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Service Tax - Case Laws
Showing 41 to 60 of 111 Records
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2016 (7) TMI 1031 - CESTAT NEW DELHI
Waiver of pre-deposit - Commercial or Industrial Construction Service (CICS) - Manpower Recruitment or Supply Agency Service - Maintenance and power backup expenses recovered from the clients in the form of fixed charges, operator charges, fuel consumption /running expenses. - Admissibility of Cenvat Credit - Held that:- Having regarding to the foregoing discussion and keeping in mind that the appellant has also raised the issue of time bar, though that is contested by ld. Departmental Representative and elaborate discussion thereon can be done only at the time of final hearing, we are of the view that e pre-deposit of ₹ 50 lakhs would meet the requirement of Section 35F of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. - stay granted partly.
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2016 (7) TMI 997 - CESTAT NEW DELHI
Levy of penalty - Non payment of service tax - bondafide belief - it was submitted that the appellant was not aware about the fact that the activities undertaken by it were subjected to levy of service tax under the head “Business Auxiliary Service” (BAS), which was brought to the service tax net with effect from 01.07.2003. - Held that:- the period of dispute in this case is from 01.07.2003 to 30.03.2005. Therefore, we are of the view that the appellant should get the benefit of section 80 ibid, and accordingly, Penalty imposed under sections 76, 77 and 78 ibid in the adjudication order should be set aside. However, since the appellant had defaulted in filing the returns and not obtained the registration certificate within the prescribed statutory time frame, we are of the view that imposition of penalty under Section 75A ibid by the authorities below is justified. - Decided partly in favor of assessee.
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2016 (7) TMI 996 - CESTAT BANGALORE
Manpower supply services or not - Consequent to the BIFR Scheme, the Lease Agreement was signed between the appellant (PTL) and Apollo Tyres Ltd. (ATL) on May 14, 2005. In the Lease Agreement, it was inter-alia mentioned that in addition to payment of lease rental, ATL will reimburse to the appellant, PTL the actual expenses including the cost of personal.
Held that:- even if the appellant (PTL) is called as service provider, we do not find any service recipient in this case as the personnel (manpower), who are manufacturing ATL brand tyres and tubes, continued and continues to be in the pay roll of the appellant (PTL) and from the documents on record, we cannot say that the appellant (PTL) has provided any service in relation to recruitment and supply of manpower in any manner temporarily or otherwise and the appellant company has never been and presently also not in the business of manpower supply or recruitment temporarily or otherwise, in any manner.
The appellant has argued that even on the ground of revenue neutrality, they should not be charged any service tax. Revenue has argued that revenue neutrality cannot be a ground for non-levy of service tax, if the activity is otherwise covered under Service Tax law. We do not find any reason to consider this argument of revenue neutrality of the appellant or the counter argument of the Revenue that revenue neutrality cannot be a ground for non-levy of service tax as the subject activities and operations of the appellant have not fulfilled the ingredients of the definition of the manpower recruitment or supply agency service as per the provisions of Section 65 (105) (k) of the Finance Act, 1994, as discussed in earlier parts.
The Revenue has tried to make a case to bring the subject activity and operations/transactions of the appellant within the definition of manpower recruitment and supply agency service. However, when facts on the ground and the documents indicate otherwise, the Revenue cannot sustain its case beyond mere statement and it cannot succeed legally. - Demand set aside - Decided in favor of assessee.
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2016 (7) TMI 995 - CESTAT NEW DELHI
Demand of service tax on passenger service fee and airport taxes - extended period of limitation - Held that:- mere non-payment of duties is not equivalent to collusion or wilful mis-statement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegation of wilful mis-statement. - the ingredients required for imposing penalty under Section 78 ibid are conspicuously absent in this case.
Demand pertaining to passenger service fee and airport taxes is set aside and the penalty under Section 78 ibid is also set aside. - Decided in favor of assessee.
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2016 (7) TMI 994 - CESTAT NEW DELHI
Cargo handling service - service receiver had deposited the service tax under the category of goods transport agency as the service recipient. It is his submission that since the service tax paid by the recipient of service has been accepted by the department and retained as legitimate tax due, confirmation of demand under the category of cargo handling service is not appropriate as the same amounts to double taxation.
Held that:- we are of the prima-facie view that the disputed service is not conforming to the definition of GTA Service. Therefore, we do not find merits in the submissions of the appellant for complete waiver of pre-deposit - stay granted partly.
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2016 (7) TMI 899 - CESTAT AHMEDABAD
Period of limitation - relevant date - refund of accumulated credit of service tax paid on input services used in exports of services - Held that:- It is not disputed that there is a time limit of one year prescribed under Section 11B of the Central Excise Act, 1944. However this time limit runs from the relevant date . The question is which is the relevant date in the case of such accumulated credit of service tax paid on input services used in export services. In the case of refund of central excise duty on goods consumed within the country, it is the date of payment of duty. In the case of export of goods, the relevant date is the date of shipping bills. In the case of services rendered, the date on which services are rendered or the invoices are raised for same, or the amounts are realised by the service provider, as applicable, would be the relevant date.
Amendment to notification Notification No. 27/2012-CE (NT) dated 18.06.2012 by Notification No. 14/2016-CE (NT) dated 01.03.2016 is clarificatory in nature - Decided against the assessee.
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2016 (7) TMI 875 - CALCUTTA HIGH COURT
Visit of service tax officers to the premises of the assessee - Constitutional validity of Rule 5A(1) - Held that:- Upon hearing the parties, prima facie the Bench perceives the challenge to Rule 5A(1) to be well founded, as it seeks to override the section. It appears that Rule 5A(2) has been declared ultra vires by an Hon’ble Division Bench of the Delhi High Court [2016 (6) TMI 163 - DELHI HIGH COURT]. This Bench prima facie finds no reason to disagree with such decision. If the authorities cannot make any demand as envisaged in sub-rule (2), gaining access to any premises under sub-rule (1) may not serve any purpose.
In that view of the matter, the respondents are restrained from taking recourse to Rule 5A(1) against the petitioner, and the petitioner shall also not be under any liability to place books/accounts, etc. if any demand is made. The respondents shall, however, be free to take recourse to Section 82 of the Finance Act in accordance with law.
It further appears that summons have been issued to the petitioner requiring its presence at an office in Chennai with required documents. The petitioner shall be at liberty to respond to such summons and to make available the required documents. The respondents may proceed in accordance with law but no coercive action shall be taken against the petitioner without obtaining leave of the Court.
Interim order is passed in favor of petitioner assessee.
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2016 (7) TMI 874 - GUJARAT HIGH COURT
Levy of VAT and Service tax both on Supply of tangible goods service - Section 65(105)(zzzzj) of the Finance Act, 1994 - demand of service tax on lease charges received by the assessee - Held that:- Merely because the petitioner argues that not service tax but value added tax would be leviable since the title in the property does not pass on to the lesee would not be a ground to hold that the tax authorities cannot examine and entertain such a contention thus rendering them wholly without jurisdiction.
We may record that the competent authority, in the impugned order, has observed that the petitioner has voluntarily paid value added tax which would not automatically mean that service tax, if otherwise payable, cannot be recovered. Whether the petitioner has paid such tax voluntarily or upon coercion of the department are the issues which can be gone into in statutory appeals, if so filed. - In the result, petition is not entertained leaving it open for the petitioner to pursue statutory remedy.
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2016 (7) TMI 873 - GUJARAT HIGH COURT
Maintainability of writ petition - Demand of service tax - seeking permission to cross-examine the witnesses, which was not granted - Held that:- Only on the ground of alternative remedy, this petition is not entertained without expressing any opinion on the contentions of the petitioner on merits.
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2016 (7) TMI 872 - CESTAT MUMBAI
Waiver of penalty - Cenvat Credit - providing taxable services and trading activity - Cenvat Credit in relation to trading activity was proposed to be denied - Held that:- Though there is no escape from payment of cenvat on the non-taxable trading activity but to some extent, the Ld. Counsel is correct that the maintenance of account in this regard is difficult task. - the appellant has paid the entire cenvat credit on common input services even though some part of the input service is attributed to the taxable activity. The appellant also paid the interest. - the appellant has been able to show the reasonable cause for availing the cenvat credit attributed to the trading activity. - appellant is entitled for waiver of penalty imposed under Section 78. - penalty waived - Decided in favor of assessee.
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2016 (7) TMI 784 - BOMBAY HIGH COURT
Demand of service tax - (i) repair and maintenance of roads; (ii) repair and maintenance of airport runways; (iii) site formation activity undertaken at roads. - period from 2005-06 to 2009-10. - It was submitted that, commercial or industrial construction service was introduced as taxable service under the head “construction service” with effect from 10th September, 2004. The same service was renamed as “commercial or industrial construction service” with effect from 16th June, 2005. Though it refers to repair, alteration, renovation etc., but that does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels or dams. If that is excluded from commercial or industrial construction, then, the same cannot be taxed under another general category of management, maintenance or repair service.
Held that:- the definitions are for the purpose of understanding the taxable service provided or to be provided by a stock-broker, to a policy holder by an insurer, by an advertising agency, by a courier agency etc. and when it came to service in relation to management, maintenance or repair, the legislature was free to tax it. Merely because repairs of roads and airports is specifically excluded from the definition of “commercial or industrial construction” it could still be brought in under the category of “management, maintenance or repair service”. Ultimately, management, maintenance or repair is defined to mean any service provided by any person under a contract or an agreement for a manufacturer or any person authorised by him in relation to management of properties, whether immovable or not, maintenance or repair of properties, whether immovable or not or maintenance or repair including reconditioning on restoration, or servicing of any goods, excluding a motor vehicle.
Eventually, in inserting and incorporating definitions so as to understand taxable service if management, maintenance or repair is taken to be a distinct service and that aspect is excluded from the definition of the term “commercial or industrial construction service”, then, it is not a case of redundancy or rendering any provision nugatory, but being specific and clear. Once the matter is understood in this manner, then, the submission of Mr. Sridharan, based on the judgment of the Hon'ble Supreme Court of India in the case of Tahsildar Singh (supra) cannot be accepted.
Mr. Sridharan forgets that we are not construing as to whether airport is covered by section 98 of the Finance Act, 1994. We are concerned here with appellant’s specific case. Some of the services provided included extension, strengthening of runways, taxi ways, apron taxi ways. We are concerned with these services. Whether these services are falling in the category of maintenance and repairs of road is the question before us. We do not think that we are required to find out whether definition of “airport” itself includes runways and even if they are so included, whether those are contemplated by section 98. Section 98 refers to building services relating to management etc. of non commercial Government buildings. We are not construing the ambit and scope of such services. We are concerned with the excision from the definition of this service the maintenance of road, repair to runway etc. That exclusion is clear.
As a result of the above discussion, we do not find any merit in the appeal. Once the order impugned in the writ petition is a consequential one and follows the tribunal’s order under appeal and is delivered and pronounced on remand, then, for the very reasons, which we have assigned for upholding the conclusion of the tribunal would cover the outcome of the writ petition. If the tribunal’s order dated 29th May, 2013 is upheld, then, this order also must prevail. Consequently, the writ petition must also fail. Rule is discharged.
Decided against the appellant.
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2016 (7) TMI 783 - SC ORDER
Condonation of delay - HC [2014 (7) TMI 828 - MADRAS HIGH COURT] confirmed the decision of Tribunal and declined to condone delay holding gross negligence on part of assessee - Apex Court dismissed the assessee appeal on the ground of delay as well as on merits.
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2016 (7) TMI 782 - KERALA HIGH COURT
Levy of service tax on sub-contractor - It was submitted that, invoice would indicate that service tax was levied on the bill raised by the petitioner on the 3rd respondent. Therefore the petitioner took a stand that no service tax need be levied on the bill raised by the 4th respondent on the petitioner. - Held that:- This court is of the considered opinion that in view of the specific clarifications regarding 'input service' rendered by the sub-contractor, which is used by the main service provider for completion of the work, it cannot be held that the sub contractor is not liable to pay service tax for the services provided by him. However it is for the adjudicating authority to decide on verification of records regarding the discharge of liability of 'service tax' and to decide with respect to the credit relating to the 'input service'.
Necessary decision has to be taken by the 1st respondent considering the claim for the credit based on remittance of the entire tax liability by the 1st respondent. - In view of the interim order continued during pendency of this writ petition, no demand can be enforced against the 4th respondent for payment of service tax with respect to the contract in question, till the adjudication is finalised. - Decided partly in favor of petitioner.
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2016 (7) TMI 781 - CESTAT KOLKATA
Waiver of pre-deposit - it was submitted that inspite of promptly making the payment the First Appellate Authority had continued to upheld the penalties imposed upon the Appellant. - Held that:- It is observed that the Appellant paid service tax amount demanded only after the show cause notice was issued. At the same time the service tax demand was recovered from the service recipients as argued by the Ld.A.R. The Appellant has not been able to make out the prima facie case for complete waiver of the confirmed dues/penalties and is accordingly required to be put to certain conditions. - stay granted partly.
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2016 (7) TMI 780 - CESTAT HYDERABAD
Refund of service tax paid on BAS services - commission paid to foreign agents for the taxable service of business auxiliary services availed for export of goods - Refund claim was rejected on the ground taht, appellant had not complied with or fulfilled any of the conditions prescribed under the applicable Notification No. 18/2009-ST, dated 07-07-2009 and instead had claimed refund under Notification No.17/2009-ST which was not at all applicable in respect of the BAS provided by foreign agents.
Held that:- The procedures prescribed in the notification are to facilitate verification of the claims. Since there is no dispute with regard to the export made or the service tax paid, the non-fulfilment of the conditions in my view is condonable. - the non-fulfilment of the conditions is only a procedural lapse and can be condoned. - Refund allowed
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2016 (7) TMI 779 - CESTAT AHMEDABAD
Cenvat Credit - eligible input services - appellant have taken membership of Mumbai Cricket Association for the purpose of availing the facility of the club such as Waiting Rooms, Conference Hall etc., since they did not have an office in Mumbai. - Held that:- Mumbai Cricket Association has charged Lifetime Membership Fees to the appellants and it is this amount which the appellant is claiming as input service credit. We find force in the arguments of the learned Authorised Representative that the same cannot be treated as charges related to business activities for the output service provided by the appellant, namely Chartered Accountant Services. - Credit not allowed - Decided against the assessee.
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2016 (7) TMI 727 - GUJARAT HIGH COURT
Bail application - Criminal prosecution for non payment of service tax - monetary jurisdiction - It was submitted that offence under section 89(1)(d)(ii) of the Finance Act has been inserted to be cognizable and punishment has been enhanced from three years to seven years and made the offence non-bailable. Thus, on and from 10.5.2013 if a person has collected any amount as service tax but failed to pay the amount so collected to the Central Government and if it exceeds ₹ 50.00 lakhs, then only the accused will be liable for punishment upto seven years. Drawing attention of this Court to the break-up of service tax liability shown by the Department for the period 2013-2014 till 31.12.2014, service tax liability even assessed by the Department was ₹ 30,32,939/- only and thus, no provision under section 89(1)(d)(ii) of the Act could have been resorted to by the authority.
Held that:- It is important to note that if at all initial partial payment had been made to come out of jail, it cannot be said to be compliance of bail conditions by the applicant and thus, learned Additional Sessions Judge had passed impugned order which is legal and proper and it does not warrant any interference in exercise of revisional jurisdiction more particularly when it is noticed that by one way or the other, the applicant is prolonging the time with calculative move just not to pay the amount which had prima facie appears to have been pocketed. It is also to be noted that the interim order passed by this Court dated 26.10.2015 in this Criminal Revision Application No.566 of 2014 has also not been complied with. Under the circumstances, no leniency can be shown to such an applicant who only desires to prolong the issue. Hence, this revision application deserves to be dismissed. - Decided against the applicant.
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2016 (7) TMI 726 - CESTAT HYDERABAD
Extended period of limitation - Banking and other Financial Service - adjustment of excess payment of service tax - service tax alleged to have been adjusted without adhering to the provisions of Rule 6(4A) and 6(4B) of Service Tax Rules, 1994 - Held that:- suppression of facts etc. cannot be established and the demand invoking extended period is not sustainable as the same is hit by limitation of time - Decided against the revenue.
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2016 (7) TMI 725 - CESTAT HYDERABAD
Refund of accumulated cenvat credit - Rule 5 of CENVAT Credit Rules, 2004 - eligible input services - nexus with the output service. - export of services - Held that:- The rent rate for premises rented as well as the charges to be paid for common area maintenance are contained in the same agreement and on taking the premises on rent, the appellant has to pay charges for common area maintenance also. - The appellant has received manpower recruitment services and training services for providing output services. Both these services find place in the inclusive part of the definition of 'input service' and therefore denial of refund is not legal and proper. - Credit allowed.
Club membership services - It is true that club membership services fall in the exclusion part of the definition of input service. Therefore I hold that appellant is not eligible for refund of credit/service tax paid on these services. - Visa charges was explained by the learned counsel for appellant to be service tax paid on services consumed for visa interview of employees to go abroad. The services were availed from M/s. OSI Consulting Services. - these services are not eligible for refund
Decided partly in favor of assessee.
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2016 (7) TMI 658 - CESTAT HYDERABAD
Extended period of limitation - Validity of SCN issued after one year from the date of knowledge - Maintenance & repair services - failure to discharge service tax liability or file ST-3 returns. - Held that:- In the show-cause notice, it is not stated that there was delay on the part of appellant in furnishing the details necessary for computation. There is no whisper in the show-cause notice that due to delay caused on the part of appellant, it was not possible to collect details. In any case, after issuance of summons on 02/09/2008, the statement of Mr. Viswanathan was recorded on 15/09/2008. Therefore it can be said that Department had acquired knowledge at least on 15/09/2008. The show-cause notice issued beyond the period of one year from the date of acquiring knowledge is time barred. As there is no allegation in the show-cause notice that appellant caused delay in furnishing information or did not co-operate with the investigation/inquiry, the findings of the Commissioner(Appeals) that the details furnished was insufficient to compute liability is based on mere assumptions. It is proved that Department acquired knowledge on 15/09/2008.
Demand set aside - decided in favor of assessee.
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