|
Advanced Search Options
Service Tax - Case Laws
Showing 21 to 40 of 346 Records
-
2018 (9) TMI 1723 - CESTAT CHENNAI
Classification of Services - use of cranes and torex with operator, manpower and supervision, either on single use basis or on monthly or specified period basis - whether classified under Business Support Service or Supply of Tangible Goods service?
Held that:- Though the definition of BSS is no doubt an inclusive definition, it only means that the type of activities that would come within the fold of that category will necessarily have to be of the kith and kin or similar to the examples listed therein - Thus, for any other activity to find a fit within this definition of ‘BSS‛ such activity should pertain to the same class or category or genus as the list of examples given in the definition. This is the basic all important maxim of ejusdem generis.
By no stretch of imagination can renting of cranes be called an activity of the same genre as the other examples listed in the definition of ‘Business Support Service‛ in Section 65 (104c) of the Act - appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1722 - CESTAT CHENNAI
Renting of Immovable Property Service - Rents Received by the appellants after 01.06.2007 - Held that:- If the amount includes rents pertaining to the period prior to 01.06.2007, it can be easily verified by looking into the payments received by the appellants after 01.06.2007 - appellants have to be given one further chance to establish this plea raised by them - the issue is remanded to the adjudicating authority for re-consideration.
Real Estate Agents Service - demand has been defended by the appellants saying that the transaction does not involve any activity which attracts “Real Estate Agents Service” - Held that:- The appellants have paid Income-tax on Capital Gains for the amount received from M/s. CCCL. Thus, it can be seen that it is a transfer of right/interest in property by the appellants to purchaser M/s. CCCL. The said transaction cannot in any way take the colour of “Real Estate Agents Service” - demand set aside.
Business Auxiliary Service - sale of shares by appellants to M/s. M/s. Rattha Citadels OMR Apart Hotel Pvts Ltd. - main ground for alleging that the transaction would fall within the “Business Auxiliary Service” is that the shares of face value of ₹ 10/- has been sold by the appellants at a premium of ₹ 21.80/- per share, when the company was reeling under financial loss - Held that:- Whatever be the circumstances under which the shares were sold or the premium of the shares was fixed between the parties, the transaction of sale of share in no way can be considered as an activity promoting the business of the purchaser of the shares. It is indeed Sale of Shares and, therefore, the demand on this count cannot sustain - demand set aside.
Input tax credit - input services used in the construction of buildings - denial on account of nexus - Held that:- This issue has been settled in the case of M/s. Sai Samhmita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] where the Hon'ble High court in the said decision held that the credit of input services used for setting up a warehouse for providing the Output Service of “Storage and Warehousing Services”, was admissible - disallowance of credit of input service used for Construction of buildings is unjustified.
Appeal allowed in part and part matter remanded.
-
2018 (9) TMI 1721 - CESTAT CHENNAI
Reverse Charge Mechanism - Supply of Tangible Goods Service or deemed sale - Department took the view that the foreign lessor has supplied tangible goods to appellants on lease; that lessor therefore rendered “Supply of Tangible Goods Service” as per section 65 (105) (zzzzj) of Finance Act, 1994; hence appellant as recipient of service are liable to pay service tax on reverse charge basis - Section 66A read with Rule 2 (1) (d) (iv) of Service Tax Rules, 1994 - non-inclusion of TDS amount in taxable value - wrong availment of Credit in respect of excise duty paid on motor vehicles - penalties.
Held that:- The lease agreement between EAT and the appellant is one wherein the right of possession and control of the aircraft has been bestowed on the appellant and not retained with the lessor. This being so, the ingredients of “Supply of Tangible Goods Service” requiring exigibility to service tax by the Finance Act, 1994 are not present in this transaction. In consequence, the monetary consideration paid by the appellants to EAT cannot be considered as value of “Supply of Tangible Goods Service” and tax demanded on the same as has been done in the impugned orders. - service tax levy is not attracted.
Reliance placed in the case of POWER MAK INDUSTRIES, POWER MAK PVT. LTD. VERSUS CCE, C&ST, HYDERABAD-I [2018 (2) TMI 1415 - CESTAT HYDERABAD], where it was held that the impugned transaction involving supply of DG sets on hire basis to various hirers is nothing but supply of tangible goods with transfer of both possession and control of the goods to the users of the goods. These transactions have been ruled as deemed sale of goods for the purpose of APVAT Act by the concerned Advance Ruling Authority. Appellants have also been discharging VAT on the hire charges under APVAT Act. Hence, this is the case of supply of tangible goods for use, with legal right of possession and effective control vesting with the hirer, required to be treated as deemed sale of goods, hence cannot be considered as supply of tangible goods for use of service for the purposes of Section 65(105) (zzzz) of the Finance Act, 1994 for the period upto 01-07-2012 or as taxable service for the purpose of Section 65B (44) of the Finance Act, 1994 after 01-07-2012.
It was also held in the case that the terms and conditions stipulated in the agreement, lead to the conclusion that the transaction envisaged in the agreement is one of transfer of right to use which is a deemed sale under Section 2(24) of the Maharashtra Value Added Tax Act, 2002. The Finance Ministers speech and the budget instructions issued by the C.B.E. & C. also clarify that if VAT is payable on the transaction, then service tax levy is not attracted.
The assessees activity of giving various equipments on hire does not fall under the category of Supply of tangible goods for use, hence the same is not liable to service tax w.e.f. 16.05.2008.
Penalties in respect of non-inclusion of TDS amount in taxable value and wrong availment of cenvat credit on motor vehicles - Held that:- There is no malafide in these inadvertencies by the appellants. Hence while not interfering with these tax demands, we hold that imposition of penalties in all these tax demands are therefore an overkill and requires to be set aside.
Appeal allowed in part.
-
2018 (9) TMI 1720 - CESTAT CHENNAI
Security agency service - appellants had shown income by way of contract amounts received in for the years 2002-03 2003-04, 2004-05 and 2005-06 which allegedly was not declared in their statutory ST-3 returns - Department took the view that the said contract amount received and shown as income in the gross amount is nothing but charges received for security agency services rendered and provided by them - principles of natural justice.
Held that:- In para 9.4 the authority has referred to the fact of having sent the copies of bills produced by appellants to the jurisdictional Range Superintendent; that the jurisdictional Range Superintendent made verification with M/s. Achariya Educational Public Trust; that it has been clarified by the said institution that appellants have provided services of security force and not manpower supply. There is no indication as to whether copy of the said report was provided to the appellant to offer their response and or rebuttal of the same. This being so, it is found that the basic principles of natural justice have been given the go by.
Interests of Justice will require that the appellant is given a copy of the said verification report and also given sufficient opportunity to offer their comments / rebuttals on the same within a reasonable time - appeal allowed by way of remand.
-
2018 (9) TMI 1719 - CESTAT CHENNAI
Valuation - inclusion in assessable value - It is alleged that in the course of providing logistics services, they incurred various expenses under heads, viz., delivery order fees, documentation fees, LCL Charges, BL Charges, etc., and besides this, they also collected ocean / air freight from the clients, which were sought to be added to the assessable value - Classification of services.
Held that:- The Chennai Bench of CESTAT has addressed this very same dispute in Bax Global India Ltd. Vs. Commissioner of Service Tax, Chennai [2017 (9) TMI 1264 - CESTAT CHENNAI], where on the same issue, in appellant s own case, BAX GLOBAL INDIA LTD. Versus COMMISSIONER OF SERVICE TAX [2007 (10) TMI 132 - CESTAT, BANGALORE] the Tribunal held that amount collected by CHA like cartage revenue, MSIL/JWG charges, due carrier, documentation charges etc. are for services rendered by third party and the appellant initially make payment for the activities on behalf of the client and later collected the amount from the client and that these are actually reimbursable expenses and not relating to the CHA activities. Even in respect of air freight, the Tribunal held that these charges cannot be said to be related to the activities of CHA.
Appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1718 - CESTAT CHENNAI
Works Contract Service - Construction of Residential Complex Service - appellant were paying service tax under Construction of Residential Complex Service from 16.06.2005, however stopped doing so from 01.08.2006 considering the activities to be “Works Contract” based on CBEC circular dt. 1.8.2006. Assessee resumed payment of service tax under works contract w.e.f. 1.6.2007 availing the benefit of reduced liability under Works Contract (compensation scheme for payment of service tax) Rules, 2007 - demand of service tax for different periods under different heads - Composition Scheme - CENVAT Credit.
Period up to 1.6.2007 - Held that:- As the law laid down by the judgment of the Hon’ble Apex Court in the case of L&T Ltd. [2015 (8) TMI 749 - SUPREME COURT], there will not be any service tax liability on the assessee. Appeals of the assessee on this score succeed - demand set aside.
Period from 1.6.2007 to 1.7.2010 - Held that:- The CBEC in Circular dt.10.02.2012 reiterating its earlier circular of 29.01.2009 has clarified that for the period 1.7.2010 such services provided by the builders / developers will not be taxable - services prior to 1.7.2010 also not taxable.
Period w.e.f. 1.7.2010 - composition scheme under the said Rule 3 (3) - Held that:- The adjudicating authority has denied the benefit of the composition scheme only on the preliminary ground that the assessee has not exercised option before “due date of payment of tax” - denial of compensation scheme to the assessee on the said ground is not justified and improper and therefore requires to be set aside - demand set aside.
CENVAT Credit - period 1.6.2005 to 1.7.2010 - Held that:- Appellant had paid service tax - Hon’ble Apex Court in the case of Punjab Tractors Vs CCE Chandigarh [2005 (2) TMI 141 - SUPREME COURT OF INDIA] have held that when duty is paid by the assessee even on exempted goods, modvat credit availed and reversed at the time of clearance of the final product cannot be demanded - credit remains allowed.
Input service credit - duty paying invoices - denial also on the ground that related invoices did not bear invoice number and / or date - Going by the provisions of Rule 9 (2) of CCR 2004, as also plethora of decisions of higher appellate forums on this issue, these discrepancies in the credit availing documents are very much condonable and should be considered as curable defect only - credit allowed.
Appeal allowed in toto.
-
2018 (9) TMI 1717 - CESTAT CHENNAI
Valuation - Clearing and Forwarding Agency Service - inclusion of reimbursable expenses in assessable value - Rule 5 of the Service Tax (Determination of Value) Rules, 2006.
Held that:- The Hon’ble Supreme Court in the case of M/s. Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT OF INDIA] after analyzing the scope of Rule 5 of the Service Tax (Determination of Value) Rules, 2006, has held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax.
In the case on hand, the lower authorities have solely relied upon Rule 5 of the Service Tax Rules, 2006 to say that any expenditure or cost incurred by the service provider in the course of providing taxable service of such expenditure or cost shall be treated as consideration which shall be included in the value for the purposes of charging service tax and this was in terms of Section 67 of the Finance Act which prescribed the value of payment of service tax which is on the gross amount by the service provider - the findings of the lower authorities are clearly incorrect and same is not sustainable.
Appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1716 - CESTAT CHENNAI
Valuation - Banking and Other Financial Services - inclusion of transaction charges in assessable value - Held that:- The matter has been addressed by the Tribunal in the case of First Securities Pvt. Ltd. Vs CST Bangalore [2007 (6) TMI 33 - CESTAT, BANGALORE] wherein it was held that value of such taxable services in respect of stock brokers will not include transaction charges and handling charges - such transaction charges cannot form part of the taxable value - demand set aside.
CENVAT credit - input services - insurance of the employees - food charges - subscription - books / periodicals - travelling expenses - Held that:- All these credits relate to the period prior to 01.04.2011, only after which date, the definition of ‘input service’ has been made narrowed and certain exclusions also included in the definition - the issue decided in the case of CCE Nagpur Vs Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT], where it was held that the definition of "input service" is very wide and covers not only services, which are directly or indirectly used in or in relation to the manufacture of final products but also includes various services used in relation to the business of manufacture of final products, be it prior to the manufacture of final products or after the manufacture of final products - credit allowed.
CENVAT credit - duty paying invoices - credit availed on the basis of debit notes raised by an associate company M/s. Cholamandalam DBS Finance Ltd. for common expenses such as car parking expenses, water and electricity expenses, coffee and stationery expenses etc. - Held that:- Hon’ble High Court of Rajasthan in the case of CCE Jaipur Vs Bharti Hexacom Ltd. [2018 (6) TMI 435 - RAJASTHAN HIGH COURT] has held that cenvat credit can be allowed even on debit notes - credit allowed.
Appeal dismissed - decided against Revenue.
-
2018 (9) TMI 1715 - SETTLEMENT COMMISSION, KOLKATA
Application before Settlement Commission - maintainability of adjudication order - Section 32E(1) of the Central Excise Act, 1944 - the Commissionerate had held that the adjudication order was passed prior to filing of the settlement application and accordingly, it is not maintainable under Section 32E(1) of the Central Excise Act, 1944 - Mining Services - It is alleged that the applicant was not discharging their Service Tax Liability on the Mining of Mineral, Oil or Gas Services even though they are registered for the above services - whether the settlement application is maintainable under Section 32E(1) of the Central Excise Act, 1944, read with Section 83 of the Finance Act, 1994, i.e. a valid application for settlement under Section 32E(1)?
Held that:- From the contents of Section 32E(1), it is clear that an assessee can make an application for settlement “before adjudication” - The expression “before adjudication” appearing in Section 32E of the Central Excise Act, 1944, has been explained by the Hon'ble High Court of Judicature at Hyderabad in M/S. CONCRETE CONSTRUCTIONS VERSUS THE UNION OF INDIA [2017 (5) TMI 98 - ANDHRA PRADESH HIGH COURT], where it was held that the term “before adjudication” as contained in Section 32E(1) refers to the adjudication by the competent authority bearing a date. The assessee has to file the settlement application before that date.
In the present case, there was no adjudication pending before the authority as on 23-6-2017. The adjudication upon disposal had been dispatched on 21-6-2017. In other words, on 23-6-2017 i.e. the date on which the settlement application was received, there was no adjudication pending. Hence the question of invoking provisions of Section 32E of the Central Excise Act, 1944, does not arise - In this case, the adjudication order was passed on 21-6-2017 with dated signature of the adjudicating authority, Commissioner, Service Tax, and was despatched on that day i.e. 21-6-2017. Therefore, the application for settlement filed on 23-6-2017 is not maintainable before the Settlement Commission under Section 32E(1) of the Central Excise Act, 1944.
The Commission finds that the case in respect of the present application has been filed after adjudication. Thus, this case does not fall within the meaning of “case” as defined in clause (c) of Section 31 of the Central Excise Act, 1944 - the present application is not maintainable and hence rejected.
-
2018 (9) TMI 1672 - BOMBAY HIGH COURT
Voluntary Compliance Encouragement Scheme (VCES) - Right to appeal - CESTAT dismissed the appeal on the ground that VCES being a self contained code under Finance Act, 2013 without any appeal provision in the scheme and that the appeal is not maintainable.
Held that:- The issue decided in the case of Narasimha Mills Pvt. Ltd. vs. Commissioner of C. Ex.(Appeals), Coimbatore, [2015 (6) TMI 787 - MADRAS HIGH COURT] where the Madras High Court, by specific observation, dismissed the appeal on the ground that there is no remedy of appeal in the scheme would be giving unfettered power to the authority and same is not acceptable.
There is no reason to adopt a different approach and view than the approach and view adopted by Madras High Court. - The CESTAT directed to hear the appeal afresh and pass appropriate orders on merit of the appeal.
Decided in favor of assessee.
-
2018 (9) TMI 1671 - CESTAT CHENNAI
CENVAT Credit - common input services used in dutiable as well as exempted services - non-maintenance of separate records - Rule 6(2) of CENVAT Credit Rules, 2004 - whether the demand can sustain and when the appellant has not followed the requirement of intimating the department about availing the option as to Rule 6(3A) of CENVAT Credit Rules, 2004? - Held that:- The demand is made only because they did not intimate the department that they are availing the option. The said requirement is only a procedural requirement, the Tribunal in the case of Mercedes Benz [2015 (8) TMI 24 - CESTAT MUMBAI] has held that the demand cannot sustain for such procedural lapse - demand cannot sustain - appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1670 - CESTAT CHENNAI
Construction of Complex Service - appellant executed works contract pertaining to construction of police quarters - Held that:- The appellant has provided construction activity for construction of police quarters which is owned by TNPHCL, which is a Government undertaking - The Tribunal in the case of M/s. SIMA Engineering Constructions [2018 (5) TMI 405 - CESTAT CHENNAI] has considered the very same issue and held to be not taxable - appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1669 - CESTAT CHENNAI
Valuation - Erection, Commissioning and Installation service - allegation is that the appellant has paid the service tax only on the civil construction part of the contract and that has artificially bifurcated the turnkey project into three separate contracts - Held that:- It is very much clear from the facts that the appellants had entered into different contracts with separate agencies - the issue decided in appellant own case [2018 (2) TMI 148 - CESTAT CHENNAI], where it was held that the appellant will be entitled to the benefit of abatement under Sl.No. 7 of the Notification ibid - the said allegation or the demand on this count cannot sustain and requires to be set aside.
Composition Scheme - procedural lapse - allegation is that the appellant cannot opt to pay service tax under the composition scheme for the reason that they have failed to file intimation prior to payment of service tax under the composition scheme for works contract service - Held that:- In Vaishno Associates [2018 (3) TMI 417 - CESTAT NEW DELHI], the Tribunal has considered the said issue and held that it is only a procedural one and that the substantial benefit cannot be denied for procedural lapse - demand do not sustain.
Appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1668 - CESTAT CHENNAI
Business Auxiliary Service - appellants are engaged in distilling and bottling of Indian Made Foreign Liquor (IMFL) which includes their own brand as well as brands owned by United Sprits Ltd., Bangalore - Department also took the view that the amount charged by appellants towards provision of the said service would be the value of taxable service; that they would not be eligible to avail exemption under Notification No.39/2009-ST dt. 23.09.2009 - Time Limitation.
Time Limitation - the issue in the present appeal is covered in by DAR No.4. This is a separate objection conveying that appellants had not complied with conditions of non-availment of cenvat credit and evidence showing value of inputs specifically in the invoices raised etc. hence they were requested to offer explanation in that regard along with contract / agreements, accounts relating to job work etc. - Held that:- Just because the two audit objections were conveyed in a single letter dt. 05.12.2013 by the department to the appellants, the fact of first show cause notice having been issued on earlier date for the first objection cannot be put forth as a ground that second SCN issued subsequently is barred by limitation - contention of applicant is rejected.
Taxability of activity of contract bottling - appellant has also contended that issue of taxability of activity of contract bottling is still pending before the Hon’ble Apex Court since appeal of International Spirits & Wines Association of India (ISWAI) [2016 (12) TMI 1739 - SUPREME COURT] - Held that:- N/N. 39/2009-ST concerns the manner of taxability of BAS provided by an assessee by way of manufacture or processing of alcoholic beverages for or on behalf of the service recipient. As per the notification for calculating taxable value, the value of inputs excluding capital goods, used for providing said service is to be excluded, provided the assessee satisfies the conditions (a), (b), (c) thereof; in particular, not taking any cenvat credit and there is documentary proof indicating the value of such inputs. Evidently then, the notification seeks to exclude predominant portion of the materials’ cost - In any case, it is found that the taxability of activity of contract bottling has already been confirmed by the High Court of Delhi in the Carlsberg India case [2016 (8) TMI 250 - DELHI HIGH COUR].
The appeal filed by ISWAI has only been admitted by the Hon’ble Apex Court. However, no stay on taxability has been ordered by the Hon’ble Apex Court. Hence this contention of the appellant also does not stand to scrutiny and is therefore rejected.
Benefit of N/N. 39/2009-ST - Reversal of CENVAT Credit alongwith Interest - Held that:- The Hon’ble Supreme Court in Chandrapur Magnet Wires [1995 (12) TMI 72 - SUPREME COURT OF INDIA] has held that reversal of modvat credit is permissible to avail exemption - thus, the benefit of Notification No.39/2009-ST dt. 23.09.2009, which otherwise mandates non-taking of credit for duty exemption, will now become available to the appellant.
However, appellant shall pay up the interest liability on the quantum of credit availed under the Cenvat Credit Rules, 2004 during the period of dispute within a period of four weeks, only after which the matter shall be taken up for de novo adjudication as ordered by the adjudicating authority.
Appeal disposed off.
-
2018 (9) TMI 1667 - CESTAT CHENNAI
Business Auxiliary Service - engagement of agents in foreign countries by the appellant for promoting, sales, securing orders - Held that:- This Tribunal in the case of Maxican Exports Vs. Commissioner of Central Excise, Tiruchi [2018 (8) TMI 819 - CESTAT CHENNAI], where it was held that Service tax if any payable under reverse charge is permissible to be availed as cenvat credit and that may be refundable under Notification No.41/2007 unless otherwise deniable by law - appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1666 - CESTAT CHENNAI
Valuation - inclusion of reimbursable expenses in assessable value - Held that:- The issue is decided in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT OF INDIA], where it was held that only with effect from May 14, 2015, by virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax - demand do not sustain.
CENVAT Credit - input service used for non-taxable output service - Held that:- In the case of THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-V VERSUS M/S. VISHAL PRECISION STEEL TUBES AND STRIPS PVT. LTD. [2017 (3) TMI 1287 - KARNATAKA HIGH COURT], it was held that The final product is treated as dutiable and duty is paid by the assessee. When once duty is paid by the assessee treating the activity as manufacturing activity by the Department, CENVAT credit is available and there is no question of reversal of CENVAT credit - credit remains allowed.
Appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1665 - CESTAT CHENNAI
Intellectual Property Service - Extended period of limitation - Appellant refined crude edible palm oil belonging to others, affixed their brand name ‘ROOBINI’ on the packages and collected brand royalty commission of ₹ 100/- per MT from such clients - Held that:- It is not the case that the appellant had informed the department about these transactions in ER-I returns. This being so, the extended period, can very well be invoked and hence the entire demand of service tax of ₹ 1,74,782/- with interest thereon is not being interfered with - However, taking into consideration that the issue was interpretational and there was reasonable cause for the failure to pay tax, the penalties imposed are set aside.
Demand of ₹ 41,820/- under C&F Agent Service - Held that:- Following the ratio in Kulcip Medicines (P) Ltd. [2009 (2) TMI 89 - PUNJAB AND HARYANA HIGH COURT], the demand is unsustainable and requires to be set aside - Demand set aside.
Appeal allowed in part.
-
2018 (9) TMI 1664 - CESTAT CHENNAI
Business Exhibition’ service - Department is of the view that during the relevant point of time, management of business exhibition and other events were liable to service tax under Event management Service - Section 73A (2) of the Finance Act, 1994 read with Section 11D of the Central Excise Act, 1944 - Held that:- Business Exhibition Services were made exigible to service tax only w.e.f. 10.09.2004 - As per Section 11D of the Central Excise Act, 1944, as applicable to service tax matters, during the period of dispute, only amounts of tax collected in excess of what was assessed and determined on ‘taxable service’, was required to be paid to the credit of the Central Government. This position was altered only by the introduction of sub-section 1A in Section 11D on 10.05.2008 by Finance Act, 2008. So also, Section 73A of the Act was inserted only w.e.f. 18.04.2006 by Finance Act, 2006.
The amounts collected during the impugned period on a service which was not then a ‘taxable service’, cannot be sought to be recovered under the erstwhile provisions of Section 11D ibid when the sub-section (1A) thereof was not even inserted - The demands made therefore are outside of the scope of the statutory provisions as prevailed during the period of dispute.
Appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1663 - CESTAT CHENNAI
Outdoor Catering service - supply of food made in the hotel to the client premises - Case of appellant is that the activity is only sale of foods involving delivery at the premises of M/s. Mitsubishi - Department is of the view that since some person from the hotel goes to the company the activity falls within the definition of outdoor catering.
Held that:- The element personalized service is involved in outdoor catering. In the present case, it is very much clear from the facts that the appellant is merely delivering the food to the company and there is no service element involved. - If one person goes to the premises of the company to check whether the food is sufficient, it can be overseeing the activity of sale of food. But this cannot be considered as catering to the service of the customer.
Identical issue decided in the case of M/S AMBEDKAR INSTITUTE OF HOTEL MANAGEMENT VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, CHANDIGARH [2015 (9) TMI 163 - CESTAT NEW DELHI], where it was held that Since the appellant are preparing mid day meals in their Institute and not in the schools where the meals are served are not involved in serving of the meals in any manner, in our view they are not covered by the definition of "outdoor caterer" and hence their activity of preparing and supplying meals for mid day scheme would not be covered by the definition of taxable service under Section 65(106(zzt).
The activity does not fall within the definition of outdoor catering service - demand do not sustain - appeal allowed - decided in favor of appellant.
-
2018 (9) TMI 1662 - CESTAT CHENNAI
Business Auxiliary Service - Commission received by appellant from M/s. Galileo India Pvt. Ltd. for using the Galileo Centralized Reservation System (CRS) - Commission received by appellant for promoting business of Western Union Money Transfer Services in India.
Commissions or incentives received for use of Centralized Reservation System - Held that:- There are a number of decisions which have held that the said activity is definitely in the nature of Business Auxiliary Service and consequently, the commissions/incentives received thereon are exigible to service tax liability under that category - reliance placed in the case of New Royal Link Travels and Ors. Vs. CST, Chennai [2018 (3) TMI 115 - CESTAT CHENNAI] - demand upheld.
Money Transfer Services - Held that:- Tribunal in Muthoot Fincorp. Ltd. Vs. Commissioner of C. Ex., Visakhapatnam [2009 (8) TMI 236 - CESTAT, BANGALORE], where it was held that the benefits of service are accrued to a person outside India and hence, they are not liable to service tax under Business Auxiliary Services - demand set aside.
Penalty - Held that:- Both the disputed issues had been mired in litigation and hence, there cannot be any penalty imposable in such situations - Demand set aside.
Appeal allowed in part.
........
|
