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Service Tax - Case Laws
Showing 41 to 60 of 144 Records
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2016 (3) TMI 854 - CESTAT MUMBAI
Availment of Cenvat credit - Whether the appellant had availed the Cenvat Credit of input service of construction services and other services is correct or otherwise - Appellant constructed various malls and rented the same to various parties and discharge of service tax on rent received. Also availed the Cenvat Credit of input services which are used for construction and maintenance of the various malls - by taking the view of decision taken by Tribunal in the case of Navaratna S.G. Highway Properties (P) Ltd. [2012 (7) TMI 316 - CESTAT, AHMEDABAD] and various other judgments, the appellant can avail the Cenvat Credit of input service of construction services and other services. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 853 - CESTAT MUMBAI
Waiver of penalty imposed under Section 76 of the Finance Act, 1994 - Show cause notice was served under Section 73(1) before the enactment of Finance Bill 2015 but no order has been passed before the date of enactment - Appellant discharged the entire service tax along with interest prior to issuance of show cause notice - Held that:- the provision of amended Section 76 shall be applicable. As per amended Section 76 w.e.f. 14.5.2015, if the Service Tax and interest is paid within 30 days from the date of service of notice under Sub-section (1) of Section 73 of the Act, no penalty shall be payable and proceedings in respect of such service tax and interest shall be deemed to have been concluded. Here, the show cause notice was issued on 16.10.2014 and the adjudication order was passed on 18.8.2015 and the appellant have discharged the entire service tax along with interest prior to issuance of show cause notice as clearly appearing in the show cause notice itself. Therefore, in view of the aforesaid amended provision in terms of Section 78B(1) (b) read with Section 76 (1) proviso clause (i), the appellant is not liable to penalty under Section 76 of the Act. Therefore, the penalty imposed under Section 76 is waived. - Decided in favour of appellant
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2016 (3) TMI 852 - CESTAT BANGALORE
Imposition of penalties under Section 78 & 77(1a) and 77(2) of the Finance Act, 1994 - Taxable services of 'Erection, Commissioning or Installation' service received from outside India - No intention of assessee for non-payment of service tax as when pointed out that there was liability on them to pay service tax for the above services, they immediately made the payment along with interest - Held that :- the provisions of Section 73(3) of the Finance Act, 1994 say that when the liability of tax has been paid by an assessee before service of notice on him under Section 73(1) and when the said assessee has informed the department of such payment in writing, the Department was not to serve any notice under Section 73(1). However it is right that Section 73(4) also makes it clear that wherever there has been such non-payment by reason of fraud, or collusion or willful misstatement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, an assessee cannot take the benefit of provisions of Section 73(3) of Finance Act 1994. But the Department has completely failed to prove the same. Also it was entitled to take CENVAT credit for payment of service tax, therefore, the intention to evade payment of service tax do not arise and the penalties imposed are set aside. - Decided in favour of assessee
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2016 (3) TMI 832 - PATNA HIGH COURT
Service tax liability - Construction of academic complex of Indian Institute of Technology (IIT) - Held that:- the Indian Institute of Technology, Bihta, Patna, whose academic block was to be constructed by the petitioner, was set up by an Act of Parliament, i.e., Indian Institutes of Technology Act, 1961 (59 of 1961) as an institute of national importance under Article 248 of the Constitution of India read with 7th Schedule List I. As per the definition of Governmental Authority as amended on 30th January 2014, an authority or board or any other body set up by an Act of Parliament or State Legislature is a Governmental Authority. Therefore, the Notification dated 20th June, 2012, exempts the activity of construction undertaken by the petitioner from payment of service tax. Thus, the service tax paid either by the petitioner or respondent No.4 and collected by respondent No.1, cannot be levied or collected as it is not chargeable levy and
Entitlement for refund of Service tax - Undue enrichment - Held that:- the payment of service tax has not been made by the numerous consumers and collected by the petitioner. It is paid by the petitioner alone. The petitioner is entitled for the reimbursement of the amount of service tax by respondent No. 4 in terms of the letter of award of contract. Such payment of service tax by the petitioner is not indirect collection of taxes but the direct payment by the petitioner. Therefore, it is not a case of undue enrichment. Thus, since the levy as collection of service tax paid by the petitioner or respondent No.4, has not been found to be justified, therefore, the respondent No. 1 shall refund the amount of the service tax deposited either to the petitioner or respondent No. 4, as the case may be, expeditiously. - Decided in favour of petitioner
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2016 (3) TMI 811 - CESTAT MUMBAI
Liability of Service tax on TDS amount absorbed by the assessee on foreign remittance - Reverse charge as per provision of Section 66(A) of the Finance Act, 1994 - Reverse Charge Mechanism - Amount paid to foreign architect as consultancy charges under Technical Consultancy Services - Department contended that appellant having discharged the Income Tax liability on the amount so paid, Service Tax liability arises on the Income Tax amount deducted as TDS and paid to Government of India - Held that:- appellant had discharged the consideration as raised in the invoice/bill but there is nothing on record that indicates that the appellant had recovered that amount of Income Tax paid by them on such amount paid to the service provider from the outside India and any other material to hold that this amount is paid is consideration for services received from service provider. As per Section 67 with Rule 7 of Service Tax Valuation Rules, the Service Tax liability needs to be discharged on amounts which have been billed by the service provider. Therefore, appellant is not liable to pay service tax. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 810 - CESTAT MUMBAI
Sharing of resources and cost / expenses with the group companies - Business Support Services provided for the period 2006-07 and 2007-08 - Section 65(105)(zzzq) of the Finance Act, 1994 - Appellant providing services by way of accounting and processing of certain transaction and certain operational assistance as required by the Participating Group companies under an agreement between the appellant and the group companies - Held that:- the appellant is merely acting as a manager/trustee to incur expenses on behalf of the Participating Group Companies. The object of entering into such cost sharing arrangement is to reduce the cost of operation of the Participating Group Companies. The activities carried out by the Appellant enables the Participating Group Companies to share the common services, the best available talent and resources required for carrying out their business activities. No taxable service is provided by the appellant and therefore in absence of rendition of such service by the appellant to the Participating Group Companies, the demand of Service tax do not sustain as Service tax is a levy on rendition of taxable service.
Demand of Service tax vis-a-vis Pure Agent - Rule 5(2) of Service Tax Valuation Rules - Held that:- the goods or services procured by the appellant for the use of Participating Group Companies are not availed by the Appellant for its own use or consumption, and he has no function or existence other than as Trustee / Manager (agent) of the Participating Group Companies cost sharing arrangement. - Therefore, the amount so recovered by the appellant is in the capacity of a Pure Agent and thus the same cannot be subjected to the Service tax followed by Pharmalinks Agency (I) Pvt. Ltd. Vs CCE [2014 (10) TMI 284 - CESTAT MUMBAI].
Availment of CENVAT Credit - CA certificate submitted providing details of the CENVAT Credit available during the period in question but was not noticed by the Adjudicating Authority - Held that:- even if the activities carried out by the appellant are subjected to Service tax, the Participating Group Companies who were duly registered with the Service tax authorities during the relevant period and were discharging Service tax on their activities, would be entitled to avail the CENVAT Credit thereof.
Demand of Servive tax - Invokation of extended period of limitation - Held that:- by relying on the judgment of CCEx Vs Reclamation Welding Ltd. [2014 (8) TMI 186 - CESTAT AHMEDABAD], when recipient of same group company is eligible to avail the CENVAT Credit of the duty paid by the assessee, the assessee could not be alleged to have mala fide intent to evade payment of duty and accordingly extended period of limitation cannot be invoked. Therefore, the entire demand and any contrary finding recorded for invoking extended period, are liable to be set aside. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 809 - CESTAT MUMBAI
Availment of Cenvat credit - Tax paid on services used in common for ‘output services' and trading - Held that:- in view of the decision of Tribunal in the case of Mercedes Benz India Pvt Ltd v Commissioner of Central Excise Pune - I [2014 (4) TMI 12 - CESTAT MUMBAI], the credit that may be availed of the tax paid on services used in common for ‘output services' and trading during the relevant period is to be so apportioned and appropriate reversals effected. Therefore, as the turnover has been the basis for apportionment, there is no reason to interfere with the Commissioner (Appeals) order. - Decided against the appellant
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2016 (3) TMI 808 - CESTAT MUMBAI
Related party transactions - Whether the respondents are associated enterprises in terms of Section 92A of the Income Tax Act, 1961 or not - Held that:- on the basis of the definition of associated enterprises as per Section 92A ibid, the respondent is an associate enterprises of the service recipient. The respondent is managing and controlling the mutual fund. Therefore, it is clearly covered under the definition of associate enterprises. On the issue of point of taxation the relevant Section 67 of the Finance Act 1994 is reproduced below:
Point of taxation - Whether to be decided on the date of provisional entries of the transaction in the books of account or on the date of final entry and invoice made by the respondent - Held that:- the provisional entries were made with a specific description of transaction. The explanation does not make any distinction between the provisional entries and the final entries made subsequently. As per the explanation, the moment first time any entry is made irrespective whether it is provisional or final entry the same will be covered under the debit entries as specified under the explanation. Therefore there is no scope in the said explanation to give different treatment to the provisional entries or final entry. So, once debit entries were made even though provisional basis and subsequently final entries are made, it is only the adjustment in the books of account and for this reason the entries made at the first time cannot be said to be irrelevant for deciding the point of taxation.
Demand of interest and penalties under Section 76 & 77 of the Customs Act, 1962 - Held that:- the service tax became due in accordance with the date of provisional entries made first time by the respondent in their books of account. Therefore, there is a delay in payment of service tax which attracts interest. With regard to imposition of penalties, the show cause notice was issued for demand of interest and there is no dispute regarding the payment of service tax. As the issue involved is in the nature of interpretation of valuation section and the penal provisions are invoked only for non-payment or short payment of service tax. Therefore, it is only for demand of interest and the penalties under Section 76 & 77 are not imposable. - Decided partly in favour of the Revenue
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2016 (3) TMI 807 - CESTAT BANGALORE
Waiver of penalty - suppression of fact - 'Manpower Recruitment and Supply Agency Service' during the period of October 2005 to March 2008 - Held that:- appellant themselves did not gave full details of liability of their service tax and the said details were collected by the Revenue from the customers of the appellant-assessee by the Central Excise Department. Also the appellant took the registration under Service Tax on 05.02.2008 but did not come forward to give the details of services provided by them to their customer recipients, where they had liability of payment of service tax to the Department. This shows that the appellant-assessee suppressed the facts from the Revenue with an intention to evade payment of service tax and when when there are malafides proved on the part of the appellant-assessee, they would not be entitled to take the benefit of provisions of Section 73(3)(4) ibid.
Imposition of penalty under Section 77 & 78 of the Finance Act, 1994 - Order-in-original imposed penalty of 200& of the liability of Service tax - Held that:- the penalty of 200% of the Service Tax due, which was the maximum fixed under the then law, can be imposed under Section 78 ibid. Therefore, the penalty of 200% of the tax due is not rightly justified and is reduced to 100% of the liability of payment of Service tax. There is no justifiable reason to interfere with in respect of imposition of penalty under Section 77 ibid. - Decided partly in favour of appellant-assessee
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2016 (3) TMI 786 - CESTAT NEW DELHI
Eligibility for exemption or refund claim for July 2008 to September 2008 - Notification No. 41/2007-ST dated 06/10/2007 - Manufacture & export of carton yarn - Paid Service tax on various services received by them and used for export of goods manufactured by them - Held that:- services on which refund is claimed are in the nature of Port Services and any procedural infirmity in documentation should not be held against a substantial benefit, if otherwise eligible, to the appellant. Therefore, after relying on various decided cases the appellant is eligible for refund claim. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 785 - CESTAT MUMBAI
Rectification of mistake - Taxability - Cleaning Services - Held that:- nothing is brought on record to show that cleaning services rendered by the appellant are not taxable. Therefore, there is no error apparent on face of the record. - Application dismissed
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2016 (3) TMI 784 - CESTAT MUMBAI
Rectification of mistake - Taxability - Cleaning Services - Held that:- nothing is brought on record to show that cleaning services rendered by the appellant are not taxable. Therefore, there is no error apparent on face of the record. - Application dismissed
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2016 (3) TMI 783 - CESTAT NEW DELHI
Liability of Service tax prior to 1.6.2007 - Works Contract - Held that:- it is now settled by the Supreme Court in the case of Commissioner, Central Excise & Customs Versus M/s Larsen & Toubro Ltd. and others [2015 (8) TMI 749 - SUPREME COURT] that works contract was not liable to service tax prior to 1.6.2007. It is also settled by the CESTAT judgment in the case of Bhayana Builders (P) Ltd. vs. CST, Delhi [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], that in the case of free supply of some goods by the service recipient abatement under Notification like 15/2004-ST is admissible even if the value of such goods is not included in the assessable value. Therefore, no service tax is leviable.
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2016 (3) TMI 782 - CESTAT BANGALORE
Imposition of penalty - Section 76, 77 & 78 of the Finance Act, 1994 - Renting of immovable property - Service tax along with interest deposited before issuance of show cause notice - Held that:- as per various decisions of the Tribunal and in terms of the provisions of Section 80(2) of the Finance Act, 1994., the penalty is not imposable. - Decided in favour of appellant
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2016 (3) TMI 781 - CESTAT MUMBAI
Imposition of penalty - Section 78A of the Finance Act, 1994 - Held that:- this Section cannot be invoked for any aberrations by the assessee prior to 10.05.2013 as it was brought into statute with effect from 10.05.2013. Therefore, penalty is not imposable. - Decided in favour of appellant
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2016 (3) TMI 717 - CESTAT CHENNAI
Imposition of penalty - Section 77(1)(a) of the Finance Act, 1994 - Failure to take service tax registration - Penalty imposed of ₹ 200/- per day till the date of payment of tax under Section 77(1)(a) but as per amended provisions the penalty of ₹ 200/- per day has been deleted instead the maximum penalty of ₹ 10,000/- was prescribed - Held that:- the amended Section came into effect from 10.5.2013 and the SCN was issued on 8.1.2014. Therefore, the amended Section 77 (1) (a) is applicable and maximum penalty is imposable is ₹ 10,000/-.
Imposition of equivalent penalty - Section 78 of the Finance Act, 1994 - Entitlement for reduced penalty of 25% which is paid within 30 days from the date of communication of the OIO as per second proviso of Section 78 of the Finance Act as OIO received on 6.6.2014 and the 30th day falls on 6.7.2014 which was being Sunday and appellants have paid the entire service tax along with interest and reduced penalty on Monday 7.7.2014, the next working day - Held that:- the certificate issued by City Union Bank dt.11..7.2014 certifies that DD ws issued in favour of Asst. Commissioner of Central Excise and Service Tax payable at Thanjavur on 05.07.2014. The 30th day i.e. 6.7.2014 being Sunday, so as per the General Clauses Act, the next working day, is to be considered as relevant date for payment purpose. Accordingly, appellants have deposited within 30 days from the date of receipt of OIO the entire service tax, interest and reduced penalty and complied the provisions of Section 78 of Finance Act and therefore, eligible for the reduced penalty as envisaged in the second proviso to Section 78 i.e. 25% which is already paid. - Decided partly in favour of appellant
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2016 (3) TMI 716 - CESTAT NEW DELHI
Demand of Service tax for the period 1997-1998 - Period of limitation - Recipient of GTA services - Held that:- the decision of the Larger Bench, which stand relied upon by the authorities below was considered by the Tribunal in the case of Kisan Sahkari Chini Mills vs. CST, NOIDA [2013 (5) TMI 57 - CESTAT, NEW DELHI] but there were various other decisions of various High Courts holding in favour of the assessee, on the point of limitation. The Hon’ble High Court decision would have preference over the Larger Bench decision of the Tribunal and by following the Hon'ble High Court decision, demands issued in 2004, for the period 1997-1998 are set aside. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 715 - CESTAT NEW DELHI
Demand of Service tax for the period 2004-2005 to 2007-2008 - Construction of complex service - Failure to pay tax liability in respect of 50% of the constructed property assigned to the owners of the land in terms of the Joint Development agreement - Held that:- Department's contention that CBEC Circular dated 29/1/2009 not applicable to appellant's case is not accepted. The main point of clarification by the CBEC is on the implication of “agreement to sale” and provisions of Transfer of Property Act to determine the question of service to another person or service to self. It has been clarified that the execution of sale deed transfers the ownership of their property to the ultimate owner. Hence, any services provided by seller till the execution of such sale deed will be in the nature of self-service with no liability to service tax. Therefore, the distinction sought to be made in the impugned order is not tenable. - Decided in favour of appellant
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2016 (3) TMI 714 - CESTAT NEW DELHI
Cenvat credit - service tax paid by the sub-broker - input services for the period from April, 2007 to October, 2008 - Held that:- the CENVAT Credit Rules clearly allow credit of such services of sub-brokers because those services were used by the appellant for providing taxable service on which service tax was paid. Commission paid was higher than the commission received by the appellant may at best raise some suspicion about the same being in respect of certain goods which were not the same on which it received commission, but there is no evidence to elevate such suspicion to a level to come to an inference that the higher commission (than the commission received by the appellant) was paid to sub-brokers in respect of goods other than the goods for which it received commission from its clients. Therefore, the Cenvat credit is allowed. - Decided in favour of appellant
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2016 (3) TMI 713 - CESTAT HYDERABAD
CENVAT Credit - eligibility of input services vis-a-vis manpower recruitment or supply agency service, renting of immovable properly services, telecommunication services, rent a cab services, etc. - Department denied credit on all input services availed - Held that:- the view of the department do not have nexus with the output services as it has denied credit on all input services availed. By denying credit on all the input services, it seems to appear that the appellants has not availed any input service for providing output service during the relevant period, which is not possible.
In the Circular No. 120/01/2010-ST dated 19-01-2010, Board has specifically clarified that in the case of BPO/call centers the services like renting of premises, software technology services, telecom services, rent a cab services etc. would be needed for providing their output services efficiently and that such services would be eligible for credit. Therefore, by taking into account the judicial dispositions laid in the judgments in Coca Cola India Pvt.Ltd [2009 (8) TMI 50 - BOMBAY HIGH COURT], KPMG Vs CCE. [2013 (4) TMI 493 - CESTAT NEW DELHI] and CCE Vs HCL Technologies [2014 (11) TMI 663 - ALLAHABAD HIGH COURT], on the issues and the circular dated 19-01-2010, the CENVAT Credit is admissible on all the services. - Decided in favour of appellant with consequential relief
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