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Service Tax - Case Laws
Showing 21 to 40 of 144 Records
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2016 (3) TMI 1003 - GUJARAT HIGH COURT
Seeking direction for refund and release of security deposit of ₹ 24,21,125/- - Amount of Service tax paid by Corporation on behalf of the petitioner - Petitioner under the contract appointed as sole agent for transportation of parcels to render other allied services and to operate courier services through the buses of the Corporation - Held that:- even if the aspect is apart that the petitioner has challenged communication dated 30.09.2013 after unexplained gap of three years, there is no gainsaying from the facts and the outlines of the controversy recorded above that the dispute between the parties is in the realm of the contractual obligations flowing from the service contract given to the petitioner by the Corporation. Thus, it is in the arena where the writ jurisdiction would not be attracted. Going into the case of the petitioner and the grievance raised by him would necessarily involve adjudicating upon the contractual terms and conditions and the mutual obligation between the parties arising therefrom with reference to entitlement of the Corporation to claim the amount from the security deposit as well as its justifiability or otherwise of the claim of the petitioner to seek refund/release of the said amount. Jurisdiction under Article 226 is not the appropriate remedy to be invoked for the grievance and the dispute of the above nature which stem from contract between the parties. Therefore, this petition is not entertainable and it does not qualify for any relief. - Petition dismissed
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2016 (3) TMI 1002 - GUJARAT HIGH COURT
Recovery of Service tax from service recipient - Petitioner contended that Corporation has accepted compromise formula so it now cannot recover any additional charges, either in the guise of service tax or escalation clause - Held that:- the offer letter does not make any mention of service tax and must therefore be seen out side of such an offer. What is concluded refers to the rental charges and not the service tax. The offer letter is silent and refers to rental payable by the petitioner to the Corporation. If other than the rental charges, there is any other tax liability upon the petitioner, he must separately pay the same. Under the circumstances, the Corporation must be allowed to recover such charges on the computation of unpaid rentals to be paid by the petitioner to the Corporation as per offer letter. Also the Corporation shall be entitled to recovery of service tax also with respect of zones No.1 and 2 and there shall be no fresh computation of liability. - Decided against the petitioner
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2016 (3) TMI 1001 - MADRAS HIGH COURT
Period of limitation - Condonation of delay of 223 days - Beyond the statutory time limit of three months and also beyond the condonable period of a further three months provided under Section 85 of the Finance Act, 1994 - Held that:- by following the decision of the Division Bench in the case of Albert & Company Pvt Ltd vs Commissioner of Service Tax, Chennai [2014 (3) TMI 655 - MADRAS HIGH COURT], the first respondent has rightly dismissed the appeal on the ground of limitation, since the first respondent does not have the power to condone the delay beyond the period of three months, as provided under Sec.85 of the Finance Act 1994. - Decided against the appellant
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2016 (3) TMI 999 - CESTAT MUMBAI
Imposition of penalty - Service Tax liability along with interest on the service rendered under the category of Installation & Commissioning Services - Held that:- the penalty imposed on the appellant is unwarranted as the Service Tax liability and interest thereof was paid by the appellant before the issuance of show-cause notice. Provisions of Section 73(3) of the Finance Act, 1994 would apply, which is settled by the judgments of Tribunal. Accordingly, the impugned order imposing the penalties is liable to be set aside.
Liability of Service tax from 10.09.2004 - Construction Services and Commercial & Industrial Services - Construction of new retail outlets and its related works, supplying all the materials involved for completion of the work under the contract and were to be paid as per rate agreed upon - Held that:- the job executed by the appellant would be a ‘works contract'. By relying on the judgment of Hon'ble Apex Court in the case of Commissioner, Central Excise & Customs Versus M/s Larsen & Toubro Ltd. and others [2015 (8) TMI 749 - SUPREME COURT], no Service Tax liability arises under any services for the work/job executed under Works Contract Services. Therefore, demand of Service Tax under ‘Commercial or Industrial Services' is liable to be set aside. Consequent penalties imposed are also set aside. - Appeal disposed of
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2016 (3) TMI 956 - MADRAS HIGH COURT
Recovery of dues said to be payable - Attachment of bank accounts on the ground that another entity has not paid the service tax - Seeking refrainment from taking any coercive recovery proceedings against the company - Engaged in the business of providing erection, commissioning and installations services and provided taxable services to some companies - Department issued a notice for attachment of the bank account of petitioner on the ground that another entity of which the petitioner company was the proprietor has not paid the service tax as demanded - Held that:- when the petitioner company is a separate and independent entity, the bank account of the petitioner company cannot be attached for the dues of the proprietorship concern, viz., M/s.Atchaya Enterprises. Therefore, the bank account of the petitioner company, which was attached by the respondents is liable to be raised and accordingly, the attachment in respect of the petitioner company stands raised. - Petition disposed of
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2016 (3) TMI 955 - MADRAS HIGH COURT
Legality of second show cause notice - Violation of Articles 14, 19(1)(g) and 30A of the Constitution of India and the orders of this court - Held that:- when the respondent is bound by the directions given by this Court and when this Court had directed the petitioner to submit their objections by treating the impugned proceedings as show cause notice and when this Court directed the respondent to consider the same and pass orders in accordance with law, after giving an opportunity of personal hearing to the petitioner Company, the issuance of the 2nd show cause notice, contrary to the direction of this Court is liable to be set aside. Also the respondent cannot violate the orders of this court on the guise of filing an application for modification. If the respondents are really aggrieved over the order passed by this Court in the earlier Writ Petition, they should have filed modification petition at the earliest point of time. As already stated, even the modification petition has not yet been numbered and brought before the Court for hearing. Therefore, the show cause notice is set aside. - Decided in favour of petitioner
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2016 (3) TMI 954 - CESTAT MUMBAI
Eligibility of refund for the period April, 2009 to September, 2009 - Service Tax paid on input services and used for providing output service which are exported under the category of “Information Technology Software Services” - Refund claim of ₹ 8,42,760/- allowed and refund claim of ₹ 8,03,031/- rejected as services were received prior to output service being notified but first appellate authority after following due process rejected the allowed claim also - Held that:- the first appellate authority was in error in rejecting or setting aside refund of ₹ 8,42,760/- sanctioned by the adjudicating authority. Against sanctioning of refund claim of such an amount there was no appeal from Revenue, hence the first appellate authority cannot suo moto set aside the order sanctioning refund of ₹ 8,42,760/-. As regards the refund claim of ₹ 8,03,031/-, the issue is no more res integra. By relying on the judgment of Hon'ble High Court in the case of mPortal India Wireless Solutions P. Ltd. Vs. C.S.T., Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], the appellant is eligible for the refund claim. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 953 - CESTAT MUMBAI
Classification of services provided for the period prior to 01.05.2006 and during the period 2005-06 to 2009-10 - Whether services of maintenance or repair i.e. operation of cooling water system, operation of raw water plant, operation of MP boilers & operation of IG plant & compressed Air system provided by the appellant comes under Management, Maintenance or Repairs - Held that:- the action of the respondent is management of immovable property and nothing has brought to our notice which indicates that the respondent were engaged for and doing “Management Maintenance or Repairs” services. Therefore, the services provided by the appellant do not come under Management, Maintenance or Repairs. - Decided against the revenue
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2016 (3) TMI 952 - CESTAT MUMBAI
Rejection of refund claims for the period 10.09.2004 to 31.03.2005 - Eligible for benefit of Notification No. 05/2006 dated 14.03.2006 - 100% Export Oriented Unit received inputs services on which credit was availed and utilised for manufacturing for goods that were exported - Entitled to avail CENVAT credit on such input services that they are not in a position to utilise the CENVAT credit for discharge of duty liability for the clearance made to home consumption - Held that:- the first appellate authority had sanctioned the refund claims holding categorically in favour of the appellant. It was not left to the adjudicating authority to revisit the issue of rejection of the three refund claims which have been sanctioned by the higher judicial authority. In the absence of any appeal against such an order, the adjudicating authority has not followed settled principle of judicial discipline; and has entered further voyage to reject the refund claim by issuance another show-cause notice, which is beyond his jurisdiction.
Both the lower authorities have not followed the judicial discipline while rejecting the refund claim which were already sanctioned by the first appellate authority.Therefore, the impugned order to that extent is unsustainable liable to be set aside. Also, in the three refund claims, the findings that the benefit of Notification dated 14.03.2006 is not applicable for the period prior to Notification dated 14.03.2006 are not sustainable followed by the judgment of Tribunal in the case of Fibres & Fabrics International Pvt. Ltd. Vs. Commissioner of Commissioner (Appeals), Bangalore [2009 (2) TMI 110 - CESTAT Bangalore]. Therefore, refund claims which were rejected by both the lower authorities are to be allowed. - Decided in favour of appellant
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2016 (3) TMI 951 - CESTAT MUMBAI
Imposition of penalty - Section 76, 77 and 78 of the Finance Act, 1994 - Management Consultancy Service - Appellant rendered the services of advice and consultancy for various individuals and independent organizations with regard to the entire operation of the hotel in order to bring those hotels to the level of “Taj” - Entire Service tax along with interest paid before issuance of show-cause notice - Held that:- appellant could have entertained bonafide believe that the advice, consultancy as given by them may not be covered under ‘Management Consultancy Services' and they are rendering the business of the various hotels in the same manner from 1988, therefore, no Service Tax liability arises. So, the appellant has made out a justifiable case for setting aside the penalties imposed. Therefore, the Service Tax liability on ‘Management Consultancy Services' was in nascent stage when the Audit Party brought to the knowledge of appellant that Service Tax liability arises, which was discharged immediately. So, by invoking the provision of Section 80 ibid, penalties imposed under Section 76, 77 and 78 are set aside. - Decided in favour of appellant
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2016 (3) TMI 905 - CESTAT NEW DELHI
Waiver of pre-deposit - Classification of service - Transport of passengers on domestic routes through its helicopters - Whether comes within the ambit of Section 65(105)(zzzo) or within supply of tangible goods for use (STGU), Section 65(105) (zzzzj) of the Act - Held that:- since there is no privity of contract between the appellant and the passengers who travel on appellant's helicopters and the contracts were invariably between the appellant and the charter parties who hired appellant’s helicopters for the purpose of transporting passengers. Therefore, the services clearly fall within the ambit of STGU.
Invokation of Extended Period of Limitation - Proviso to Section 73 of the Act - Held that:- As on 16.5.2008, the date with effect from which STGU was introduced as a taxable service, transportation of passengers by air on domestic routes was not a taxable service. So the petitioner cannot therefore gainfully contend that it entertained a bona fide doubt whether services provided by it fall within STGU. Therefore, invokation of extended period of limitation sustains - stay denied
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2016 (3) TMI 904 - CESTAT BANGALORE
Waiver of pre-deposit - Short payment of Service tax - Rendered services of manpower recruitment or supply agency by virtue of reverse charge mechanism - Whether the amount paid by the appellant to foreign companies towards social security services and on behalf of the employees who are seconded to India for functioning as the employees of the appellant is covered under manpower recruitment or supply agency services or not - Held that:- by relying on the judgment of Hon'ble High Court of Allahabad in the case of Computer Sciences Corporation India Pvt Ltd Vs CST Noida [2014 (4) TMI 252 - CESTAT NEW DELHI], in a situation like this, services will not fall under the category of manpower recruitment or supply agency services. Therefore, the appellant has made out prima facie strong case for wavier of the service tax liability under this category. - Matter disposed of
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2016 (3) TMI 903 - CESTAT MUMBAI
Quantification of Service tax amount - Service tax on GTA services - Appellant contended that amount of service tax ₹ 38,694/- has already been paid by transporter, consignor and supplier of building material certified by the CA, so, cannot be demanded once again - Held that:- in the impugned order the Adjudicating authority has brushed aside the submission of the appellant only on the ground that no documentary evidence was produced. Once the appellant have claimed that certain amount of service tax has already been paid and C.A. also certified the same, if the Ld. Adjudicating authority is not satisfied, he could have very well asked for the additional evidence which he failed to do so. Therefore, the Adjudicating authority is directed to re-verify the submission, documents and C.A. certificate provided or to be provided by the appellant and arrive at correct liability of service tax in respect of GTA service.
Demand of Service tax - Management, Maintenance or Repair services of building collected from Flat owner - Held that:- the collection of such maintenance charges is under the statutory provision of MOFA, 1963. According to which it is mandatory on the part of the builder that before handing over the building to the society the builder that before handing over the building to the society the builder has to maintain the building for which the builder engaged various service providers and payment made to such service providers was taken as re-imbursement from the flat owner. In this fact, the appellant is not liable for service tax as held in the case of Kumar Beheray Rathi vs. C.Ex, Pune-3 [2013 (12) TMI 269 - CESTAT MUMBAI], therefore, the service tax demand on Management, Maintenance or Repair service is clearly unsustainable.
Imposition of penalty - Section 78 of the Finance Act, 1994 - Service tax on GTA service - Held that:- the appellant, after knowing about non payment of service tax on GTA, promptly paid the service tax alongwith interest which is much before the issuance of show cause notice. Therefore, penalty is not imposable in terms of section 73(3) of Finance Act, 1994, according to which if the amount of service tax alongwith interest is paid then no show cause notice should have been issued. Also the appellant have made out a case of reasonable cause, accordingly they are also not liable for penalty under Section 80. Therefore, the penalty related to service tax on GTA is waived off. - Appeal disposed of
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2016 (3) TMI 902 - CESTAT MUMBAI
Seeking setting aside of penalty imposed under Section 76, 77 and 78 of the Finance Act, 1994 - Invokation of Section 80 of the Finance Act, 1994 - Evasion of Service tax liability on the amount collected as licence fee - Hiring out the shops if falling under the category of “Renting of Immovable Property” - Appellant discharged its entire service tax liability and also interest thereof during the pendency of proceedings - Held that:- the bonafide impression carried by the appellant herein cannot be called in doubt that being an autonomous body they are exempted from payment of service tax and hence did not obtain registration. Therefore, the appellant had made out a justifiable cause for non-discharge of service tax liability during the period in question, accordingly by invoking the provisions of Section 80 of the Finance Act, 1994, the penalties imposed are set aside. - Decided in favour of appellant
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2016 (3) TMI 901 - CESTAT CHENNAI
Eligibility for refund of accumulated CENVAT credit - Rule 5 of the CENVAT Credit Rules, 2004 prior to their registration - Whether in absence of any condition in CENVAT Credit Rules, 2004 to the effect that registration under law is mandatory, credit accumulated is refundable or not - Held that:- there was no taxability of any service provided by respondent prior to registration. Accordingly, input credit was not possible to be utilized for which that was accumulated. Also credits were accumulated prior to registration. Therefore, respondents are not eligible for refund of accumulated Cenvat credit. - Decided in favour of department
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2016 (3) TMI 900 - CESTAT MUMBAI
Demand of Service tax along with interest on the unpaid portion - Rendering of ‘business support services' and ‘club or association service - Appellant is in receipt of various amounts from its members and other persons for use of sporting, recreational and infrastructural facilities of the club in addition to entrance fees and periodical subscription for the period from April 2005 to September 2009 and sought to be taxed as ‘club or association service' as per section 65(105) (zzze) of Finance Act, 1994- Held that:- in view of the various decisions of Hon'ble Supreme Court, Hon'ble High Court and Tribunal, the demand of tax on receipts from members cannot sustain. Tax under Finance Act, 1994 is not on the entity or on amounts receipts by the entity - it is on specified taxable services and hence taxability can arise only to the extent that each transaction between the member and the club can meet the test of conformity with section 65(105)(zzze) ibid. Therefore, without ascertainment of the receipts as quid pro quo for an identified service, demand of tax on amount transferred from an individual to an entity merely because the individual happens to be a member, on the one hand, and the recipient happens to be club/association on the other, does not meet the test of having rendered taxable service. Also, interest, if any, on delayed payment shall be determined and paid. Penalty under Section 78 ibid is also modified to the amount of tax that is confirmed and penalty under Section 77 ibid is upheld. - Matter disposed of
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2016 (3) TMI 899 - CESTAT MUMBAI
Demand of Service tax - Erection, installation and commissioning service - Appellant contracted with M/s MSETCL, which is work to be executed on turnkey basis in accordance with the composite contract comprising supply of components as well as labour - Held that:- turnkey contracts also include supply of goods necessary for execution of the projects. It is a normal practice in such a contract to provide a detailed breakup, with invoices raised to mirror the contents of the payments in the contract, for regular payments to be made to the contractor. Such a break up is a necessary input for management of the finance related to the work itself, especially when a work is executed over a longer period of time. It does not allow for vivisecting a contract.
Vide Notification 45/10-ST, all taxable services rendered 'in relation to' transmission and distribution of electricity have been exempted from the purview of service tax. The expression 'relating to' is very wide in its amplitude and scope. Therefore, all taxable services rendered in relation to transmission/distribution of electricity would be eligible for the benefit of exemption under the said Notification for the period prior to 27.02.2010. Also in exercise of the powers conferred by section 11C of the Central Excise Act, 1944 (1 of 1944), read with section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period. Therefore, the terms of the contract being very clear as an indivisible one, vivisection for the purpose of levying service tax on ‘erection, installation and commissioning service' is incorrect. Since the project is in relation to transmission and distribution of electricity up to 26th February 2010, the demand for service tax is not correct in law. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 857 - GUJARAT HIGH COURT
Recovery of dues - attachment of bank accounts - recovery from third parties - Seeking withdrawal of notices dated 27th March, 2015 as well as dated 5th October, 2015 for freezing the bank accounts and all their facilities and direction to other clients of the petitioner not to pay any amount due to the petitioner but to directly pay the same to the Department on behalf of the petitioner in view of the dues - Petitioner deposited 50% of the amount directed by the Tribunal and 50% not deposited because of financial crisis - Held that:- Subject to M/s. Bridge & Roof Co. (India) Ltd. agreeing that an amount of ₹ 52 lakhs is outstanding and payable to the petitioner and being willing to pay such amount, the respondents shall directly recover such amount from M/s. Bridge & Roof Co. (India) Ltd. towards the dues of the petitioner. Upon such amount being recovered, the impugned notice dated 27th March, 2015 as well as the notice dated 5th October, 2015 shall forthwith be withdrawn and the respondent No.4 – Bank shall forthwith release the attachment on the bank accounts of the petitioner qua the service tax dues. The petitioner shall deposit the balance amount, as may be agreed between the parties upon verification of the amount of interest, with the respondents within a period of two months from today. - Petition disposed of
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2016 (3) TMI 856 - CESTAT MUMBAI
Liability of Service tax - Rendering of Business auxiliary service - Amounts received as 'commission agent' subject to a minimum of ₹ 1,10,000/- per month falls within the definition of 'business auxiliary service' in section 65 (19) of Finance Act, 1994 - Held that:- the claim of the appellant for immunity from taxability under section 65(105) (zzb) is not tenable. Therefore, the impugned order is modified by recomputing the tax liability along with appropriate interest.
Seeking setting aside of penalty imposed under Section 78 - Invokation of Section 80 - Whether the appellant is a 'commercial concern' - Appellant contended that notwithstanding the title of the agreement, it had merely rented out space to M/s Style Spa and that the building space was owned by the kartha and co-parceners of the Hindu Undivided Family (HUF) as an asset which could not be considered as a commercial activity - Held that:- HUFs can also be commercial concerns is no longer res integra as decided by Tribunal in the case of re Infinity Credit. Therefore, for reasonableness of doubt that individuals may not be 'commercial concerns', section 80 of Finance Act, 1994 be invoked and penalty imposed under Section 78 is set aside.
Cum-tax computation - Rental of immovable property - Appellant is the custodian of the goods intended for sale - Held that:- the remuneration that was to be made over to the appellant is based on quantum of sale. Guarantee of minimum payment of ₹ 1,10,000/- per mensem does not detract from the connection with sale. This is squarely within the ambit of 'commission agency' which became taxable for non-agricultural produce in the hands of provider of 'business auxiliary service' vide notification of 9 th July 2004. Appellant is eligible for exemption from February to July 2004. It is observed that, during the period of dispute, appellant was in receipt of only the minimum guaranteed amount of ₹ 1,10,000/-. The agreement also makes it clear that M/s Style Spa is responsible for discharge of tax liability. In view of these facts, the plea of the appellant for 'cum-tax' computation is justified. - Appeal disposed of
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2016 (3) TMI 855 - CESTAT MUMBAI
Demand of Service tax at the rate of 6%/8% of the value of exempted goods - Rule 6(3)(i) of Cenvat Credit Rules, 2004 - Held that:- the appellant reversed the entire credit on the common input service along with interest following the option available under Rule 6(3)(ii) of the Cenvat Credit Rules. As per Sub-Rule (3A) of Rule 6(3), the Cenvat Credit required to be reversed is as per the formula prescribed. Here, as the appellant have reversed the entire credit availed on common input service, the demand of 6%/8% of the value of exempted goods is not sustainable. Also, on reversal of Cenvat Credit attributed to the exempted services along with interest, the demand is not sustainable. - Decided in favour of appellant with consequential relief
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