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Service Tax - Case Laws
Showing 81 to 100 of 346 Records
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2018 (9) TMI 1505 - CESTAT NEW DELHI
Penalty - tax with interest paid before issuance of SCN - Section 73(3) of the Finance Act, 1994 - Held that:- Explanation to Section 73(3) of the Finance Act, 1994 becomes relevant which clarifies that no penalty shall be payable under any provisions of Finance Act, 1994 or the Rules made there under - In view of this provision, it becomes abundantly clear that where the tax has been paid by the assesse before the issuance of Show Cause Notice, the very ground of issue of notice is ultra vires to the Act which calls for the penalty, if any imposed, to be vacated - Penalty set aside.
Sponsorship Service - Reverse Charge Mechanism - N/N. 15/2006-ST dated 24.04.2006 - Held that:- The appellants were not liable to pay any service tax for rendering Sponsorship Service which was otherwise to be paid by the recipient under the Reverse Charge Mechanism - The liability qua Sponsorship Service was not sustainable.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1504 - CESTAT ALLAHABAD
Management and Maintenance and Repair Services - benefit of abatement in terms of N/N. 1/2006 - Held that:- Appellant submits that the services provided by the appellant were correctly classifiable under the ‘Works Contract Service’ and as such the rate applicable to the said services should had been adopted by the Authorities below, for confirmation of demand - However, he fairly agrees that neither the said plea was raised before the Authorities below nor the relied upon decision of Hon’ble Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] was available at the time of adjudication proceedings. As such the matter requires reconsideration.
Matter remanded to the Original Adjudicating Authority for fresh decision - appeal allowed by way of remand.
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2018 (9) TMI 1503 - CESTAT ALLAHABAD
Liability of Service Tax - Sub-contract - appellant has provided services of fabrication of Iron and Steel items to their principal contractor - who is liable to pay tax, principal contractor or the appellant, sub-contractor?
Held that:- In the case of M/s R.S. and Brothers [2018 (6) TMI 1530 - CESTAT ALLAHABAD] has held that where the principal contractor, for whom the sub-contractor was working, has already discharged full tax liability on the full value of the contract, no further liability would be fastened against the sub-contractor - However, we find that the plea that principal contractor has discharged the full tax liability, was not raised before the Original Adjudicating Authority and as such was not verified - matter requires reconsideration - appeal allowed by way of remand.
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2018 (9) TMI 1502 - CESTAT ALLAHABAD
Liability of Service Tax - Revenue has entertained a view that the appellant is required to pay service tax on Reverse Charge Basis as the said services were provided in India - whether the respondents are under an obligation to pay service tax in respect of services provided to their foreign principals for enhancing their business in India?
Held that:- The issue is no more res-integra and stands settled by the Majority Decision of the Tribunal in the case of M/s Microsoft Corporation (I) (P) Ltd. Vs Commissioner of Service Tax, New Delhi [2014 (10) TMI 200 - CESTAT NEW DELHI (LB)], where it was held that services provided by the agents and some agencies being delivery of money to the intended beneficiary of the customer of the western units abroad, which may be located in India and the services provided being business auxiliary services is also to the western unit who is recipient of services and consumers of services, it has to be held that services were being exported in terms of Export of Services Rule 2005 and not liable to Service Tax.
Appeal dismissed - decided against Revenue.
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2018 (9) TMI 1501 - CESTAT ALLAHABAD
Manpower Supply Services - entire case of revenue is based upon the comparison of bank account figures with the ST-3 returns - Held that:- There is no requirement under the law to maintain separate bank account for the services to be provided by the assessee. As such in the absence of any evidence against the appellant, there is no merits in the revenue’s stand - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1500 - CESTAT ALLAHABAD
Classification of services - activity involved supply of soil, excavation of soil, installation and operation of bores for dewatering, hiring of dewatering pumps with complete installation, commissioning and maintenance at different projects, providing dewatering etc. for various construction companies - whether classifiable under Commercial Construction Services or under Site Formation, Clearance and other services? - demand raised invoking extended period of limitation.
Held that:- There is no dispute that the appellants were duly registered and were filing ST-3 return, there is no suppression or misstatement on the part of the appellant with an intention to evade payment of duty, can be alleged so as to justifiably invoke the longer period of limitation.
It seems to be a change of opinion of the revenue as regards the classification of the services and there is actually no evidence to reflect that the tax was being paid under the construction services with any malafide intention. All the facts were in knowledge of the revenue - the extended period is not available to the revenue.
As the appeal is allowed on limitation, merits of case have not gone through - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1499 - CESTAT ALLAHABAD
Classification of services - Execution of the work for Railways - Erection, Commissioning and Installation or Works Contract Services - Held that:- The applicability of the Hon’ble Supreme Court’s decision on ‘Works Contract’ in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], is required to be examined by referring to the terms and conditions of the various contracts. Such verification can be done only at the level of the Original Adjudicating Authority - appeal allowed by way of remand.
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2018 (9) TMI 1498 - CESTAT ALLAHABAD
Outdoor Catering Services - case of appellant is that they are not involved or engaged in serving of the food which is an important element in the case of catering service - Held that:- Service tax has been charged on the entire amount received by the appellant from their customers including the amount for supply of tiffin boxes or supply of food from base kitchen which would not be covered by the definition of catering service. However, the appellant are also engaged in cooking the food at the customer’s premises and also booking orders for tent, decoration, serving of food etc.
The question as to whether there is evidence indicating that the appellant were also engaged in serving of food at the customer’s premises where they were cooking the food, can be examined only at the level of Original Adjudicating Authority, for which purpose matter is remanded to Original Adjudicating Authority - appeal allowed by way of remand.
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2018 (9) TMI 1497 - CESTAT BANGALORE
Manpower Supply Service/Security Agency Service - Reverse charge mechanism - CENVAT credit on the services - revenue neutral situation - Held that:- Admittedly tax cannot be demanded or collected without any authority of law - When an appellant pleads that there is no loss to the Revenue, there can also be no case for suppression or fraud since admittedly the appellant has paid the duty along with interest on being pointed out which fact becomes evident from the fact that the adjudicating authority has appropriated the duty and interest paid by the assessee - demand set aside - appeal allowed.
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2018 (9) TMI 1452 - CESTAT BANGALORE
Penalty u/s 78 of FA - mining of mineral service - Non-payment of service tax - bona fide belief - service tax alongwith interest paid on being pointed out - invocation of Section 73(3) of the Finance Act.
Held that:- The service tax liability was shown in the books of accounts but it was not paid on account of the fact that they could not get the service tax collected from their clients - further, there is no suppression of facts because all the transactions are reflected in the books of accounts and the audit party detected these transactions from their records only.
Service tax paid alongwith Interest on being pointed out - Section 73(3) of the Finance Act - Held that:- When the service tax is paid along with interest before issuance of show-cause notice, then the Revenue should not have issued the show-cause notice as per Section 73(3) of the Finance Act.
Penalty not warranted - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1451 - CESTAT BANGALORE
Penalty u/s 78 - Supply of Tangible Goods Service - tax paid alongwith Interest on being pointed out - invocation of Section 73(3) of FA - Held that:- The appellant has paid the duty along with interest before the issuance of show-cause notice and as per Section 73(3), once the duty is paid along with interest before the issue of show-cause notice, then in that case the Revenue should not issue the show-cause notice unless there is a allegation of fraud or suppression of facts with intent to evade payment of tax - Penalty not warranted and is set aside.
CENVAT Credit - inputs/capital goods - it was alleged that capital goods which were cleared by the manufacturer under heading 87042319 covers motor vehicles and therefore are not eligible for availment of credit - discrepancies in documents - Held that:- The documents produced by the appellant did not tally with each other and in both the documents, the engine number is different and only the chassis number is matching. Further the amount of cenvat credit is also different in both the documents. In view of this discrepancy, the issue of availment of cenvat credit is remanded to the original authority to verify the said document - Matter on remand.
Appeal allowed in part and part matter on remand.
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2018 (9) TMI 1450 - CESTAT NEW DELHI
Valuation- Composite Works Contract - Benefit of Composition Scheme - It is alleged that by dividing the work contract into two parts and paying service tax applicable for one work contract (composition scheme for payment of service tax) an amount of ₹ 21,01,50,386/- has been evaded by the respondent - case of Revenue is that composite scheme was only available when the value of services alongwith the value of supply of goods is included in the service taxable value of the service. - Erection and commissioning on turnkey basis
Held that:- The respondent/assessee were awarded contract on EPC basis by various electricity companies such as North Delhi Power Limited, Dakshin Haryana Bijli Vitran Limited etc. and it can be seen from the contract that all the contracts are composite contract for the supply of goods as well as for erection and commissioning on turnkey basis. It has also been the matter of fact that the respondent/assessee has opted to pay the service tax under Rule 3 (i) of Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007.
The composition scheme for payment of the service tax was primarily meant to facilitate the service tax provider that they need not to bother with regard to bifurcation of supply and service element from the composite work contracts rather they were allowed to discharge their service tax liability on the concessional rate - From the perusal of the Rule 3 (i), it is clear that for determination of the value under the composition scheme, the value of all goods used in or in relation to execution of the work contract need to be included in the serviceable value even when the goods might have been supplied under any other contract for execution of the composite work contract.
It is a matter of record in this case that all the contracts are composite contracts for both supply of goods and services as both the elements are absolute pre-requisite for completion of any turnkey project. It is also of the matter of fact that the respondent/assessee has opted for the benefit of composite work contract service and has availed the benefit of Rule 3 (i) of Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 - thus, the value of both supply and service need to be added for payment of service tax under composition scheme.
Time limitation - Held that:- The appellant is fully aware of the legal implications of service tax liability on composite works contract. Their act of first paying composition rate on what is claimed to be a service contract and later switching over to full rate of payment without composition clearly reveals the knowledge and deliberate intend of the appellant - extended period rightly invoked.
Matter remanded to the original Adjudicating Authority for purpose to verify the claim of the respondent/assessee in his arguments submitted before this Tribunal that on certain contracts they have paid full rate of service tax rather than concessional rate of service tax under composition scheme - appeal allowed by way of remand.
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2018 (9) TMI 1449 - CESTAT NEW DELHI
CENVAT Credit - input services - general insurance services - appellant engaged in providing infrastructural support by ensuring the safe availability of Aviation Turbine Fuel at the Delhi Airport - whether the appellant is entitled to the cenvat credit on certain general insurance services?
Held that:- Such services have been used for insuring the building, plant, machinery, pipes, cables etc. which were used by the appellant in providing the service of making available ATF at the Delhi International Airport. Clearly such services are in the nature of general business activity to ensure the security of the plant and machinery used for providing the output service - In Rule 2(l) of the Cenvat Credit Rules, 2004 it is seen that such services are covered within the definition under the ‘means’ as well as ‘inclusive’ portion.
Whether the adjudicating authority was right in denying such cenvat credit by applying the exclusion providing under sub –clause ‘(BA)’? - Held that:- The exclusion clause is specifically applicable only in respect of general insurance service for motor vehicles which are not being used as capital goods - It cannot be said that the exclusion will be applicable to the insurance for the general plant, machinery which is used for providing the output service.
Credit allowed - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1448 - CESTAT ALLAHABAD
Business Auxiliary Services - appellant acting as distribution agent of M/s. Amway India Enterprises in terms of the agreement entered between the two - Held that:- Tribunal in the case of Charanjeet Singh Khanuja v. C.S.T., Indore/Lucknow/Jaipur/Ludhiana [2015 (6) TMI 585 - CESTAT NEW DELHI], has dealt with an identical question and has held that the activity would fall under the category of ‘Business Auxiliary Services’ - the appellant was liable to pay Service Tax on the commission earned by him for acting as distributing agent of M/s. Amway.
Extended period of limitation - penalty - Held that:- Following the decision of Charanjeet Singh Khanuja, extended period as well as penalty is not imposable.
Matter remanded to the original adjudicating authority for re-quantification of the tax amount, for the period falling within the limitation and on the commission earned by the distributor - appeal allowed by way of remand.
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2018 (9) TMI 1447 - CESTAT ALLAHABAD
Commercial Coaching or Training - extension of cum-duty price benefit - penalty - Held that:- In appellant own case M/S NATIONAL INSTITUTE OF BANKING STUDIES & CORPORATE MANAGEMENT VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, NOIDA AND VICE-VERSA [2018 (7) TMI 1290 - CESTAT ALLAHABAD], where it was held that while calculating duty demand, the benefit of cum-duty has to be extended to the assessee.
Demand is confirmed on merits, but matter remanded to the Lower Authorities for re-quantification of the demand by extending the benefit of cum-duty price to the assessee.
Appeal disposed off.
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2018 (9) TMI 1446 - CESTAT ALLAHABAD
Completion & Finishing Services in relation to residential complex - applicability of abatement in terms of Notification No.01/2006-ST dated 01/03/2006 - appellant was also providing services falling under the category of “Construction of Residential Complex”.
Held that:- As per condition of the Notification appearing against Sr. No.07 the exemption was not available in such cases where taxable services provided are only ‘Completion & Finishing Services’ in relation to residential complex - the use of expression only makes it clear that abatement is not available in those cases where ‘Completion & Finishing Services’ are being provided and no other services are being provided.
In the instant case the appellant is not providing ‘Completion & Finishing Services’, only but such services are being provided by him in continuation of their main services which of Construction of Residential Complex - the said debarring condition appearing in the Notification, which denies the abatement in respect of ‘Completion & Finishing Services’ would not apply in a case where such ‘Completion & Finishing Services are in continuation of the main construction services.
Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1445 - CESTAT ALLAHABAD
Valuation - includibility - whether amounts refunded by the petitioner, a registered “Forward Contract” service provides to its sub-brokers, before the due date of filing of returns, could be excluded from the gross value of consideration received for the taxable services provided?
Held that:- The appellant have discharged the tax liability on the actual brokerage amounts received by them from the sub-brokers and there is no question of any reference or reliance to the initial invoices raised by them, which have subsequently been consolidated at the end of the month and the actual brokerage amounts stands reflected therein - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 1444 - CESTAT ALLAHABAD
Classification of Services - construction of Petrol Pumps including the Canopies - whether taxable under Commercial or Industrial Construction Service or under Works Contract Service? - Held that:- The services provided by the appellant having been held as falling under the category of ‘Works Contract’ - matter remanded to Original Adjudicating Authority for re-quantification of the tax liability in accordance with law - appeal allowed by way of remand.
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2018 (9) TMI 1443 - CESTAT ALLAHABAD
Penalty u/s 76 and 78 of FA - Intellectual Property Services - Held that:- The appellant authority has already extended the due benefit to the appellant by agreeing with the contentions raised by the appellant and has reduced the confirmed tax amount as also has set aside penalty imposed under Section 76. It is also a fact that the appellants, after registration with the Department did not part with any information, which was being repeatedly asked for by the Revenue and did not discharge any service tax liability - imposition of penalty justified - appeal dismissed - decided against appellant.
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2018 (9) TMI 1442 - CESTAT ALLAHABAD
Valuation - inclusion of value of the goods sold separately on which VAT paid, in the assessable value - Section 67 readwith Service Tax (Determination of Value) Rules, 2006 - Held that:- The appellant’s transaction with their customers consist of sale as well as service, which are clearly identifiable. Moreover, when the appellant pay Sales Tax/VAT on the consumables and spare parts used by them for servicing, that transaction would have to be considered as sale and, hence, the same cannot be made part of the value of the service.
In identical issue was the subject matter of various decisions of the Tribunal, wherein stands held that the value of the goods sold separately on payment of VAT would not constitute part of the value of the services.
Appeal allowed - decided in favor of appellant.
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