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Service Tax - Case Laws
Showing 121 to 140 of 2424 Records
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2017 (12) TMI 771 - CESTAT BANGALORE
Change of classification of services - Held that: - there cannot be different classification for the same services at the end of service provider and at the end of service recipient - in the case of M/s. Piem Hotels Ltd, [2016 (4) TMI 290 - CESTAT MUMBAI], the Tribunal has held that it is well settled proposition of law that jurisdictional officer at recipient end are not empowered to question or change the classification or valuation at supplier's end - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 770 - CESTAT BANGALORE
Penalty u/s 78 - it was alleged that assesse had not paid service tax on reimbursement charges and have availed ineligible CENVAT credit - Held that: - I find no infirmity in the impugned order whereby the Commissioner (A) has observed that there is no mens rea in the present case to suppress the facts and therefore, the Commissioner (A) has rightly observed that there is a reasonable cause for waiver of penalty by extending the benefit of Section 80 of the Finance Act, 1994, which was prevalent during the material point of time - appeal dismissed - decided against Revenue.
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2017 (12) TMI 769 - CESTAT BANGALORE
Refund of service tax paid, which was not liable to be paid - denial on the ground of unjust enrichment - Held that: - the appellants are not liable to pay service tax in view of the Circular No.108/02/2009-ST dt. 29/01/2009 - the appellant has produced a certificate from the Chartered Accountant which has categorically certified that incidence of duty has been borne by the appellant and its incidence has not been passed to any other person.
The Commissioner has not discussed the certificate issued by the Chartered Accountant at all and has also not disputed its authenticity. Therefore Chartered Accountant certificate is a valid proof for the determination of an issue of unjust enrichment.
The appellant has proved that the incidence of duty has not been passed on to any other person and has been borne by him alone and therefore the refund claim is not hit by unjust enrichment - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 768 - CESTAT BANGALORE
100% EOU - Refund of unutilized CENVAT credit - various input services - denial on account of nexus - export of services - Held that: - all the impugned services on which refund has been denied fall in the definition of ‘input service’ as held in various decisions - most of the services have been held to be input services in appellant’s own case - with regard to wrong quantification of refund amount has observed that the original authority shall examine this aspect in de novo proceedings and shall apply the formula correctly while computing the refund claim amount - appeal allowed by way of remand.
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2017 (12) TMI 724 - CESTAT ALLAHABAD
Business Auxiliary Services - whether demand of service tax amounting to ₹ 10,22,575/- have been rightly made on the brokerage earned for providing taxable services under the head Business Auxiliary Service for the period October, 2009 to June, 2012 and further July, 2012 to March, 2014? - penalty - Held that: - Nomenclature in accounts is not material to classification of service event, taxable entry specifies legislative intent. The description of taxable service in the Act as well as in any of the terms therein are primary determinant for taxation of any service - in the course of audit it was seen that the assessee had ocean freight surplus and it was explained that these profits are arising from purchase and sale of space or slots for ocean transport of container and the same was proposed to be taxed under BAS, this Tribunal held, the notional surplus earned thereby arises from purchase and sale of space and not by acting for a client who has space or slot on a vessel.
The appellant - assessee have taken adequate measures for meeting the service tax liability, being the facts on record that there was defalcation of the amounts by its staff, drawn towards payment of service tax is not disputed and further appellant have on discovering the defalcation by its employee, deposited the tax forthwith with interest - the penalty u/s 78(1) is not tenable.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 723 - CESTAT MUMBAI
Interpretation of statute - clearing and forwarding services - scope of service - case of appellant is that the activity of clearing and forwarding consisting of two activities i.e. clearing and forwarding when carried out cumulatively and simultaneously, that only is taxable - Held that: - It is inconceivable how an activity not being covered by the fold of law shall be taxable beyond its mandate - When law prescribed certain activity shall only be taxable on occurrence of taxable event, without any evidence to that effect, there is no presumption in taxation.
The term clearing and forwarding would cover only those activities which pertain to clearing of the goods and forwarding thereof to a destination, under the directions of the principal. Beyond this, no other activities shall be taxable under the above said taxing entry.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 722 - CESTAT BANGALORE
CENVAT credit - service tax paid to various insurance companies for Group Insurance Scheme of employees - case of Departmnet is that the insurance of employees is only a welfare measure and has no relation to the manufacture of their final product and cannot be treated as an input service - Held that: - even after the amendment to the definition of input service w.e.f 1.4.2011, these services on which CENVAT credit has been denied fall in the definition of input service because they are not primarily for the personal use which has been excluded from the definition - the service charge and the service tax on insurance of plant and machinery, goods in transit, cash in transit and insurance on vehicles and laptops and also group insurance of all employees against sickness being an integral part of the manufacturing business and the same form part of the manufacturing cost of the final product and used in or in relation to the manufacture of final product - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 721 - CESTAT CHENNAI
SCN on legal heir of proprietor after the death of proprietor - Whether the SCN can be validly issued on the legal heir of the proprietor for duty allegedly short paid on the ground that his son legal heir is carrying the same business after the death of proprietor under the same name and style?
Held that: - the proprietor Birendra Singh, with respect to whom SCN was issued after his death, purportedly on the legal heir Shri Jasjit Singh is ab-initio avoid - it is of no consequence or help to the revenue that the legal heir Shri Jasjit Singh have also taken registration under the same name and style and is carrying on similar business. The said proprietorship concern of Shri Jasjit Singh is totally different from the earlier proprietorship concern of his late father Shri Birendra Singh.
The Revenue have erred in issuing SCN on him after the death of late Birendra Singh - The Adjudicating authority is directed to refund the amount of ₹ 38,24,602/- collected from Shri Jasjit Singh with interest - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 720 - CESTAT BANGALORE
Refund claim - denial on the ground that the FIRCs contains an address different from that of claimant STPI and also the FIRCs records the remittances received as advance and therefore, the receipt of remittances cannot be correlated - Held that: - it is not the case of the department that the appellant has not exported the service whereas the appellant has proved that there has been export of service and FIRCs have been received in advance, which has been accounted for in the books of accounts. Further, they have also produced the certificate of Chartered Accountant to the effect that the remittances were received. Further, I find that when the service was rendered, there was no objection by the department that the said service is not an export of service and they have raised the objection only when the refund was claimed. Further, I find that the allegation that FIRCs only talks about advance and thus, the correlation cannot be done is untenable when the exporter has declared that FIRCs are towards the export effected and that the foreign inward remittances has been received, which is not in question or doubt - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 719 - CESTAT MUMBAI
Reverse Charge Mechanism - Business Auxiliary Service and Business Support Service received from service provider abroad - validity of SCN - Held that: - Application of mind to the allegation raised in show-cause notice is necessary and learned authority should have read that in the spirit of law and drawn appropriate conclusion. That being absent in his order and he having acted contrary to law. Revenue says that nothing is possible to visualise as to the discharge of tax due by the respondent. Learned adjudicating authority without application of his mind, went against law and aggrieved Revenue.
Factual aspects of the case argued by ld. Representative for Revenue warrants to direct learned adjudicating authority to readjudicate the matter in the light of allegation made in the show-cause notice in terms of para 2, 9 to 11 thereof. He shall consider the replies given by the respondent and also the figures submitted and pass appropriate order following due process of justice. At the every stage of adjudication respondent is entitled to fair trial.
Petition disposed off.
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2017 (12) TMI 718 - CESTAT BANGALORE
CENVAT credit - penalty u/r 15(3) - N/N. 30/2012-ST dated 20.06.12, read with Rule 2(d)(1) (F) (b) of STR, 1994 - Held that: - the disallowance of cenvat credit of ₹ 8,07,065/- was wrongly demanded by the Commissioner because the appellant had paid 100% service tax to the service provider and thereafter availed the cenvat credit therefore asking the appellant to pay the cenvat credit of ₹ 8,07,065/- is wrong and not sustainable in law. The learned Commissioner has not considered the factum of payment of 100% service tax on the services received by the appellant from the service provider. Further the question of payment of interest under Section 75 and the penalty u/r 15(3) of the CCR is not justified as the appellants have not committed any default - the service tax has already been paid and demanding the same again is wrong and illegal - the service tax has already been paid and demanding the same again is wrong and illegal and therefore the impugned order is not sustainable in law and the same is set aside - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 717 - CESTAT BANGALORE
Non-payment of service tax - tax collected but not deposited - penalty - Held that: - appellant has collected the service tax but did not deposit the same. Therefore, he is liable to pay the penalties under various provisions of the Finance Act, 1994 - appeal dismissed - decided against appellant.
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2017 (12) TMI 716 - CESTAT BANGALORE
Validity of SCN - whether the SCN is time barred? - service tax collected but not paid - Held that: - immediately on pointing out by the audit, the respondent paid entire amount of service tax along with interest and even excess amount of service tax was paid by the respondent. Further, it has been explained by the respondent that why they could not pay service tax in time as they were regularly paying their service tax liability for the last four to five years - demand with interest upheld.
Penalty - Held that: - as the respondent is not disputing their service tax liability along with interest. The same has been accepted by the respondent. Further, the excess amount paid by the respondent has been refunded; in that circumstance, the provisions of Section 73(3) of the Act are invokable, therefore, no penalty is imposable on the respondent.
Appeal allowed in part.
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2017 (12) TMI 715 - CESTAT BANGALORE
Refund of unutilized CENVAT credit - input services - exclusion of the words activities relating to business from 1.4.2011 - Held that: - even after the amendment in the definition of input service, there is no requirement of correlation between the input and output services. Further, in all the decisions relied upon by the appellant cited supra, expenses incurred towards maintenance of building has been considered to be an input service as per Rule 2(l) of CENVAT Credit Rules because it is directly connected with the output service - expenses incurred towards maintenance of building has been considered to be an input service as per Rule 2(l) of CENVAT Credit Rules because it is directly connected with the output service. Further, the expenses towards maintenance of building forms part of the rent agreement and therefore, there is a nexus between the input service and the services exported - appeal allowed - decided in favor of appellant.
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2017 (12) TMI 714 - CESTAT BANGALORE
Short payment of service tax - short paid amount was paid on being pointed out - demand of interest with penalty u/s 78 - Held that: - the appellant has paid the service tax along with interest much before issuance of SCN and therefore SCNshould not have been issued to the appellant in view of section 73(3) of the FA, 1994 - there is no suppression of material fact on the part of the appellant and therefore the imposition of penalty u/s 78 is not warranted.
Also, it is a case of revenue neutrality because the appellant are entitled to take credit of service tax paid by them under the provisions of 66A of FA, 1994.
Appeal allowed - decided in favor of appellant.
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2017 (12) TMI 713 - CESTAT BANGALORE
Refund of unutilized CENVAT credit - N/N. 5/2006 CE (NT) dated 14.3.2006 - various input services - denial on account of nexus - Held that: - the appellant is entitled to CENVAT credit of ₹ 21,31,710/- for which he has produced the invoices on record - also the appellant is entitled to the CENVAT credit of ₹ 2,75,224/- with regard to various input services by holding that the same fall in the definition of input services under Rule 2(l) of CCR - the appeal of the appellant is partially allowed to the extent of ₹ 24,06,934/- out of ₹ 24,90,499/-.
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2017 (12) TMI 687 - MADRAS HIGH COURT
Classification of services - business of Structural Glazing and Cladding - whether the directions issued by the Tribunal are mandatory in nature for the Commissioner (Appeals) to comply with the same scrupulously? - Held that: - Useful reference can be made to the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Kamalakshi Finance Corporation [1991 (9) TMI 72 - SUPREME COURT OF INDIA] wherein it has been held that directives of the Superior Authorities are binding on the Lower Authorities. In the light of the above dictum, the Commissioner (Appeals) is bound by the directions issued by the Tribunal and is required to consider the submissions made by the petitioner - matter is remitted back to the respondent for a fresh consideration.
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2017 (12) TMI 685 - MADRAS HIGH COURT
Writ of Prohibition - tour operator services and/or travel agent services - if the petitioners have rendered tour operator services and/or travel agent services to other than those, who are either Haj or Umra pilgrims, the second respondent has to examine as to how such transactions have to be assessed? - Services rendered to Indian Haj and Umra pilgrims, who go to Saudi Arabia - petitioners' case is that such services are fully exempt by relying upon the Notifications dated 30.10.2009 and 20.8.2014 - Held that: - This Court does not wish to express anything on the merits of the matter and it is made clear that a decision would be taken by the second respondent in accordance with law after perusal of the documents produced by the petitioners. It is reiterated that on production of the records, the second respondent shall examine as to what are the types of services rendered by the petitioners and in case the second respondent is of the opinion that the services rendered by the petitioners to the Indian Haj and Umra pilgrims are liable for service tax, it is needless to state that the second respondent shall afford an opportunity of personal hearing by way of issuing a show cause notice, so that the petitioners will be able to canvass the contentions raised before this Court in these writ petitions.
This Court holds that the prayer sought for in these writ petitions is premature - petition dismissed - decided against petitioner.
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2017 (12) TMI 683 - CESTAT CHENNAI
Business Auxiliary Service - marketing services in relation to sale of paper bags - Held that: - the appellant has claimed that they are eligible for CENVAT credit on the service tax paid by Shri V.M. Radhakrishnan for the commissions paid by the appellant to him. In that case, the services rendered by Shri V.M. Radhakrishnan is an input service for appellant. If this is to be accepted then the case of appellant that part of the commission pertains to Shri V.M. Radhakrishnan is incorrect - the appellant is liable to pay the service tax on the entire commission received by him.
CENVAT credit of service tax paid by Shri V.M. Radhakrishnan - Held that: - The documents placed require verification and for this limited purpose, matter is remanded to the adjudicating authority.
Penalty u/s 76 and 78 - Held that: - It is clear that the appellant was holding a bonafide belief that they are not liable to pay service tax. In fact, they had discharged the service tax other than the amount of commission received by Shri V.M. Radhakrishnan - the appellant has put forward a reasonable cause for not discharging service tax liability and there is sufficient ground to invoke section 80 of the FA, 1994 - penalty upheld.
Appeal allowed in part and part matter on remand.
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2017 (12) TMI 682 - CESTAT HYDERABAD
GTA services - Reverse Charge Mechanism - CEBC Circular dated 17.12.2004 - Held that: - Since the service tax liability due from the appellant stands deposited with the Govt of India by RTCL, as per the CBEC Circular, no demands can be raised on the appellant - demand set aside - interest also set aside - appeal allowed - decided in favor of appellant.
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