by the appellant. I therefore of the view that matter needs to be remanded to the original adjudicating authority - appeal allowed by way of remand.
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2016 (3) TMI 1132
CENVAT credit - non-disclosure of availing of credit in ST-3 returns - Held that: - I hold that inputs credit availed on catering service is allowable as the same is directly utilised in the business of the appellant of banking and other financial services. It goes without saying that satisfied customers, will lead to increased business and development. So far the Cenvat credit is concerned for April to September 2007, the appellant have filed in the paper book details of the invoices with date etc. amount of service tax paid etc. is reflected. I hold that the appellant will be entitled to Cenvat credit for the period in question. I remand to the adjudicating authority for the limited purpose to verify the amount of Cenvat credit and allow the credit accordingly. Upon such hold that extended period of limitation is not invocable in the facts and circumstances - appeal allowed - decided in favor of appellant-assessee.
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2016 (3) TMI 1117
Cenvat credit - construction service, erection, commissioning and installation service, works Contract service, consultancy engineer's service, business auxiliary services and business support services - services used for erection of BTS Towers - Held that:- services of construction and works contract are excluded from the definition of input service, therefore the Cenvat Credit on the said two services are disallowed. As regard other services there is a dispute between the Ld. Commissioner and the appellant that some of the services like design service, technical testing and analysis service are in fact business auxiliary service and business support service, which needs verification by the adjudicating authority. However, irrespective of difference of service whether it is design service, technical testing and analysis service or business auxiliary service and business support service, the same for not falling under the exclusion category, therefore the credit cannot be denied on these services. Similarly, the services like erection, commissioning and installation and consultancy engineer’s service are also not excluded in the amended definition of input service. Therefore in my considered view, except the construction service and works contract service the credit on other services are admissible.
Imposition of penalty - Held that:- the issue relates to the interpretation of definition of input service and on most of the services credit is admissible and the credit is inadmissible in respect of construction and works contract service, only due to the reason that there is exclusion w.e.f.1.4.2011. In this facts and circumstances, I do not see any malafide intention on the part of the appellant. Therefore penalty of ₹ 25,000/- imposed by the lower authorities under Rule 25 is hereby set aside. - Decided partly in favour of appellant
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2016 (3) TMI 1108
Grant of one opportunity of being heard - Waiver of demand – Date of hearing fixed by the Tribunal – preceding the day of hearing, communication by the appellant that he was not well – Tribunal passed the order on the fixed date in absence of appellant – Held that: - the appellant filed the letter for his non-appearance. Therefore, one opportunity to be granted to the appellant and Tribunal to fix the date for hearing – appeal disposed off – decided in favor of appellant.
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2016 (3) TMI 1103
Levy of penalty - waiver u/s 80 - service tax liability was discharged before issuance of SCN – revere charge mechanism – Held that: - As regards interest, in the absence of any contest before the lower authorities on the interest liability the same cannot be contested before the higher judicial forum. Interest liability arises and correctly discharged by the appellant.
As regards penalty, appellant having discharged the entire service tax liability and the interest thereof before issuance of the show cause notice which would mean that the provisions of Section 73(3) of the Finance Act, 1994 would apply in its full force, which mandates for non-issuance of show cause notice to the assessee once the service tax liability and the interest thereof is discharged – penalty not imposed – decided partly in favor of appellant.
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2016 (3) TMI 1082
Legal services - levy of service tax on senior Advocates - Notification No.9/2016-ST, Notification No.18/2016-ST and Notification No.19/2016-ST - Gujarat High Court granted the ad-interim relief as per the paragraph no.19(C) of the application.
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2016 (3) TMI 1053
Liability of Service tax - Banking and Financial Service during the period September, 2002 to August, 2006 - Credit cards are used by appellant to customers, who use the same various outlets and the said payments are made by the bank to the outlet after retaining the small amount - Held that:- by following the ratio as settled by the larger bank in the case of Standard Chartered Bank Vs CST [2015 (8) TMI 686 - CESTAT DELHI (LB)], the service tax liability for the activity indicated in these appeals of the assessee is not taxable. - Decided in favour of appellant
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2016 (3) TMI 1052
Allowability - Claim for refund of the tax paid as service tax on the renting of immovable property to them during the period 1.04.2008 to 31.03.2009 - Service tax paid on the premises rendered by them from the various landlords - Held that:- appeals of the appellant herein are devoid of merits as by notification no. 23/2007-ST dated 22.05.2007, the government of India section 125 to the Finance Act, 2007, services rendered under the category of renting of immovable property for the use of in course of furtherance of business and consumers was retrospectively taxed with effect from 1.6.2007. A challenge to constitutional validity of the same was dismissed by the Hon'ble High Court of Bombay in the case of Retailers Association of India [2011 (8) TMI 58 - BOMBAY HIGH COURT]. Therefore, in view of the above the appellant is not allowed to claim refund.- Decided against the appellant
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2016 (3) TMI 1051
Waiver of demand - Business Support Services - Space booking for ocean freight - Appellant contended that excess amount if any recovered from the exporters as ocean freight cannot be treated as providing of Business support services - Held that:- by relying on the various decisions of co-ordinate bench, appellant has made out a prima facie case for complete waiver of demands with respect to taxability on ocean freight for exports.
Admissibility of CENVAT Credit - Appellant has already deposited an amount of ₹ 25.00 Lakh through challan and ₹ 7.72 by way of reversal of credit - Held that:- applicant has already paid an amount of ₹ 32.72 Lakh through challan and reversal of CENVAT Credit regarding demand of CENVAT Credit, and is also agitating the issues on merits. Therefore, such deposit shall be considered sufficient for granting stay. - Stay granted
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2016 (3) TMI 1050
Eligibility for exemption from Service tax in terms of Notification No.13/2003-ST dated 20.06.2003 - Notification exempts from payment of Service Tax the “Business auxiliary services” provided by a “commission agent” - Engaged in marketing and selling of Indian Made Foreign Liquor (IMFL) for BDA LTD. - Consideration which the appellant was to receive for such services was linked to the quantum of goods actually sold - Commissioner denied the benefit of exemption on the ground that the activities performed by the appellant were much wider than that of a 'commission agent' as defined in the Notification - Held that:- the twin requirement of the definition of 'commission agent' viz., that the agent should cause sale or purchase of goods on behalf of another person and that the consideration should be linked to the quantum of such sale or purchase, stand fully satisfied. In view of the specific definition of the expression commission agent in the Notification, we are not inclined to look at the common parlance meaning of the said expression or its meaning in the VAT Laws. A letter dated 23.03.2000 addressed to the Appellant by BDA Ltd., shows that the appellant's service charges were fixed with reference to the quantum of products marketed by it. The debit advice annexed to the appeal shows that the consideration received was always linked to the quantum of sales effected. This evidence seems to lend support to the contentions of the appellant and in the absence of any specific finding in the impugned order or any allegation to the contrary in the Show Cause Notice and also during the period relevant to this appeal, there is no evidence to show that the appellant had indeed carried out any activity other than the activity of selling goods belonging to BDA Ltd. On this factual ground also, the appellant is entitled to succeed. Even if the appellant has rendered services relating to procurement of goods on behalf of BDA Ltd., or helped in collection or recovery of payments, it would remain entitled to the benefit of exemption. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 1049
Application of time-limit of Section 11B of Service Tax Act, 1994 - Rejection of refund claim of Cenvat Credit lying unutilized during the July to September, 2012 - Rule 5 of Cenvat Credit rules 2004 (CCR) read with notification no. 27/2012-CE (NT) - Export of "Consulting Engineering Services" to their customers situated outside India - Appellant exported entire services and in order to render said services taken the credit of service tax paid on input services and eligible for refund of the Cenvat Credit which remains unutilized - Held that:- as regards the application of time limit, of section 11B to the entire issue, the question of application of section 11B would not arise, as in the case, the refund of amount of Cenvat Credit availed on various input services is clearly covered by rule 5 of CCR, which lays down the time limit for filing of the refund claim i.e. within one year from the end of quarter during which services were exported. Therefore, the finding recorded by the first appellate authority on this point is correct and does not require any in curtains. - Decided against the revenue
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2016 (3) TMI 1004
Seeking release of payments due to the petitioner along with suitable interest - Execution of the works in favour of the first respondent to the tune of ₹ 67 lakhs - Services carrying on are cable laying works and rehabilitation of external plant to various parties - Held that:- In the absence of any averment stated in the affidavit, filed in support of the writ petition that the petitioner got the leave from BIFR for filing the writ petition for claiming a sum of ₹ 67,00,000/-, the writ petition cannot be maintained at this stage. That apart, when the contract is between the first respondent and the petitioner, who is a sub contractor of the first respondent, the claim made by the petitioner to the tune of ₹ 67,00,000/- cannot be made in the writ petition. the contract was only between the first respondent and the BSNL and the petitioner is not a party to the said contract. Further, there is no clause in the contract between the first respondent and the petitioner with regard to the payment of Service Tax by the petitioner. In such circumstances, in the absence of any contract between the petitioner and the first respondent with regard to the payment of service tax and the reimbursement of the same, the said issue cannot be gone into in the writ petition. Therefore, the claim made by the petitioner can be decided only by a competent civil Court and not under Article 226 of the Constitution of India. - Decided against the petitioner
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