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Service Tax - Case Laws
Showing 101 to 120 of 3430 Records
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2018 (12) TMI 874 - CESTAT NEW DELHI
Refund of Service tax - Section 11B of Central Excise Act, 1944 - reverse charge mechanism - Held that:- The opinion formed by original adjudicating authority while discarding the income from the nursery plant sale and the interest from bank FDs and NSCs holding the same as non taxable income is opined to be a wrong interpretation. Neither the definition of business entity nor that of turnover creates a distinction between taxable and the non taxable income.
The net aggregate thereof has to be taken while calculating the turnover of the business entity. The Commissioner(Appeals) is opined to be correct while holding that “the Notification does not uses the word business turnover instead has used the work business entity with turnover”. Hence from the plain reading of Notification and understanding of word turnover it is clear that entire proceeds of business entity has to be considered - the findings of Commissioner (Appeals) have a legal as well as genuine basis.
The Commissioner (Appeals) has rightly rejected the claim - appeal dismissed - decided against appellant.
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2018 (12) TMI 873 - CESTAT NEW DELHI
Valuation - includibility - whether the transaction charges received by a stock broker alongwith brokerage charges shall be included in the taxable value?
Held that:- For the purpose Section 67 of the Act needs to be looked into in accordance whereof the valuation of taxable services for charging service tax in case where provision of service is for a consideration of money, shall be the gross amount charged by the service provider for providing ‘such’ taxable services. It becomes clear that any amount which is collected not for providing ‘such’ taxable service, the same cannot form part of that valuation. Irrespective Section 67 has undergone amendment w.e.f. 01.05.2006 but, the interpretation of Section 67 is that the value of taxable service shall be the gross amount charged by the service provider ‘for such service’ and the valuation of tax service cannot be nothing more or less then the consideration paid as quidproquo for rendering such a service.
The fact of the present case is that the appellants as a stock broker were admittedly providing services to the investors/ clients on their own behalf of the stock exchange and the transaction charges in addition to the brokerage charges are collected by the appellant from the clients irrespective of their own behalf or on behalf of the stock exchange - it is only in case the transaction of giving stock broker service is on principal to principal basis that the service is not taxable, in rest of the cases the service is taxable. Similarly, the transaction among if the tax is collected as a pure agent it will not found the part of the gross value required for the assessment else the liability has to be discharged on the amount of transaction value also.
Commissioner (Appeals) has appreciated that the appellant is not functioning as a pure agent but since it is an apparent fact that he is simultaneously acting as a pure agent - It was mandate for the authorities below to verify the records to distinguish the cases where the appellant has provided services as pure agent on principal to principal basis from those where the appellant has provided stock brokerage services on its own behalf.
Appeal allowed by way of remand.
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2018 (12) TMI 872 - CESTAT MUMBAI
Classification of service - Franchise Services or not - ST-3 returns not filed - export of services - extended period of limitation - penalty.
Held that:- There is no dispute in respect of the activities undertaken by the Appellant. The role and activities undertaken by the Appellant, in respect of the grant of media rights have been summarized by the Hon’ble Apex Court, in Union of India Vs Board of Control for Cricket in India [2017 (8) TMI 1496 - SUPREME COURT OF INDIA].
The appellants are not only responsible for organizing the cricket matches but also to educate, promote, popularize, inform and entertain the viewers. For the said purpose appellants allow entry into the stadium for viewing the match and also ensure the telecast of the match for the purpose of those who cannot visit the stadium for viewing the said matches. For taking the live telecast of the matches to the home of viewers, Appellant grant media rights to selected party on exclusive basis. The party granted such media rights represents the BCCI, and is designated in terms of the agreement as “Official Broadcaster” - the services as provided by the Appellants to the M/s MSM, Singapore and M/s WSG are squarely covered by the definition of franchise services as defined by the Section 65(47), 65(48) & 65 (105) (zze) of the Finance Act, 1994.
The activity of the telecast or broadcast of the IPL matches, has been assigned for a consideration to the licensee, and they have been permitted in terms of the agreement as “official broadcasters of the IPL”. Thus it is quite evident that the appellants have granted representational rights to the licensee, in relation to the telecast/ broadcast of the IPL matches.
Since we are holding that the services provided by the appellant in terms of media rights agreement to the licensee to fall within the category of Franchise Services, we do not examine the claim for classification under the category of “Commercial Use or Exploitation of Event.” In our view, the category of “Commercial Use or Exploitation of Event” refers to the services being in relation to the Commercial Use or Exploitation of the Event for one time and is not in relation to grant of representational rights to perform a particular function over period of time.
Whether the Services Provided by the Appellant will qualify as Export of Services for the purpose of Export of Service Rules, 2005 as amended from time to time? - Held that:- Service provided by the appellants are provided in India and used in India. The service provided by the appellant is in form of the feed for the live broadcast of match, and not for transfer of media right. The recipient of service carries the said feed to the individual viewers. Transfer of media right is only to exclusively authorize the M/s MSM Singapore or M/s WSG to broadcast the said feed as Official Broadcaster for the IPL. Thus we are not convinced by the argument advanced by the appellant that in para C.8 that location of the person to whom the media rights have been transferred will determine the place where the service has been provided, and since in the present case the person to whom the media rights have been transferred is located in Singapore, the service should be treated as export of service.
Since prior to amendments made in Rule 3, with effect from 27.02.2010, the requirement of “providing the services from India for use outside India was mandatory and is not satisfied in the present case, the benefit of Export of Services Rules, 2005 will not be available to the appellants - benefit under Export of Service Rules, 2005 could not have been extended to the appellant, for the period prior to 27.02.2010. For the period after 27.02.2010, the said benefit has been extended to the appellant, to the extent they have shown that the payment against the said services was received in convertible foreign exchange.
Time limitation - Held that:- The appellants had not been declaring the income from media right agreement in their ST-3 returns, the appellants have suppressed the same with intention to evade payment of service tax. Thus extended period of limitation as provided for by the proviso to Section 73(1) has been rightly invoked for demanding Service Tax in the notice dated 14.10.2009.
Penalty - Held that:- Since we have held that extended period of limitation has been rightly invoked in the present case, the provisions of section 78 will get attracted automatically and hence the penalty as imposed in respect of the Show Cause Notice dated 14.10.2009 has to follow - Penalties under Section 76 and Section 77, are for the reason of contraventions of various provisions and acts of omission to perform the task as required to be performed under the provisions of the act. Such penalties are in nature of Civil Liabilities and do not require any contumacious conduct on the behalf of the defaulter. Penalties imposed under the provisions of Section 76 and 77 of the Finance Act, 1994 upheld.
Demand of Interest - Held that:- Since the demand of tax has been upheld the demand for interest will follow. It is now settled law that interest under Section 75, is for delay in the payment of tax from the date when it was due. Since appellants have failed to pay the said Service Tax by the due date interest demanded cannot be faulted.
Appeal allowed in part.
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2018 (12) TMI 871 - CESTAT BANGALORE
SEZ Unit - Refund claim - denial on the ground of time limitation - Section 11B of CEA - Principles of natural justice - Held that:- The learned Commissioner has not only violated the principles of natural justice in as much as he has not accorded any opportunity to be heard but also has gone tangentially decide the issue on a set of principles and provisions which are not at all applicable to the facts of the case.
The Commissioner (A) is directed to dispose the appeals under relevant provisions of law with reference to N/N. 12/2013 dated 01.07.2013 - appeal allowed by way of remand.
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2018 (12) TMI 870 - CESTAT CHENNAI
Adjustment of advance received with the excess available during March, 2006 and March, 2007 - finalization of provisional assessment - Held that:- The scope of provisional assessment and the tax paid in terms of the same is always taken note while passing the final assessment Order. If the duty paid as per provisional assessment is less than the duty payable after final assessment, then the assessee is liable to make good the balance along with interest on the shortfall.
The Hon’ble High Court of Karnataka in the case of M/s. Toyota Kirloskar Auto Parts Pvt. Ltd. [2011 (10) TMI 201 - KARNATAKA HIGH COURT], has considered this aspect and after considering the rival contentions and the relevant provisions of law, has held Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration.
The appellant is correct in its assertion that there was no shortfall and no interest liability since the shortfall of ₹ 47,44,656/- was for 2006-07 - service tax paid subsequently/belatedly attracts interest, which is for the year 2006-07 alone - there was no interest liability for March, 2006 i.e., for 2005-06.
Appeal allowed in part.
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2018 (12) TMI 869 - CESTAT CHENNAI
Construction of Residential Complex Service - non-payment of service tax - periods from May 2008 to September 2009 and from October 2009 to June 2010 - Held that:- The issue squarely covered by the decision in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI], where it was held that The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service. For the period after 1.6.2007, service tax liability under category of ‘commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, ‘Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 868 - CESTAT NEW DELHI
Recovery of Service tax short paid - booking tickets based on Central Reservation System - extended period of limitation - penalty - Held that:- Since part of the demand has already been dropped by the Commissioner and the DR is not in Appeal there is no infirmity in the Order. Period of Appeal has already expired. The Order has attained finality with respect to the demand dropped.
It is apparent from record that the demand has already been paid by the appellant in due time at the appropriate rate and the requisite returns have also been regularly filed. All these documents have been provided to the authorities below but still the amount of ₹ 1,11,415/- has been confirmed.
Since this is the appellant’s case that those documents, if perused, sufficiently prove that the impugned liability for the period in dispute stands already paid - it is opined that those documents be verified by the adjudicating authorities below itself, however to the said limited aspect of as to whether the documents on record are sufficient to prove the discharge of liability by the appellant for the disputed period that too in due time.
Penalty - Held that:- There has been a plethora of judgments holding that existing confusion cannot be attributed as an act of having intention to evade the duty. In the present case, appellant pleads that his duty has already been paid it is only that the authorities below have ignored to the same.
Extended period of limitation - proviso of Section 73 of Finance Act, 1944 - Held that:- Department was not entitled to undertake the proviso of Section 73 of Finance Act, 1944 for invoking the extended period of limitation. Hence, the demand beyond the normal period of limitation is held to be barred by time.
Appeal allowed by way of remand.
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2018 (12) TMI 867 - CESTAT AHMEDABAD
CENVAT Credit - input services - advertisement of tender - work quarters to AMC work - repair and maintenance of staff quarters at port - guest house of port colony and Mumbai guest house - Held that:- The service of repair and maintenance of staff quarters, guest house at port, the issue is covered by various decision of this Tribunal where the credit on said services are allowed.
Advertisement service - Held that:- This being a Government Organization inviting tender is must for allotting any work of service provider, therefore, service is essential and has direct nexus with output service - advertisement of tender is an input service and eligible for Cenvat Credit - credit allowed.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 866 - CESTAT CHENNAI
Transfer of intellectual property right service - transfer of Goodwill - scope of definition under section 65(55b) of Finance Act,1994 - Held that:- The Tribunal in the case of Alstom T&D [2018 (2) TMI 148 - CESTAT CHENNAI] had occasion to analyze a similar issue wherein a trademark which was registered / recognized outside India was subject to levy of service tax under IPR service. The Tribunal relied upon various decisions and held that the transfer of such trademark which has not been recognized or registered within India will not fall within the ambit of Intellectual Property Right Service.
The transfer of goodwill will not fall within the definition of IPR service as stated in Section 65(55b) of Finance Act, 1994.
Valuation and quantification of demand - The demand raised is based on the Transfer of Business Agreement (425.25 crores) from which the value for transfer of goodwill is derived by the department on the basis of trademark license agreement - Held that:- We fail to understand how the department can base this agreement to arrive at the value of goodwill when the fee for use of trademark agreed between parties to be 8.5% of annual domestic sale made by Mobis India Ltd. There is no domestic sale of good will annually - such a valuation derived by the department for the goodwill is also without any logic or basis.
Demand do not sustain - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 865 - CESTAT KOLKATA
Refund claim - export of services - Rule 5 of the Cenvat Rules read with the provisions of Notification No. 27/2012- CE(NT) dated 18-06-2012 - denial on account of nexus.
Held that:- The transaction undertaken by the appellants qualified to be “export of service”, as defined under Rule 6A of the Service Tax Rules, 1994. Since they were not in a position to utilize the accumulated Cenvat Credit, refund claim has been filed in terms of Rule 5 of Cenvat Credit Rules, 2004 read with the provisions of Notification No.27/2012 CE (NT) dated 18.06.2012.
Some of the input services do not qualify the definition of input services in terms of Rule 2 (e) of the Cenvat Credit Rules, 2004 - Held that:- Tribunal in various decisions has consistently held that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same are permitted to be utilized and when the same is not possible, there is provision for grant of refund or rebate. Without questioning the credit taken, the eligibility to rebate cannot be questioned.
Denial on the ground that the invoices are un-signed - Held that:- It is not in dispute that the payments have been made through Bank Account and this fact is subject to verification - the Adjudicating authority should provide a reasonable opportunity of hearing by observing the principle of natural justice after considering the submissions of the assessee.
Appeal allowed by way of remand.
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2018 (12) TMI 864 - CESTAT KOLKATA
CENVAT credit - freight for outward transportation of goods from their factory to the buyer’s premises - demand alongwith interest and penalty - Held that:- The issue is no more res-entigra in view of the decision of the Hon’ble Supreme Court of India in the case of Commissioner of Central Excise, Belgaum Vs. Vasavadatta Cement Ltd. [2018 (3) TMI 993 - SUPREME COURT], where it was held that From 01.04.2008, with the aforesaid amendment, the CENVAT credit is available only upto the place of removal whereas as per the amended Rule from the place of removal which has to be upto either the place of depot or the place of customer, as the case may be - credit allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 863 - CESTAT MUMBAI
Reversal of CENVAT Credit - Rule 6(3A) of the CENVAT Credit Rules - Held that:- Appellants are providing both taxable and exempted output services. They avail of the CENVAT Credit in respect of various inputs and input services, used by them for providing the output services. Since they are not maintaining the separate accounts in respect of the inputs/ input services consumed by them for providing taxable/ exempted output services they reverse the credit availed by them, as provided for by rule 6(3A) of the CENVAT Credit Rules, 2004.
Since Appellants themselves admit to taking the excess credit they at certain points of time and have subsequently adjusted the same, they are required to pay interest during the period they had taken the excess credit.
It is quite evident that appellants themselves are also not disputing the facts that they had availed excess credit at times and had also short paid the service tax due. The claim of the appellant that they have reflected the said service tax liability in their ST-3 return and had also paid the same by showing the debit entries in their return from the CENVAT Credit account is nothing but a hollow argument as they had not filed the ST-3 returns by the due date. These returns for the year 2008-09 and 2009-10 as per their own admission have been filed only in the year 2010-11. Since these returns have been filed not by the due date but after the delay of one to two years, appellant had deliberately being suppressing their tax liability and evading the payment of tax. Intention to evade payment of tax which very clear, from the manner they manipulated the ratio for reversal of credit.
Demand of Interest - Held that:- Appellants have by not computing the amount of reversal, appropriately have short reversed the credit initially taken by them resulting in excess credit with them. Reversal by way of debit entry in the CENVAT credit account is utilization of the Cenvat Credit taken - interest rightly demanded.
Penalty - Held that:- Since appellants have in fact suppressed the facts by not filing the ST-3 return with the intention to evade payment of Service Tax, all the ingredients for invocation of the Section 78 of the Finance Act, 1994 satisfied in the present case - all the ingredients for invoking extended period are available, Section 78 for imposing mandatory penalty is invokable.
Appeal allowed in part.
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2018 (12) TMI 862 - CESTAT KOLKATA
Rebate of service tax paid - export of goods - N/N. 41/2012-ST dated 29.06.2012 - Held that:- The issue is no more resintegra in view of the various decisions of the Tribunal holding a consistent view - this Bench in the case of Commissioner of Service Tax-II, Kolkata vs. SSK Exports Ltd. & others [2017 (11) TMI 299 - CESTAT KOLKATA], wherein under similar circumstances, Revenue has contended that the refund claim for each shipping bill should be examined on individual basis instead of overall basis - The Tribunal has upheld the order of the Ld. Commissioner (Appeals) wherein it was held that there is no requirement to determine FOB value shipping bill wise, to determine the formula enumerated in Para 1 (c) or in Para 3(i) of the notification and the rebate claim should be allowed in full when the assessee has specified the said condition on overall basis - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 861 - CESTAT KOLKATA
Rebate of service tax paid - export of goods - N/N. 41/2012-ST dated 29.06.2012 - Held that:- The issue is no more resintegra in view of the various decisions of the Tribunal holding a consistent view - this Bench in the case of Commissioner of Service Tax-II, Kolkata vs. SSK Exports Ltd. & others [2017 (11) TMI 299 - CESTAT KOLKATA], wherein under similar circumstances, Revenue has contended that the refund claim for each shipping bill should be examined on individual basis instead of overall basis - The Tribunal has upheld the order of the Ld. Commissioner (Appeals) wherein it was held that there is no requirement to determine FOB value shipping bill wise, to determine the formula enumerated in Para 1 (c) or in Para 3(i) of the notification and the rebate claim should be allowed in full when the assessee has specified the said condition on overall basis - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 860 - CESTAT KOLKATA
Penalty - Demand alongwith interest and penalty appropriated in the adjudication order - Held that:- There is no material of miss-statement or willful suppression of fact with an intent to evade payment of Service Tax - Further, the appellant has paid the entire amount of demand of ₹ 11,465/- alongwith applicable interest and 25% of the penalty imposed under Section 78, which has been appropriated in the adjudication order - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 859 - CESTAT KOLKATA
Refund claim - export of services - disallowance of such refund claim under various heads on the ground of lack of nexus/co-relation between the input service and the out-put service - Rule 5 of the Cenvat Rules read with the provisions of Notification No. 27/2012- CE(NT) dated 18-06-2012 - Held that:- In the present case, some of the input services do not qualify the definition of input services in terms of Rule 2 (e) of the Cenvat Credit Rules, 2004.
Tribunal in various decisions has consistently held that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same are permitted to be utilized and when the same is not possible, there is provision for grant of refund or rebate. Without questioning the credit taken, the eligibility to rebate cannot be questioned.
In some cases, the Cenvat Credit has been disallowed on the ground that the invoices are un-signed, but it is not in dispute that the payments have been made through Bank Account and this fact is subject to verification.
Appeal allowed by way of remand.
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2018 (12) TMI 858 - CESTAT KOLKATA
Non-imposition of penalty and Interest - CENVAT Credit - denial on the ground that the input services on which Cenvat credits have availed do not qualify for the same, under Rule 2 of Cenvat Credit Rules - Held that:- The appellant had been continuously informing the department about their intention of having centralised billing system and also paid the service tax for the various services rendered by them through their branch offices and site offices. The Department has not disputed the payment of such service tax. The ST-3 returns of the relevant period were filed also which clearly mentioned about the availment of the Cenvat credit by the appellant assessee. So in such circumstances, it cannot be alleged that the appellant assessee had any time suppressed the material fact from the department with intention of committing any fraud or suppression of the fact, before the department.
There is no question of suppression of fact and the demand, if at all is required to be raised by Revenue, it was to be done within normal period.
Interest - Held that:- As the entire demand have been paid by the assessee along with interest as per their own calculation which has been accepted by the adjudicating authority - interest not leviable.
Penalty - Held that:- The demand has been raised for the impugned period in year 2007 which is held to be time barred, as there was no suppression on the part of the appellant assessee. As the demand itself is not sustainable, there is no question of payment of interest and imposition of penalty.
Appeal allowed - decided in favor of appellant-assessee.
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2018 (12) TMI 857 - CESTAT KOLKATA
Utilization of CENVAT Credit - reverse charge mechanism - Management Consultancy Service provided from outside India and received by them in India - Rule 6(5) of the Cenvat Credit Rules, 2004 - Board’s Circular on Service Tax being F.No.137/203/2007-CX-4 dated 01.10.2007.
Held that:- The utilization of credit availed under Rule 6(5) of the Rules shall be allowed in full unless used exclusively for providing exempted services. Further, in cases where the assessee is providing both exempted and taxable output services, there is no restrictions provided by Rule 6(5) of the Cenvat Credit Rules, 2004 for utilization of such credit.
The issue is no more res-integra as has been observed in the Tribunal’s decision in the case of CCE vs. V.M. Salgaonkar & Bros. Pvt. Ltd. [2008 (2) TMI 90 - CESTAT MUMBAI], where it was held that it is undisputed that credit availed is on the service as mentioned in Rule 6(5), the credit of the entire/whole amount of service tax has to be allowed.
Appeal dismissed - decided against Revenue.
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2018 (12) TMI 793 - CESTAT ALLAHABAD
Nature of activity - service or sale - bottling of alcohol liquor on job-work basis - excisable goods or not - Held that:- An identical issue was the subject matter of the Hon’ble Madhya Pradesh High Court in the case of Maa Sharda Wine Traders vs. Union of India [2008 (3) TMI 319 - MADHYA PRADESH HIGH COURT]. It stands observed by the Hon’ble High Court that packaging activity means packaging of goods including pouch filling, bottling, labeling or imprinting of package which would get covered under the definition of ‘manufacture’ inasmuch as the same includes any process incidental or ancillary to the completion of a manufactured product.
If the bottling amounts to manufacture, the Revenue’s stand that the appellant is providing taxable services to the manufacturer of the rectified spirits cannot be upheld - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 792 - CESTAT ALLAHABAD
Classification of services - Works Contract Services or not - Mega Exemption Notification No.25/2012-ST dated 20.06.2012 - Circular No.80/10/2004-TRU dated 17.09.2004 - Held that:- Board Circular supports the assessee’s case and it is well settled law that revenue cannot go against the Board Circular.
Circular No.80/10/2004-TRU dated 17.09.2004 has observed that from the definition of work contract, it is very much clear that completion and finishing services, repair, alternation, renovation or restoration of, or similar services, in relation to construction of a new building or a civil structure or a part thereof, or of pipeline or conduit, primarily for the purposes of commerce or industry is within the purpose of tax.
Appeal dismissed - decided against Revenue.
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