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Service Tax - Case Laws
Showing 61 to 80 of 346 Records
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2018 (9) TMI 1585 - CESTAT CHENNAI
CENVAT credit - input services - repairs and maintenance of the vehicles by the ‘Authorized Service Stations’ in respect of those vehicles which were insured by the appellant - Held that:- The issue has been considered by this very Bench in this very assessee’s case in M/s. United India Insurance Co. Ltd. Vs. C.C.E. & S.T., LTU, Chennai [2018 (6) TMI 200 - CESTAT CHENNAI], where it was held that the service tax paid on the bill of the ASS is to be considered as falling within the definition of the input service which is used for providing the output service of the vehicle insurance - credit allowed - appeal dismissed - decided against Revenue.
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2018 (9) TMI 1584 - CESTAT CHENNAI
CENVAT Credit - insurance services - Motor Insurance Policy for motor vehicles against theft, damage and third-party liability - service tax paid on reimbursement of the repair charges - Held that:- The identical issue decided in the case of M/S. UNITED INDIA INSURANCE CO. LTD. VERSUS CCE & ST, LTU, CHENNAI [2018 (6) TMI 200 - CESTAT CHENNAI], where it was held that The general insurance service provided by the appellant basically insures the vehicle against damages. It is obvious that such service can be provided to the customer ie., owners of the vehicle only by way of reimbursement of the repair charges. The service tax paid on the bill of the ASS is to be considered as falling within the definition of the input service which is used for providing the output service of the vehicle insurance.
Appeal allowed - Credit allowed - decided in favor of appellant.
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2018 (9) TMI 1583 - CESTAT CHENNAI
Sale of space for Advertisement Services - Period May 2006 to May 2010 - demand of Service Tax - Held that:- What is covered by the Sale of Space for Advertisement Services after amendment, or perhaps the advertisements in business directories, yellow pages and trade catalogues, are those primarily meant for commercial purposes. The sale of space for advertisement in the course of not being in journals which is meant for in-house circulation only, the activity of the appellant is not covered by the definition of Sale of Space for Advertisement Services and, therefore, the same is not exigible to service tax - Demand set aside.
Penalty - Renting of Immovable Property Services (RIS) - period June 2007 to March 2010 - demand of Service Tax - Held that:- It is submitted that the same issue was under serious litigation before various judicial forums and, therefore, it was too premature to say that there was any service element. The law, as amended from 01.06.2007, till the further amendment by the Finance Act, 2010, saw multiple litigation - penalty set aside.
Membership of Club or Association Service (MCA) - period June 2005 to May 2010 - demand of service tax - Held that:- The association is not liable to pay service tax since there is no service provider and service recipient; it is only on mutuality concept that the association is run - Demand set aside.
Business Support Services (BSS) - Convention Services (CS) - Management Consultant Services (MCS) - Appellant submitted that though the issue involves complexity, he has instructions not to press the demands, but only request for setting aside the penalties and interest, if any - Held that:- Undoubtedly the issues involved intricacies, complexities and some of the issues are still being litigated elsewhere. In view of the above the demand on these four items is confirmed, but, however, the penalties set aside.
Appeal allowed in part.
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2018 (9) TMI 1522 - GUJARAT HIGH COURT
Levy of service tax on Royalty - rule 64D of the Mineral Concession Rules - It was submitted that the issue regarding royalty being a tax and therefore, not being amenable to service tax as well as other issues raised in the present petition have not been raised before the Rajasthan High Court and hence, the same have not been considered in the case of Udaipur Chambers of Commerce and Industry v. Union of India [2017 (10) TMI 975 - RAJASTHAN HIGH COURT].
Held that:- This court is of the view that at this stage it is not necessary to enter into the merits of the submissions advanced by the learned counsel for the petitioner on issues which were not raised before the Rajasthan High Court in the above referred decision. In the light of the fact that the Supreme Court in the appeal preferred against the decision of the Rajasthan High Court has been pleased to protect the appellants therein, at this stage the interests of both the sides can be duly protected if similar relief as granted by the Supreme Court is granted subject to the members of the petitioner associations filing undertakings to the effect that if ultimately they do not succeed in the petitions they shall pay the service tax on the royalty.
Issue RULE.
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2018 (9) TMI 1521 - BOMBAY HIGH COURT
Refund claim - Business Auxiliary Services - commission received from foreign based principals for promotion of sale of its products/ goods in India.
Held that:- An identical nature of services as rendered by the Respondent to its foreign clients, had come up for consideration before this Court in Commissioner of Service Tax, Mumbai v/s. ATE Enterprises (P) Ltd., [2017 (8) TMI 1233 - BOMBAY HIGH COURT], where it was held that services of procuring orders and passing it to its overseas principal/parties and receiving payments for the same in foreign exchange, is an activity of export of services covered by the Export of Service Rules, 2005.
Appeal dismissed - decided against Revenue.
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2018 (9) TMI 1520 - BOMBAY HIGH COURT
Attachment of Bank Account - recovery of amount pending adjudication - case of appellant is that this is without Jurisdiction as the impugned notice dated 30th August, 2018, has been issued when there is no amount adjudicated as payable under the Act after issuing a show cause notice under Section 73 of the Act - Section 87 (b)(i) of the Finance Act, 1994.
Held that:- At the stage of adjudication, the Petitioner would have an opportunity to explain the meaning and significance of the alleged admission. Therefore, till such time, as the show cause notice is adjudicated, it cannot be conclusively stated that any amount of service tax was paid by the Petitioner on the basis of forged/ fabricated/bogus challans. This would necessarily have to await adjudication order passed after following the principle of natural justice. Thus, the invocation of Section 87 of the Act, at this stage, would in these facts, be premature.
Our Court has in Quality Fabricators & Erectors [2015 (12) TMI 494 - BOMBAY HIGH COURT], has held that Section 87 of the Act, can only be invoked for adopting coercive proceedings for recovery after the authorities determined the amount payable by an assesee on an adjudication order. Without adjudication, no steps for coercive recovery under Section 87 of the Act can be taken by the authorities.
The impugned notice dated 30th August, 2018 is quashed and set aside. However, the amount which have already been received by the Revenue consequent to the notice dated 30th August, 2018, would be continued to be retained by the Respondent till the passing of on adjudication order on the show cause notice dated 8th September, 2018 - petition allowed.
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2018 (9) TMI 1519 - CESTAT CHENNAI
Refund of service tax - export of services - Place of provision of service - main contention put forward by the department is that the appellant is an intermediary and therefore the place of provision of service is within India - input services - Held that:- The appellants was engaged by M/s.H&H, China. So also, it is admitted that appellants have provided services to H & H, China. The invoices were raised on H & H, China by the appellant. The only conclusion therefore possible is that H & H, China is the intermediary if at all, and not the appellant - The recipient of logistic services being situated outside India, and the consideration having received in convertible foreign currency, the transaction has to be treated as export of service - thus appellant has facilitated the re-export of the goods.
Input services - allegation is that major part of the input services were availed for import of goods and not export of services - Held that:- The goods were to be carried back to China. For this re-export/return of goods, various legal formalities and procedures are required to be complied. The goods had to be kept in CFS, under proper storage facility had to be presented for examination/verification of Customs department etc. The inputs services availed for doing such return of goods to China are services availed for exports of goods only - appellant is eligible for refund of cenvat credit availed on input services used for export of logistic services.
Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1518 - CESTAT NEW DELHI
Classification of services - construction of the residential apartments - appellant‟s claim is that the activity undertaken will fall under the category of construction of complex service under Section 65 (105) (zzzh) readwith Section 65 (30a) - whether classified under Works contract service or under construction of complex service?
Held that:- The key to the decision is in the fact that the construction activity has been carried out by the appellant on the land which is acquired and owned by the appellant. The appellant has carried out design, planning, development of their own land and carried out the construction and transferred the completed flats to the buyers. To our minds, the activities undertaken do not merit classification under works contract services. The activity will be covered under works contract service only when the contract is entered into by the appellant only for construction of residential complex on land owned by someone else.
The CBEC Circular dated 29/01/2009 bring out the position clearly that in the activity undertaken by the appellant in building a residential complex, there will be no liability to pay service tax under the category of construction of complex service. The position changed only w.e.f. 01/07/2010 when an explanation was added to sub-Section (zzzh), making such activity to be a deemed service - Thus the activity of the appellant, covered by the construction of complex service is liable to be set aside for the period upto 01/07/2010.
Period from 01/07/2010 to March 2011 - Held that:- The Adjudicating Authority has upheld the payment of service tax under the category of works contract services, but as discussed above, the activity is liable for payment of service tax only under the category of construction of complex service. The appellant has also submitted during the course of argument that they have discharged the service tax for the period w.e.f. 01/07/2010 after availing applicable abatements. The Adjudicating Authority is directed to verify such claim. Subject to such verification, the demand for service tax under works contract service raised in the show cause notice is set aside for the period 01/07/2010 to March 2011 - matter on remand.
The issue of time bar need not be discussed since the appeal itself is being allowed on merit.
Appeal allowed in part and part matter on remand.
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2018 (9) TMI 1517 - CESTAT, ALLAHABAD
Maintainability of SCN - Short paid Service Tax - Whether the show cause notice is maintainable for raising a demand of service tax as short paid?
Held that:- Revenue have not found any fault and/or error in the books of accounts and the financial statements which have been duly audited by a Chartered Accountant as required under the other Taxation Acts etc. - Ruling of Coordinate Bench of this Tribunal in the case of Commissioner of Service Tax, Delhi vs. Convergys India, [2018 (1) TMI 1174 - CESTAT CHANDIGARH], wherein under similar circumstances show cause notice demanded differential duty for the apparent difference in the receipts as per balance sheet as compared to the ST-3 returns this Tribunal held that the receipt declared in the balance sheet is for accounting purposes or for the purpose of Income Tax and the same cannot be considered as Revenue for levy of service tax. We also note that the book of accounts are not rejected and without rejecting the assumption of the gross receipt as taxable service, is untenable, and grossly wrong.
The SCN is misconceived and vague, and also erroneous - Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1516 - CESTAT, ALLAHABAD
CENVAT Credit - time limit for taking credit - whether the Cenvat Credit of ₹ 1,84,47,149/- has been rightly disallowed under Rule 14 of CCR, 2004 and further the tax of ₹ 61,997/- have been erroneously demanded which has been a clerical error in the presentation of the amounts by the appellant? - whether the penalties imposed under Sections 70, 77 and 78 of the Finance Act and Rule 15(3) of CCR have been rightly imposed?
Held that:- There was no time limit prescribed in the Cenvat Credit Rules for taking credit. The time limit of 6 months was introduced w.e.f. 01.09.2014 which has got perspective effect as held by Hon’ble Allahabad High Court in CCE vs. Ram Swarup Electricals Ltd. [2007 (5) TMI 116 - HIGH COURT , ALLAHABAD]. It cannot be applied to the period prior to 01.09.2014 - disallowance of Cenvat Credit is set aside.
Demand of differential tax of ₹ 61,997/- - for the financial year 2011-12 the gross receipt is computed as ₹ 5,51,73,149/- which comprises of signal fee ₹ 3,77,39,469/- but in the SCN it has been erroneously taken at 3,83,39,469/- thus there has been a difference of ₹ 6 lacs - Held that:- Te said clerical mistake in final account was noticed by appellants subsequently. Appreciating the mistake as same is evident from the record and books of account maintained on ordinary course of business, demand of difference amount is set aside.
Penalty u/s 77 - Held that:- There is no deliberate defiance of the provision of law nor there is any act of suppression on the part of the appellant and the transaction was recorded in the books of accounts ordinarily maintained in the course of business, penalties under Sections 77(1)(b), 77(1)(c)(i), 77(1)(c)(iii), 77(2) and Rule 15(3) of CCR, 2004 is set aside.
Penalty u/s 70 - Held that:- Penalty of ₹ 1,80,000/- under Section 70 is retained however it reduced to ₹ 14,400/- in terms of Section 70 and Rule 7C of Finance Act, 1994.
Appeal allowed in part.
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2018 (9) TMI 1515 - CESTAT CHENNAI
Demand of service tax - Reversal of Cenvat Credit - Scope of SCN - Non-speaking order - main grievance of the department is that the impugned order is a non-speaking order without giving detailed findings either to support or counter the arguments of the noticee but has simply confirmed demands proposed in the notice and the statement of demand - principles of natural justice - Held that:- The SCN had alleged in para 5.1 that “value of goods (sold during taxable service) is to be included in the gross value of taxable service under section 67 of the Finance Act, 1994”. The same paragraph also alleges that “assessees are liable to pay an amount of 5% of gross value of exempted service as per explanation 1(a) to rule 6(3) and 6(3A) of CENVAT Credit Rules, 2004 - These are the only two alleged infractions raised in the show cause notice. There is no other allegation or infraction that has been brought out in the show cause notice dated 11.6.2013 are for that matter in the statement of demand dated 23.4.2014.
Non-fulfillment of Notification No. 12/2003-ST was not an allegation or charge raised in the show cause notice. True, para 4.4 of the notice dated 11.6.2013 did reproduce a portion of the Notification 12/2003-ST, however, without making any reference or connection to the facts of the case or making any allegation that the conditions of the notification have been violated by the department - further, in para 19, the adjudicating authority has made a reference to Circular No.96/7/2007-ST dated 23.8.2008 which had inter alia clarified that where spare parts are used by a service station for servicing of vehicles, service tax should be levied on the entire bill including the value of the spare parts. That however service provider is entitled to take input credit of excise duty paid on such parts or any goods used in providing service wherein value of such goods has been included in the bill. We are unable to fathom why the adjudicating authority has chosen to apply the facts of the case to the said circular dated 23.8.2008, particularly, when the said circular pertains to a period prior to the amendment introduced under Rule 2(e) of CENVAT Credit Rules, 2004 amplifying the definition of exempted service to include “trading”.
It is evident that the order of the adjudicating authority has not addressed the allegations and concerns raised in the show cause notice but has instead veered off into other areas which have not been alleged in the notice or in the statement of demand - Thus, the adjudicating authority has not given any speaking order based on the allegations and charges proposed in the notice / statement of demand.
The impugned order not having addressed the allegations in the show cause notice but having only confirmed the proposed demands on other grounds cannot be sustained - case remanded for fresh adjudication based on the allegations and charges made out in the show cause notice - Appeal allowed by way of remand.
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2018 (9) TMI 1514 - CESTAT NEW DELHI
Declared service or not? - Unscheduled Inter-change charges (UI) - Sub-Section (e) of Section 66E of the Finance Act, 1994 - whether Service Tax liability arises on the UI Charges received by the appellant? - Agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act.
Held that:- This Declared Service covers those cases where service provider has agreed to take on himself an obligation to refrain from an Act. The UI Charges have been received by the appellant only in those cases where the buyer has drawn more electricity than what was scheduled for him - such an act cannot be considered as agreeing to an obligation to refrain from supply of electricity.
The receipt of UI Charges has arisen in connection with transmission of electricity, which has been undertaken by the appellant. It cannot be lost sight of that all components of billing undertaken are in connection with the electricity transmitted and supplied by the appellant. The charges being part of this activity which finds place in the negative list in services, it cannot be said that it amounts to any kind of service.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1513 - CESTAT NEW DELHI
Extended period of limitation - wilful suppression of facts - prevalent confusion - evasion of duty or not - liability of service tax - incentive against the segment books by the appellants.
Held that:- It is an apparent admission of the appellant that the service incentives as have been received from the various above mentioned companies have not been shown in their returns irrespective those have been filed regularly and also in time. It is also an apparent admission of the appellant that they are paying service tax on the said activity now. The perusal of the said notification shows that the impugned confusion was brought to the notice of Ministry of Finance only in the year 2012 - the impressing upon confusion w.e.f. 2012 onwards cannot be allowed to extend any benefit to the appellant.
In the era of self-assessment, the onus heavily lies upon by the appellant to declare the income received and to discharge the respective liability. Apparently and admittedly the same is missing in the present case. For these reasons, the authorities relied upon by the appellant are not opined applicable to the present case. The reliance upon the Notification of 2016 is opined to be clearly an afterthought and an attempt to improve upon the case despite the facts that liability of the appellant has been confirmed even by the Hon’ble Supreme Court - these facts clearly amounts to willfully suppressing the material facts in addition also amount to contravention of the provision of the act.
The department has rightly invoked the extended period of limitation - appeal dismissed - decided against appellant.
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2018 (9) TMI 1512 - CESTAT NEW DELHI
Application for withdrawal of appeal - amount involved in the present appeal is ₹ 12,03,145/- which is less than 20.00 Lakhs - Held that:- As per C.B.I.T.C. Instructions F. No.390/MISC./116/2017-JC, dated 11-7-2018, the appeal is not maintainable due to the monetary limit - no substantial question of law is to be adjudicated, the request for withdrawal is hereby allowed - appeal dismissed as withdrawn.
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2018 (9) TMI 1511 - CESTAT NEW DELHI
Classification of services - activities carried out by them in transporting/shifting the excavated coal from pit-head to dump yard - whether classified under the head mining services or under the head GTA Services? - Held that:- Hon’ble Supreme Court in C.C.E. & S.T., Raipur Vs. Singh Transporters [2017 (7) TMI 494 - SUPREME COURT] has categorically held that such services rendered within the mining area cannot be taxed under the category of mining services.
The activity of the appellant for transporting coal from the pit area to the place of stock yard as the activity of GTA. It is also on record that the said tax liability has already been discharged by Western Coal Fields under Reverse Charge Mechanism - question of double taxation also do not arise.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1510 - CESTAT ALLAHABAD
Classification of services - supply of explosives to the service recipient and also supervise the use of the same - Mining of Mineral Oil and Gas Services or not? - Held that:- Mere supply of explosives and accessories was held as not involving any service element so as to attract service tax.
However, in the present case apart from supply of explosives the appellant was also supervising the use of the same in the mines. The entire facts have to be adjudged from the terms of the contract and agreement - matter remanded to the original adjudicating authority for examining the entire aspect afresh - appeal allowed by way of remand.
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2018 (9) TMI 1509 - CESTAT ALLAHABAD
Courier Service - demand raised on the basis of difference between the value declared in ST-3 Returns and Bank Statements with imposing equal penalty - Case of appellant is that out of confirmed demand of ₹ 1,79,799/- the appellant had paid service tax of ₹ 1,03,987/- along with interest due thereon - Held that:- There was no need for issue of show cause notice in respect of service tax of ₹ 1,03,987. Therefore, the penalty equivalent to the said amount is not sustainable.
Further the demand of ₹ 75,812/- is set aside and matter is remanded to Original Authority with direction to verify the Invoices which the appellant is claiming for admissibility of Cenvat credit and on verification of said documents and any additional evidences decide the matter related to demand of ₹ 75,812/- afresh.
The appeal is partially allowed and partially remanded.
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2018 (9) TMI 1508 - CESTAT ALLAHABAD
Service of Order - case of appellant is that the Order-In-Original No.199/ADC/ST/LKO/2015-16 dated 29.03.2016 was never passed in respect of them and was never served upon them - Held that:- It was a clerical mistake at some stage where same order has been assigned two numbers 199 and 202. The Order-In-Original assigned No. 199/ADC/ST/LKO/2015-16 dated 29.03.2016 was marked to the department and Order-In-Original assigned No.202 was addressed to the appellant and because of such clerical mistake the whole confusion has arisen - Since the matter arising out of said show cause notice dated 20.10.2014 has reached finality through Order-In-Appeal dated 31.07.2017, the impugned Order-In-Appeal is infructuous - the impugned Order-In-Appeal is set aside - appeal allowed.
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2018 (9) TMI 1507 - CESTAT ALLAHABAD
Liability of Service Tax - Club or Association Services - Held that:- The Club Services have been held to be ultra vires and not liable to service tax by various decisions of the High Courts - The Hon’ble Calcutta High Court in the case of Dalhousie Institute vs. Assistant Commissioner reported at 2006 (003) STR 311 (Calcutta) and in the case of Saturday Club Ltd. vs. Assistant Commissioner [2004 (6) TMI 11 - HIGH COURT CALCUTTA] has held that no service tax is attracted in respect of services rendered to the members of the club - demand set aside.
CENVAT Credit - duty paying invoices - non-original documents - Held that:- Inasmuch as there is no dispute about the receipt of input services as also by taking note of the fact that there was no liability of appellant to pay the service tax, there is no justification for confirmation of the said demand.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1506 - CESTAT ALLAHABAD
Legal Consultancy Service - services received from foreign based Legal Firm M/s Hill Dickinson LLP - intent to evade not present - Extended period of Limitation - Held that:- There was no intention on the part of the appellant to evade payment of Service Tax. Therefore, the extended period was not invocable - entire demand was beyond the normal period of limitation and is set aside - appeal allowed - decided in favor of appellant.
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