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Service Tax - Case Laws
Showing 61 to 80 of 144 Records
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2016 (3) TMI 712 - CESTAT BANGALORE
Liability of Interest - Cenvat Credit wrongly taken for the period April 2009 to November 2009 - Held that:- as the Cenvat Credit has wrongly taken/claimed by the appellant for the said period, trhe interest become payable under provisions of Rule 15(1) of Cenvat Credit Rules 2004 read with provisions of Section 75 of Finance Act, 1994 to be paid by the appellant.
Imposition of penalty - Rule 15(1) of Cenvat Credit Rules - Cenvat Credit wrongly taken for the period April 2009 to November 2009 - Appellant said that the said services were received from abroad in their Mumbai office and statements using such services come to their centralized office in Bangalore - Held that:- there was no intention of the appellant to take the Cenvat Credit when it was not due. In fact it had become due to them, when they had paid the service tax in the month of November 2009 and the reason has explained by the appellant for the same mistake. Sometimes such unintentional mis-happenings/mistakes do take place for which the appellant is not to be punished by imposing the penalties. Therefore, by considering the decision of the Hon'ble Supreme Court in the case of Hindustan Steel Ltd. Vs. State of Orissa [1969 (8) TMI 31 - SUPREME Court], the penalty under Rule 15 ibid is not imposable.
Eligibility of Cenvat Credit - Taken twice on same set of documents - Appellant pleaded that that they have seven documents against eight documents to prove correctness of the credit and the 8th document is not available but for this they have a board letter confirming the eligibility of taking Cenvat Credit - Held that:- as regard to appellant plead, matter remanded to the original adjudicating authority with the direction that the appellant is given full opportunity of personal hearing and that of submission of necessary documents before taking decision in the case afresh. - Decided partly in favour of appellant
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2016 (3) TMI 674 - PUNJAB & HARYANA HIGH COURT
Exemption from service tax on construction service provided to in case of religious use but not to charitable purpose - Constitutionality of clause 13(c) of Notification No. 25/2012-ST, dated 20.6.2012 - It provides class legislation there being no intelligible differentia of reasonable classification in religious charitable institutes and educational charitable institutes and both registered under Section 12AA of the Income Tax Act, 1961 - Held that:- a provision, statute or law shall not be declared to be unconstitutional and void solely on the ground of unjust and harsh provisions or it violates some natural, social, political or economic rights of citizen, unless it is established that such injustice infact is prohibited or violates the rights guaranteed or protected by the Constitution of India. The notification issued by the authorities by way of delegated legislation can be held to be beyond statutory competence if the power to issue the same does not emanate from the statutory provisions. Equally, it can also be struck down on the ground that it is arbitrary, unreasonable or unjust. Rather, clause 13(c) of the notification dated 20.6.2012 exempts building owned by an entity registered under Section 12AA of the Act and meant predominantly for religious use by general public from payment of service tax and is, thus, a beneficial exemption granted thereunder which cannot be said to be unconstitutional.
Also it is not shown that the competent authority is not empowered to issue the impugned notification. Once there exists legislative competence in the State legislature or competent authority, in the absence of petitioner's demonstration that the enactment/provision/notification is arbitrary, discriminatory or violative of Article 14 of the Constitution of India, it cannot be declared to be unconstitutional. Therefore, clause 13(c) of Notification No. 25/2012-ST is constitutional. Decided against the petitioner
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2016 (3) TMI 673 - CESTAT CHENNAI
Eligibility of refund claim on input services viz. Company Secretary Service, Chartered Accountant Service, Security Service, Legal Consultancy services etc - Rule 5 read with Notification No.12/2013 dt. 1.7.2013 - Appellant registered as Multi Product Special Economic Zone (MPSEZ)claimed refund of service tax on Company Secretary Service, Chartered Accountant Service, Security Service, Legal Consultancy services etc. used towards authorized operation of SEZ - Held that:- as regards legal services on perusal of various bills, and invoice, invoice has been raised for appearing before Hon’ble Madurai Bench of Madras High Court on 13.1.2013 wherein ₹ 10,00,000/- was paid. Also there is an invoice raised towards professional charges in connection with appearing before Hon'ble Madurai Bench of High Court, wherein the appellants have paid legal fees of ₹ 10,05,000/-. These invoices clearly show that fees have been paid for the appeal suit. In bills it has been clearly mentioned that amount has been paid in connection with Appeal Suit which was related to Madurai Land Land Acquisition matters pending before Madurai Bench of the Hon’ble Madras High Court. From the challan dt. 29.3.2014, it is seen that the appellant have remitted the service tax under reverse charge under the services of legal consultancy service. Bills and remittances of service tax clearly confirms that appellant being a developer of AMRL Hi-Tech City has to fight legal case. Since the case relates to land acquisition of 2520 acres the input services in dispute were used as authorized operation of SEZ as a developer. Therefore, the appellants are eligible for refund under Rule 5 of CCR read with Notfn No.12/2003 as amended on the input services i.e. Company Secretary Service, Chartered Accountant service , Security service, Legal Consultancy service, ITS service, GTA service. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 672 - CESTAT CHENNAI
Imposition of penalties u/s.77 (1a), 77(2) and 78 of the Finance Act, 1994 - Appellant working as interior decorator not registered with the Service tax department and also not collecting any service tax on the invoices raised by him to his clients. After enquiry initiated, realised his liability and deposited tax with interest and 25% penalty before issue of show cause notice and after availing Cum tax benefit - Held that:- when the assesse is not disputing his liability for discharging the statutory obligations and has paid the entire tax alongwith the interest and 25% of the penalty and there after discharging his obligations as a tax payer, in view of the provisions of Section 73(4A) the proceeding should be deemed to have been concluded. By following the decision of Hon'ble Supreme Court in the case of Commissioner vs Advantage Media Consultant [2008 (10) TMI 570 - SUPREME COURT], the penalties under Section 77(1)(a) and 77(2) are set aside and penalty imposed under Section 78 is restricted to 25% of duty demanded. Decided in favour of appellant
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2016 (3) TMI 671 - CESTAT AHMEDABAD
Imposition of penalties for the period 2007-08 to 2010-11 - Sections 76 & 78 of the Finance Act, 1994 - Respondents paid almost the entire amount of service tax due before issuance of show cause notice - Held that:- the legislature in its wisdom has also amended the provisions of Section 78, albeit from 01.4.2011, that the penalty under Section 78 may be reduced to 50% when true and complete details of the transactions are available in the specified records. In view of the same, the equivalent penalty imposed on the Respondents under Section 78 of the Finance Act, 1994, is to be reduced to 50% of the same in respect of the first show cause notice. Also the penalty can not be imposed under Section 76 because the same is not imposable after 10.05.2008 as per the provisions itself. Therefore, in view of the Tribunal decision in case of Jivant Enterprise vs. Commissioner of Service Tax, Ahmedabad [2012 (7) TMI 164 - CESTAT, AHMEDABAD], if the show cause notices are issued after the date of amendment, penalties under Section 76 and 78 simultaneously cannot be imposed and hence setting aside the penalty under Section 76 is uninterferable. - Decided partly in favour of the Revenue
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2016 (3) TMI 670 - CESTAT AHMEDABAD
Imposition of penalties for the period 2007-08 to 2010-11 - Sections 76 & 78 of the Finance Act, 1994 - Respondents paid almost the entire amount of service tax due before issuance of show cause notice - Held that:- the legislature in its wisdom has also amended the provisions of Section 78, albeit from 01.4.2011, that the penalty under Section 78 may be reduced to 50% when true and complete details of the transactions are available in the specified records. In view of the same, the equivalent penalty imposed on the Respondents under Section 78 of the Finance Act, 1994, is to be reduced to 50% of the same in respect of the first show cause notice. Also the penalty can not be imposed under Section 76 because the same is not imposable after 10.05.2008 as per the provisions itself. Therefore, in view of the Tribunal decision in case of Jivant Enterprise vs. Commissioner of Service Tax, Ahmedabad [2012 (7) TMI 164 - CESTAT, AHMEDABAD], if the show cause notices are issued after the date of amendment, penalties under Section 76 and 78 simultaneously cannot be imposed and hence setting aside the penalty under Section 76 is uninterferable. - Decided partly in favour of the Revenue
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2016 (3) TMI 669 - CESTAT NEW DELHI
Liability of tax on extended warranty service between October 2005 and September 2010 - Business Auxiliary Services - Money received towards extended warranty - Held that:- the context in which the service becomes taxable is that of an intermediary who arranges goods or services for further business activity; the use of the words 'inputs' and 'client' as well as the explanation appended would make it appear to be so. The procurement of service which is an input for the client alone will enable classification in the sub-category of section 65(19)(iv). Service of replacing defective parts will have to be rendered by a dealer of the respondent. That service will be provided only if and when such defect exists in a car. Should the need for such replacement arise, it would be only then that the service intended for use by the client comes into play. Mere coverage by the extended warranty scheme does not, of itself, create an intention to use the service of the dealer. Therefore, no liability of tax arises under Business Auxiliary Services on money received towards extended warranty. - Decided against the department
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2016 (3) TMI 628 - MADRAS HIGH COURT
Whether show cause notice issued is erroneous or not - Matter decided without bothering for petitioner's explanation as he has not given any explanation of show cause notice - Held that:- the impugned notice is only a show case notice and it is not an order passed by the first respondent. Without filing their explanation and producing the necessary documents to substantiate their case, the first respondent will not be in a position to decide the matter in accordance with law. When the first respondent has stated that the petitioner is liable for service tax, it is for the petitioner to explain their contention by producing all the records before the first respondent stating that they are not liable for payment of service tax. The petitioner can be given a reasonable time for filing their explanation to the show cause notice raising all their objections and also all the documents to substantiate their contention. Therefore, the petitioner is at liberty to file their objections to the show cause notice issued by the first respondent. - writ petition dismissed - Decided against the assessee.
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2016 (3) TMI 625 - MADRAS HIGH COURT
Recovery of Refund - GTA service - Appeal for quashing a show cause notice for recovery of refund already made dismissed - Held that:- the show cause notice was issued on 20.7.2000. Section 117 of the Finance Act, 2000 made it clear that any refund already made could be recovered only within the period of 30 days from the date on which Finance Act, 2000 received the assent of the President and brought-forth of an amendment under Sections 116 and 117 of the Finance Act, 2000, to Section 65 of the Finance Act, 1994 received the assent on 12.5.2000. Therefore, the show cause notice was not in accordance with Section 117. Hence, the substantial questions of law need not be answered at all as the claim for recovery of the refund was not been made in accordance with Section 117. Therefore, the order passed by Tribunal is valid. - Decided against the revenue
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2016 (3) TMI 624 - CESTAT HYDERABAD
Admissibility - Refund claim - Unutilised CENVAT credit of service tax paid on input services - Rule 5 of the CENVAT Credit Rules 2004 read with Notification No.5/2006-CE(NT) dt. 14/03/2006 - Held that:- when the definition of inputs had a wider ambit as it included almost all services within its purview as the definition included activities relating to business. As per Coca Cola India Pvt. Ltd. Vs. CCE, Pune-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], KPMG Vs CCE. [2013 (4) TMI 493 - CESTAT NEW DELHI] etc., the Hon'ble High Courts as well as Tribunal, all the services listed are eligible for credit. Therefore, in view of the above judgments, the impugned services qualify as input services and the refund of credit is admissible. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 622 - CESTAT NEW DELHI
Rejection of refund claim - Doctrine of Unjust enrichment - Vocational training - Impart of training courses in foreign languages to individuals and corporates - Claimed exemption under notification no. 24/2004-ST dated 10.09.2004 - the value of service remained the same in all the three periods namely before it paid service tax during the period when it paid service tax and after that when it stopped paying service tax. This fact certainly provides a lot of gravitas to the appellant's claim that the burden was not passed on to the customers. Also there is a certificate of Chartered Accountant certifying that the burden of tax was not passed on the service recipient. Further, the invoices did not show the component of service tax at all. All these factors put together constitute sufficient weight of evidence to infer that the appellant has been able to discharge of its onus to establish that it did not pass on the burden of Service tax (which is being claimed as refund) to the service recipient. Therefore, the refund is not hit by the doctrine of unjust enrichment. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 621 - CESTAT NEW DELHI
Waiver of pre-deposit - Renting of immovable Property Service from 19.4.2008 to 30.7.2010 - Premium received for leasing the property for continuous enjoyment - Held that:- appellant was not a part of the lease agreement and was also not the provider of the impugned service. Though the service was rendered by State Government and not by the appellant, the appellant has fairly made a good case in its favour but not entirely so. Therefore, make pre-deposit of 7.5% of the impugned service tax liability. - stay granted partly.
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2016 (3) TMI 619 - CESTAT MUMBAI
Rejection of Cenvat Credit availed only on the ground that section 66A has not been specified in Rule 3 of CENVAT Credit Rules - denial of an amoun being the Cenvat Credit for the period prior to 18.04.2006 citing that Section 66A was brought into the statute book with effect from 18.04.2006 and there was no charge of service tax on the services received from outside India prior to 18.04.2006 - payment of service tax under reverse charge mechanism in case of services received from foreign party - Held that:- There is only one charging section in the service tax i.e. Section 66. Section 66A is merely a deeming provision which deems that the services provided by various service providers are provided by service recipients in India. Section 66A is not a charging section and the same has also been made clear by circular 354/148/2009-TRU dated 16.07.2009 and in the said circular CBEC has made it clear that there is no mistake or omission in that relevant provision of CENVAT Credit Rules, 2004 and credit of tax paid on imported services should be allowed if they are in the nature of input services. Further in this case the tax was paid under Section 66 of the Finance Act, and hence the credit is admissible to the appellant. Further as per the department impugned order though the tax itself was not required to be paid then in that case credit is nothing but a refund of the tax erroneously paid by the appellant in their Cenvat Credit account.
Further, in the case of Bajaj Allianz General Insurance (2014 (8) TMI 787 - CESTAT MUMBAI) the bench of this Tribunal by relying upon the judgment of the Supreme Court in the case of CIT vs Mahalakshmi Textile Mills Ltd. (1967 (5) TMI 4 - SUPREME Court ) has held that the Cenvat Credit taken by the appellant is nothing but refund of the service tax paid by them on the services which were not required to pay service tax. The above said decision is squarely applicable in the facts and circumstances of the present case. Further, in this case extended period cannot be invoked as the appellant have been disclosing the credits in their ER-1 returns and they were under a bonafide belief that they are liable to pay tax in terms of Rule 2(1)(d)(iv) and also entitled to take credit and the issue involved in the present case was with regard to interpretation of statutory provision and moreover the ld. Commissioner has also not given any finding that the appellant have suppressed anything from the department. - Decided in favour of assessee
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2016 (3) TMI 577 - CESTAT CHENNAI
Rectification of Tribunal's order - Setting aside Section 78 penalty - Held that:- the tax was collected and paid in time to the department and also appropriated only after detection by the department as they had not voluntarily paid and not registered with service tax and not filed returns. Therefore, there is no apparent mistake found to rectify the same. Appellants seeking to set aside penalty would amount to review of the order and this Tribunal has no power to review its own order as held by various High Courts and the Hon'ble apex Court, the one being held by the Supreme Court in the case of CCE Belapur Mumbai Vs RDC Concrete (India) P. Ltd. [2011 (8) TMI 25 - SUPREME COURT OF INDIA]. - Decided against the appellant
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2016 (3) TMI 576 - CESTAT NEW DELHI
Waiver of pre-deposit - Management Consultancy Service - Export of service - Held that:- applicant has filed F.I.R.C.s for the demand pertains to export of service and it has neither disputed in the show cause notice nor verified by the Adjudicating Authority. Therefore, the demand covers under the export of service and pre-deposit is allowed to be waived off.
Waiver of pre-deposit - Management Consultancy Service - Services provided to foreign service recipient but nor recieved remuneration in foreign convertible exchange - Held that:- these services do not qualify under Export of Service Rules as these services have been rendered by the applicant as representational services on behalf of their client by appearing before the various Authorities to defend the service recipient. Therefore, it covers under the Notification No. 25/2006, dated 13.07.2006 and the applicant is not liable to pay service tax. The pre-deposit is waived of.
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2016 (3) TMI 575 - CESTAT MUMBAI
Imposition of penalty - Whether unamended provision of Section 78 according to which 100% penalty or amended provision of Section 78 according to which 50% penalty is applicable - Adjudication was done after 8.4.2011 but offence of evasion of service tax has taken place prior to 8.4.2011 - Transactions are recorded in the books of the assessee, when the offence was taken place during the period of unameded Section 78 - Held that:- there is no saving clause in Section 38A of the Central Excise Act, for saving erstwhile Section 78 of the Finance Act, nor even anything provided in the amended Section 78 regarding the non applicability of the amended provisions in the case pertaining to the period prior to amendment. In such situation amended Section 78 shall clearly apply at the time of Adjudication of the show cause notice. Therefore, the penalty is imposable equal to 50% of the Service Tax amount not paid. - Decided against the revenue
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2016 (3) TMI 574 - CESTAT NEW DELHI
Leviability of Service tax - Works Contract - Services rendered both labour and supply of material for the period prior to 01.06.2007 - Held that:- whatever amount is recovered in the name of service tax for service rendered prior to 1.6.2007 was required to be deposited in the government account in terms of section 73A of the Finance Act 1994. The introduction of works contracts service w.e.f. 01/06/2007 (under which the impugned service is classifiable), the government introduced Works Contract (Composition Scheme for Payment of Service Tax) Rules 2007 and also incorporated Rule 2A of the Service Tax (Determination of Value) Rules 2006, for determination of value of service portion in the execution of works contracts. In the light of these developments, no service tax is leviable here for the period prior to 01/06/2007 and for the remaining period. - Matter remanded back
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2016 (3) TMI 573 - CESTAT CHENNAI
Imposition of penalty under Section 77 & 78 of Finance Act, 1994 - Tax paid with interest - Held that:- When there was amendment of the law to grant immunity from persecution in terms of the Finance Act, 2010, the penalty proceeding being quasi-criminal in nature, so the appellant also deserves consideration for exoneration from levy of penalty. therefore, levy of penalty under section 78 is waived of. However, the penalty under section 77 shall be maintained since there is concurrent liability. - Decided partly in favour of appellant
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2016 (3) TMI 572 - CESTAT MUMBAI
Business auxiliary services or mailing list compilation and mailing services - taxability of Commission received on franking received from the Department of Posts - from 1 st July 2003 to 31 st March 2006 - Held that:- We cannot but be surprised by the discriminatory approach in the two impugned orders situated in identical circumstances by the same appellate authority. The more specific taxable service of 'mailing list compilation and mailing' was notified only from 16 th July 2005 and taxing that very service under any other entry that existed till then is an act of overreach contrary to legislative intent of taxing the rendering of that service only with effect from 16th June 2005. The later order in the matter of M/s Sai Mailing Service was decided without taking into account the benefit of enlightenment in the form of the order in the matter of M/s United Mailing Service and has, therefore, erred in upholding the decision of the lower authority for the demand prior to 16 th June 2005.
The transaction of franking or usage of the postal service is solely between the appellants and the post office with the former as the customer of the latter. The depiction of the latter as a client is not consistent with this reality and the categorization under section 65(19)(vi) fails the test of rationality.
Demand prioro to 16-6-2005 dropped - demand on service charges collected from clients for the period from 16 th June 2005 to 31 st March 2006 confirmed - Decided partly in favor of assessee.
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2016 (3) TMI 571 - CESTAT NEW DELHI
Waiver of pre-deposit - Sustainability of Service tax demand - Works Contract - Construction of Post Graduate Girls Hostel at Sardar Vallabhbhai National Institute of Technology (SVNIT) Surat and constructed /modernised ESIC hospital at Jaipur - Held that:- demand relating to construction of ESIC hospital would not be covered under construction of new building or structure for the purpose of commercial or industry as ESIC hospitals are not commercial or industrial ventures. Therefore, demand relating thereto do not sustain. As regards the girls hostel, it would get covered under the scope of construction of new residential complex as is evident from the definition of residential complex service under Section 65(105)(91a) because it will not get covered under the exclusion category as the construction was not done by directly engaging the appellant inasmuch as SVNIT did not directly engage the appellant who is a sub-contractor of NBCC which was directly engaged by SVNIT. Thus the demand pertaining to construction of girls hostel sustains. - stay granted partly.
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