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Service Tax - Case Laws
Showing 81 to 100 of 144 Records
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2016 (3) TMI 529 - CESTAT BANGALORE
Imposition of penalty - Section 77 (1)(a) of Finance Act, 1994 - Lapse in making amendment in registration certificate - Held that:- the assessee was already registered with the Service Tax department for other categories of services, though they did not amend the registration by making addition of services namely “supply of tangible goods services.” It is clear that there has been lapse in making amendment i.e. of non-addition or non-amendment to the existing registration. This lapse therefore is not strictly covered under the provisions of Section 77(1)(a) as they had been registered for other services. The department has not invoked any other provisions of service tax law/rules for punishing the default in getting the addition/modification/amendment to their existing registration. Therefore, penalty imposed is set aside. - Decided in favour of assessee
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2016 (3) TMI 528 - CESTAT BANGALORE
Liability of Service tax - Amount paid to foreign entities for the services rendered by them prior to 18.04.2006 - Held that:- the provisions of Section 66A of the Finance Act 1994 came into Statute with effect from 18.04.2006 and for the period prior to 18.04.2006, the service tax liability does not arise on the appellant under reverse charge mechanism. This law is now settled by the Hon'ble High Court of Bombay in the case of Indian National Ship Owners Association. The judgement of the Hon'ble Bombay High Court was carried in SLP by the Revenue in Apex Court and the Apex Court has dismissed the SLP in view of the fact that the amount of service tax liability confirmed under this Head are prior to 18.04.2006. therefore, by following the same, appellant is not liable to pay Service tax.
Liability of Service tax - Various amounts received for marketing of the services of the parent concern - Held that:- the issue is settled by a majority order of the Tribunal in the case of Microsoft Corporation (I) (Pvt) Ltd Vs CST Delhi [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)] and many more in the favour of appellant. Therefore, the Service tax liability is not sustained.
Demand of Service tax for the period July 2003 to 19.11.2003 - Denial of benefit of Notification No. 6/1999 granting exemption from payment of duty if the service which are provided are paid in convertible foreign exchange due to withdrawal - Held that:- the issue is no more res integra. It is the avowed principle of Govt of India that only services have to be exported and not the tax. If that be so, in this case, when there is no dispute as to the services being exported and the amount received in foreign exchange tax, liability arises on the appellant which is for the reason that Notification No. 6/1999 was withdrawn. By following the decision of Tribunal in the case of SGS (I) Pvt Ltd Vs CESTAT Mumbai [2011 (2) TMI 54 - CESTAT MUMBAI], the benefit of Notification is not denied and the demand of service tax not raised. - Decided in favour of appellant with consequential relief
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2016 (3) TMI 527 - CESTAT ALLAHABAD
Cenvat credit availed on common input services for rendering taxable output services - Held that:- Internet service, web-hosting service and content service is wholly attributable to the activity of rendering taxable output service. Thus, the demand attributable to these input services is set aside. So far renting of premises is concerned, it is evident that the space provided on 2nd Floor of the same building is for the exempt activity of publishing of books and CDs, have been provided without rent in consideration of the rent paid ₹ 40/- per Square fit vide the separate agreement for 2083 Square/ft. Therefore, the this issue is remanded back.
Imposition of penalty - Rule 15 (3) of CC Rules, 2004 - Held that:- the appellants have co-operated with the revenue by providing the information, requisitioned from time to time. So, the issue is of interpretation of the statutes and no case is made out of deliberate default or contumacious conduct on the part of the appellant. Therefore, by taking a lenient view, the penalty is reduced under Rule 15 (3) of the Cenvat Credit Rules. - Decided partly in favour of appellant
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2016 (3) TMI 526 - CESTAT NEW DELHI
Stay application - Appeal rejected against primary adjudication authority - Period of limitation - Orders claimed to have been sent by speed post were not received and when received the copies thereof, filed the appeals within the prescribed period - Held that:- as appeals were filed within the stipulated period after the appellants obtained copies of the primary adjudication orders, the requirement of pre-deposit is waived off the appeals are allowed. - Stay granted
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2016 (3) TMI 525 - CESTAT ALLAHABAD
Disallowance of refund claim - Input services received at unregistered premises with respect to services received from travel agent, guest house expenses, invoices not produced, service received from vendor not registered under proper category and the name of the appellant was not mentioned on the invoice - Held that:- travel agent service have been wrongly disallowed and is allowable, guest house expenses is also allowable as the guest house is used for business purposes and have got indirect nexus with the business of the appellant. With regard to invoice not produced, the Cenvat credit is allowed to the extent being the amount of the invoices produced now before this Tribunal during the course of hearing and so far as the disallowance is concerned on the ground that the provider of service is not registred under proper category, the disallowance is bad in law and the same is held allowable. With respect to manpower recruitment service, issue is remanded to the adjudicating authority. - Decided partly in favour of appellant
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2016 (3) TMI 524 - CESTAT NEW DELHI
Liability of Service tax and exclusion - Provider of 'commercial training or coaching service' taxable under section 65 (105) (zzc) - Held that:- this issue has been made amply clear in Great Lakes Institute of Management Ltd & oths Versus CST, Chennai & Oths [2013 (10) TMI 433 - CESTAT NEW DELHI - LB]. The contention of the appellant that they are the providers of education and not a commercial coaching or training institution is not correct - The appellant does not have a claim to be included in the exclusionary provision therefore, they are liable to service tax. - Decided against the appellant
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2016 (3) TMI 521 - CESTAT NEW DELHI
Invocation of extended period - Period of limitation - cenvat credit on tower components - duty demand - Held that:- On perusal of the documents, it is seen that there is no categorical evidence for due service of notice issued on 6.12.2010. In the absence of a clear evidence to that effect it is to be concluded that the notice dated 6.12.2010 was not evidenced to have been served prior to 12.01.2012.
Admittedly, the issue involved here is the eligibility of various tower components, which were classifiable under Chapter 72/73 of the Central Excise Tariff Schedule, which has been a matter of dispute before the various judicial forums. Neither the original order nor the impugned order specifically elaborates the grounds on which the element of suppression, fraud, collusion or willfully mis-statement can be alleged and sustained against the appellant. The only ground mentioned is that under Self-assessment Scheme, the appellant/assessee should have been taken credit only on eligible items. Failure to do so will result in invocation of extended period. Find that such reasoning is not sustainable either in law or on fact. Considering the issue involved has been the subject matter of interpretation before the various authorities including courts, the invocation of extended period in the present set of facts cannot be sustained. Accordingly, the impugned order, in so far as it relates to the cenvat credit on tower components, is not sustainable on the ground of time bar and hence, is set aside - Decided in favour of assessee
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2016 (3) TMI 488 - ALLAHABAD HIGH COURT
Writ petition - Seeking a writ of mandamus - Assessment of correct liability of Service tax - Held that:- the matter is still under investigation and the process to issue a notice for making an assessment under the Act is under contemplation. Also there is no assessment order against the petitioner. Therefore, the petitioner cannot be forced to pay the amount as per the statement recorded. - Writ petition disposed of
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2016 (3) TMI 487 - DELHI HIGH COURT
Applicability of Section 35F of the Central Excise Act, 1944 - Waiver of pre-deposit - Appeals pending on the date of amendment before CESTAT - Held that:- in the absence of any saving clause qua the provision as it stood prior to the amendment, there is as of date no provision in the CE Act which mandates pre-deposit in appeals pending before the CESTAT prior to 6th August 2014, the Appellant has a statable case on the strength of the decision of the Constitution Bench of the Supreme Court in Kolhapur Canesugar Works Ltd. Vs. UOI, [2000 (2) TMI 823 - Supreme Court of India]. - Decided in favour of appellant
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2016 (3) TMI 486 - BOMBAY HIGH COURT
Validity of Tribunal's order - Not considered various points - Held that:- as the Tribunal did not considered various points raised by the appellant including whether Commissioner of service tax had the jurisdiction to impose penalty under Section 78 of the Central Excise Act, 1944 for a period prior to 13th May 2005? Whether there was deliberate intent on the part of the Appellant to evade tax? Whether there is any fraud, collusion, wilful misstatement, suppression of facts or contravention of any of the provisions of the Act and Rules made thereunder etc. Therefore, the Tribunal's order is the most unsatisfactory and an unreasoned order and liable to be quashed and set aside. - Decided in favour of appellant
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2016 (3) TMI 485 - BOMBAY HIGH COURT
Validity of Tribunal's order waiving the penalty - Scope of section 80 w.e.f. 14-5-2015 - Penalty imposed under Section 78 of the Finance Act, 1994 - Failure to pay Service tax - Service tax was not leviable at the time of execution of agreement but subsequently leviable during the time of subsistence and implementation of contract - Held that:- the Tribunal omitted from considering the fact that though the contract was executed prior to 10 September 2004, the same was a continuing contract and obligation. The work continued. Also the Tribunal omitted the fact that there was an inspection of the premises in the year 2007 and that is how the assessee was called upon to pay the tax which was not paid till then. After that, an order-in-original was about to be passed on a show cause notice, but that was avoided by payment of the tax and discharge of the liability. Whether such an act absolves an assessee from payment of penalty and specifically with the aid of Section 80 of the Finance Act, 1994 which was on the statute book till its amendment by Finance Act, 2015 with effect from 14 May 2015, is the question which has not been examined by the Tribunal at all. There is rather no reference to Section 80 of the Finance Act, 1994. As the Tribunal's order is cryptic and the reasons are wholly unsatisfactory, needs to be quashed and set aside. - matter restored before tribunal - Decided in favour of the revenue
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2016 (3) TMI 484 - BOMBAY HIGH COURT
Availment of input service credit - Whether CENVAT credit can be claimed or not in terms of the options provided or after discharging the liability in full - Held that:- Revenue is not put to loss as the tax liability has been discharged in full so, We should not undertake an academic exercise. In the light of various observations and findings rendered on the interpretation of the Rule 2A and Section 67 of the Finance Act, 1994, a scrutiny thereof can be undertaken in an appropriate case meaning thereby that the exercise of satisfying ourselves whether these findings and conclusions are sustainable in the light of the language of the rule and the substantive provision, is something which need not detain us in this case. By clarifying that all such issues raised and the substantial questions of law, can be gone into in appropriate case where Revenue has sustained any loss or there is evasion of tax. Appeal disposed of
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2016 (3) TMI 442 - GUJARAT HIGH COURT
Writ petition - Legality, validity and vires of Notification No.24/2007 dated 22.5.2007 and circular No.98/1/2008-ST dated 04.01.2008 - Service tax levied on the “renting of immovable property” as oppose to service tax on a service provided “in relation to renting of immovable property” - Section 65 (90a) and Section 65 (105 (zzz)) of the Finance Act, 1994 as amended by Finance Act, 2007 errorneously interpreted - Held that:- the issue involved is no more res integra and covered by the decision of this Court in the case of Cinemax India Limited v. Union of India [2011 (8) TMI 71 - GUJARAT HIGH COURT] where in the context of challenge to notification No.24/2007. S.T. Dated 22nd May, 2007 and with regard to question of law involved therein about validity of Sub-clause (zzzz) of clause (105) of Section 65 of Finance Act, 1994 as amended by Section 75(5)(h) and Section 76 of the Finance Act, 2010 came to be rejected and even SLP preferred before the Apex Court was also rejected. - Matter disposed of
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2016 (3) TMI 441 - MADRAS HIGH COURT
Cenvat Credit - input service - Outdoor catering services provided to the employees of the factory - Held that:- the Commissioner did not dispute the fact that the outdoor catering services were rendered to persons engaged by the assessee in or in relation to their business activities. On the contrary, the Commissioner, in his Order in Original, recorded a finding that the services of outdoor catering involved mere subsidisation of food consumed in the canteen by the employees and therefore, it was in the nature of perquisites enjoyed by the employees. Hence, when there is a clear finding of the Commissioner in his Order in Original that these services were actually consumed by the employees of the assessee, the question of the Tribunal recording a finding does not arise. Also a notification issued in Notification No.3/2011 dated 1.3.2011 excluding the outdoor catering services came into effect on 1.4.2011 but here the period relates to a period prior to 1.4.2011. Therefore, the Tribunal's order is correct. - Decided against the revenue
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2016 (3) TMI 440 - CHHATTISGARH HIGH COURT
Validity of Tribunal's order - Tribunal only considered and discussed the contentions of Respondent and not of Appellant - Held that:- the Appellant's appeal is allowed and there is no discussion in the body of the order with regard to the appeal preferred by the Appellant while allowing the appeal of the Respondent. Therefore, the tribunal's order is set aside. - Decided in favour of the revenue
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2016 (3) TMI 405 - ANDHRA PRADESH HIGH COURT
Condonation of delay - CESTAT dismissed the appeal, as barred by limitation - delay of almost 2 years - Held that:- The reasons for seeking condonation of delay is only one singular reason which has been stated in the affidavit that the appellant was under bonafide belief that TTD would discharge their liability with respect of service tax. Inasmuch as the appellant was under the impression that the service tax is only a pass-through and payable by TTD, they did not file any appeal. Though the taxable turnover so far as the service tax is concerned, is alleged to be only about 70 lakhs notwithstanding the total turnover of ₹ 4.70 crores, we are of the opinion that the reasons stated in the delay condonation petition are not fully satisfactory.
However, we also notice that the order in Original was passed on 30.11.2012. Even as on today, no steps were taken by the department in collecting the tax amount, which has been demanded by the order dated 30.11.2012. Assuming the delay is caused in asserting the right by the appellant, there is also lapse on the part of the department in not enforcing the order which has been passed on 30.11.2012 even after expiry of the appeal time under the Statute - Delay condoned subject to conditions.
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2016 (3) TMI 404 - CESTAT NEW DELHI
Extended period of limitation - Bonafide belief - Not seeking registration - Technical Inspection and Certification Agency - wilful misstatement / suppression of facts - Held that:- Nothing has been brought out as to how the appellant was guilty of wilful misstatement / suppression of facts. An assessee who has a bonafide belief that it is not liable to tax would naturally not obtain registration, assess itself to tax or file returns. This by itself does not tantamount to wilful misstatement / the suppression of facts.
The appellant initially took registration on 10.08.2000 thinking that it was providing management consultant service and even paid tax thereunder for a while before it was advised that it was not liable to pay service tax under Management Consultant Service by its legal Consultant, establishes its bonafides.
Thus even in the show cause notice the only grounds on which wilfull misstatement/ suppression of facts has been alleged are that the appellant did not declare the service to the Department, did not obtain registration and did not pay tax. These grounds have been analysed above in the light of authoritative judicial pronouncements and held to be inadequate for the said purpose in the absence of any substantial evidence that all that was wilfull and to evade tax.
Demand set aside - Decided in favor of assessee.
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2016 (3) TMI 403 - CESTAT MUMBAI
Monetary limit - whether departmental internal instructions biding upon the tribunal - Validity of direction issued by the AC to adjudicating authority to implement the appellate order beyond the scope of order in appeal - additional ground sought to be raised in the appeal - eligibility of M/s Himalaya Tyres for threshold limit, applicable to small service-providers under notification no. 6/2005-ST dated 1 st March 2005 - Held that:- The introduction of additional ground of appeal through the review undertaken in exercise of powers conferred by section 86(2A) of Finance Act, 1994 is outside the scope of these proceedings. We notice that the impugned order has not touched upon imposition of penalty under section 76 while disposing off the order of the original authority dated 11 th December 2009 against which the assessee had filed an appeal before Commissioner of Central Excise & Customs (Appeals), Aurangabad. - Additional ground not admitted.
Our reason for not deciding on merits is prompted by the letter of respondent dated 8th January, 2016 placed before us in lieu of representation and seeks dismissal of appeal of Revenue as the amount in dispute is below the threshold limit that allows exercise of discretion in refusing to hear the matter.
We notice that this is so and, additionally, that it is well below the prevailing limit of ₹ 10 lakhs prescribed by the Central Board of Excise and Customs, in its instruction in F.No. 390/Misc./163/2010-JC dated 17 th December 2015 in exercise of powers under section 35R of the Central Excise Act, 1944 made applicable to Finance Act, 1994 for filing appeals before the Tribunal.
Taking cognizance of the tax amount in dispute and the non-applicability of the exclusions in the instruction supra, we dismiss the appeal filed by Commissioner of Central Excise & Customs, Aurangabad. The cross-objection is also disposed of. - Decided against the revenue.
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2016 (3) TMI 402 - CESTAT MUMBAI
Taxability of maintenance and repair services relating to information technology software till December 2007 - Held that:- The articulation of legislative intent sought to be derived from this decision by the Central Board of Excise & Customs may not be tenable to the extent that it exceeds the compass of the cited decision. Therefore, the cited circular, relying as it does on the cited decision, does not permit for taxability of any software other than ‘canned software' and reliance on that circular cannot appreciably sustain the findings in the impugned order.
'Goods' are, therefore, and more particularly in the context of the new taxable entry of 2008, restricted to computer software, which appears to be interchangeable with proprietary software, whose maintenance alone is liable to be taxed prior to 16 th May 2008 under section 65(105)(zzg).
Software, other than ‘canned' would not be amenable to description as computer software which is essential to start up and run the core programs of a system. ‘Information technology software' is essential for smooth running of the business activities of the user. Thus the clients of the appellant in this case would be users of ‘information technology software' and hence any maintenance of that software would be taxable only after 16 th May 2008 as decided by this Tribunal in re SAP India Pvt. Ltd.
The demand under ‘maintenance or repair services' in the impugned order does not survive. - Demand set aside - Decided in favor of assessee.
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2016 (3) TMI 401 - CESTAT BANGALORE
CENVAT credit - Scope of input services - Input services received at their Head Office and subsequently distributed to the appellant herein - Input Service Distributor (ISD) - procedure not followed - Held that:- The plain reading of the definition of input services (as hereinabove reproduced) indicate that the activities relating to business which is in the second portion of the definition includes the activity of financing which would mean that if an assessee pays service tax for the various services received by them for raising the finance, CENVAT credit can be availed. In our considered view, the CENVAT credit availed by the appellant or service tax paid cannot be disputed.
We find nothing on record to indicate that Head Office of the appellant was issued a show-cause notice denying them such CENVAT credit. In the absence of any doubt raised as to the eligibility to avail the CENVAT credit at their Head Office, the recipient unit, cannot be asked to explain the nexus of such credit to the output service provided by them.
As regards the dispute raised in the impugned order as to eligibility to avail the CENVAT credit on the invoices raised by the ISD for the services received prior to the registration of the Head Office as an Input Service Distributor, it is held that such credit can be availed.
Demand set aside - Decided in favor of assessee.
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