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Service Tax - Case Laws
Showing 141 to 160 of 3430 Records
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2018 (12) TMI 554 - CESTAT AHMEDABAD
Refund of service tax paid on reverse charge basis - service received from the abroad for the period prior to 18.04.2006 - rejection of refund on the ground of unjust enrichment - principles of natural justice - Held that:- Necessary documents to prove that there is no unjust enrichment has not been submitted by appellant before original authority. Before Commissioner (Appeals) also they only submitted balance sheet and CA certificate, however, no further details like, Ledger, Schedule, etc. in support of the balance sheet were submitted before Commissioner (Appeals). Therefore, in absence of such documents, it is not possible to ascertain that whether the incidence of service tax paid and claimed as refund was passed on to any other person or otherwise.
In interest of justice an opportunity can be given to the appellant to satisfy the sanctioning authority regarding the issue of unjust enrichment by producing all the necessary documents - appeal allowed by way of remand.
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2018 (12) TMI 553 - CESTAT CHENNAI
Construction services - Construction of Residential Complex Service - Commercial Construction Service - demand of service tax - period March 2006 to June 2010 - Held that:- The issue involved in this case is no more res integra as the same has already been considered and laid to rest by the decision of this very Bench of the Tribunal 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] wherein it has been held that works contract cannot be taxed prior to 01.06.2007 and in respect of any contract which is a composite contract, service tax cannot be demanded under CICS/CCS for the period after 01.06.2007.
The issue being identical, the above ruling squarely applies to the case on hand. Further, no contrary decision was brought to our notice by the Revenue.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 507 - SC ORDER
Works contract service - valuation - inclusion of material supplied free of cost by the service provider in assessable value - Held that:- There are no merits in the appeal - the appeal is dismissed.
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2018 (12) TMI 506 - CHATTISGARH HIGH COURT
Management or Business Consultant Service - Non-payment of service tax - assistance in implementing Clean Development Mechanism (CDM) - sale and management of certified emission reduction certificates (CERs) - recovery of Service tax on reverse charge basis - Circular of the Board dated 27.06.2011.
Held that:- The definition under Section 65(65) of the Act, 2007 is in the widest possible term. The Agreement thereafter will have to be read and interpreted from what had been agreed between the parties which in our opinion is unambiguous. Obligations were created in terms of the Agreement which have been reproduced in earlier part of the order where the UK Company was also obligated to provide services in marketing the CERs to beget favourable terms for the petitioner- Company.
Keeping in mind that such concepts and obligations which have been created in terms of the Kyoto Protocol and the Agreement arising out of climate change, there has been some debate on such issue and no final opinion was available during the period such demand had been made, therefore, the Court could be inclined to hold that there may not be any occasion to impose penalty under Sections 76, 77 and 78 of the Act, 2007/
The appeal is otherwise dismissed except to the extent in relation to the imposition of penalty as made by the Assessing Authority.
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2018 (12) TMI 505 - CESTAT NEW DELHI
Voluntary Compliance Entitlement Scheme - Department observed that the tax dues declared by the appellant were for the subsequent period on the same issue for which a show Cause Notice dated 04.01.2011 for the period w.e.f. 01.01.2009 to 31.03.2010 had already been issued - Held that:- The demand in the impugned Show Cause Notice and the period in dispute is same. It becomes clear that the appellant has not disputed their liability of service tax amounting to ₹ 4,50,756/-, as demanded vide the present Show Cause Notice. No doubt the present Show Cause Notice was issued during the pendency of adjudication of the prior Show Cause Notice of 25.02.2014. But apparently it was issued after the proposal of rejection was confirmed vide original adjudicating authority’s order dated 18.05.2015. With the said rejection, the immunity from interest and penalty as was available to the appellant under VCES Scheme was no more available to them. Irrespective of the said rejection, the fact remains is that the service tax of ₹ 4,50,756/- stands deposited with the Department since 30.12.2013. Hence, the issuance of impugned Show Cause Notice is apparently qua the demand which stands already deposited.
Penalty - Held that:- It is an apparently admitted fact that the Department has knowledge of non payment of the impugned demand since the year 2011. It is also being conceded by the Department that a confusion was prevalent during the impugned period qua the liability with respect to renting of immovable property services - penalty not warranted and is set aside.
Order under challenge is sustainable only qua confirming the demand of interest on the amount of service tax of ₹ 4,50,756/-. Rest of the Order is set aside - appeal allowed in part.
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2018 (12) TMI 504 - CESTAT AHMEDABAD
Principles of Natural Justice - demand of Service Tax on various income - Income from Public Issue - Interest of RBI Relief Bonds - Interest received from others - Income from Mutual Funds - Income from Distributor and others - Held that:- The lower authority have not specifically discussed each heads of income arises and how the said income becomes taxable as a service. The impugned orders are therefore, set aside and matter remanded to the original adjudicating authority to clearly give finding in respect of each head of demand confirmed by Commissioner (Appeals) - appeal allowed by way of remand.
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2018 (12) TMI 503 - CESTAT AHMEDABAD
Penalty u/s 78 - Man Power Supply Service - service tax with interest paid on being pointed out - no suppression of facts - Held that:- The appellant have recorded all the transactions in their books of account. As per their letter dated 18.12.2012, they have explained that since they were providing the service to SEZ which was subsequently converted into DTA but they were not aware of the suit of the service recipient from SEZ Unit, they were under bonafide belief that service provided from SEZ unit is not chargeable to Service Tax. Therefore the payment of Service Tax was escaped under bonafide belief without any malafide intention.
The appellant did not have any malafide intention, more over the appellant immediately after pointing out by the Audit paid the Service Tax along with interest and intimated to the department - the case should have been concluded in as per the provision of Section 73(3) finance Act, 1994. According to which the department was not supposed to issue any show cause notice to the appellant.
Penalty set aside - appeal allowed.
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2018 (12) TMI 502 - CESTAT AHMEDABAD
Rectification of Mistake - includibility of value of material in aseessable value - Held that:- The invoices for supply of material for the purpose of carrying out the service of Erection, Commissioning and Installation, is in the name of service recipient. Therefore, the material portion is not part and parcel of gross value of the service provided by the appellant. Therefore, the value of material which was purchased in the name of service recipient, cannot be added in the gross value of the service provided by the appellant.
The value of material which was purchased in the name of service recipient, cannot be added in the gross value of the service provided by the appellant. Accordingly, the demand attributable to the material value raised by the lower authorities would not sustain and the same is set-aside - ROM Application allowed.
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2018 (12) TMI 501 - CESTAT AHMEDABAD
Classification of Service - Intellectual Property Service or not - appellant had received technical designs and drawings of locks from two foreign companies - Held that:- Only in a case where property rights is temporarily transferred on even for use on a temporary basis, can only be classified under the Intellectual Property Rights Services in the Finance Act, 1994 - In the present case, there is a claim of the appellant that there is transaction of outright sale of drawing. In support, he submitted certificate from the foreign supplier. However, the said certificates were not produced before the lower authorities. Therefore, the matter needs to be reconsidered for the period prior to 18.04.2006 - matter on remand.
Demand pertaining to period from 16/03/2005 to 18/04/2006 - Held that:- It is settled that service tax on reverse charge mechanism can be levied only with effect from 18/04/2006 when section 66A was enacted - Therefore, the demand for the period 16/03/2005 to 18/04/2006 is set aside.
Appeal allowed by way of remand.
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2018 (12) TMI 500 - CESTAT AHMEDABAD
Maintainability of appeal - Jurisdiction - case of appellant is that the appeal is not maintainable before this Tribunal that the right forum is the revisionary authority - Held that:- As per the cleared provision under Section 86 and first proviso to Section 35B(i) of the Finance Act, 1994, the revision application is maintainable before the revisionary authority - the appeal is not maintainable before this Tribunal - appeal dismissed being not maintainable.
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2018 (12) TMI 499 - CESTAT AHMEDABAD
Restoration of appeal - appeal was dismissed for non-compliance with pre-deposit - case odd appellant was that the pre-deposit was made though belatedly - Held that:- The appellant failed to comply the earlier order of this Tribunal and they also failed to comply with the Commissioner (Appeals) order, whereby pre-deposit was ordered. Considering all these facts, the Tribunal have already passed detailed and reasoned order on dismissal of the application for restoration of appeal vide order dated 28.01.2016. Thereafter, there is no change in circumstances, therefore, the present ROA is not maintainable.
Since the order dated 28.01.2016 has attained finality, the same cannot be disturbed - Restoration of appeal application dismissed.
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2018 (12) TMI 439 - CESTAT NEW DELHI
Nature of transaction - Sale or service - sale of post paid SIM - registration of post paid SIM - sale of Anant plan (Life time prepaid SIM) - Levy of service tax - time limitation - Held that:- The issue is squarely covered by Hon’ble Apex Court judgment in the case of M/s. Idea Mobile Communication Ltd. vs Union of India [2011 (8) TMI 3 - SUPREME COURT OF INDIA], where it was held that The position in law is therefore clear that the amount received by the cellular telephone company from its subscribers towards SIM Card will form part of the taxable value for levy of service tax, for the SIM Cards are never sold as goods independent from services provided - Demand of service tax upheld.
Time Limitation - Held that:- The appellant have not put forward any evidence to show that the fact of ‘sale of SIM card’ etc. and its value not being included in the taxable value, was in the knowledge of the department - Since the appellant have been working under self-assessment mechanism and if they are having any doubt in their mind, they should have sought clarification from the department regarding the includibility of the sale value of SIM and other plans in the taxable value for levy of Service Tax. However, they have failed to do that - plea that the demand is hit by period of limitation is not acceptable.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 438 - CESTAT CHENNAI
CENVAT Credit - various input services - denial on account of nexus - Air Travel Agent / Rail travel Agent Services - Cable operator services - Convention service - Membership service - Erection commission/installation service - Civil works services/Repairs and maintenance - Designing and printing services - Cleaning services/Housekeeping - Sponsorship services - Finance Lease services - Accommodation services.
Air travel agent / rail travel agency service - cable operator service - convention service - erection, commission and installation service - designing and printing service - cleaning service / housekeeping - sponsorship service - finance lease service - Held that:- The credit availed on air travel agent / rail travel agency service, cable operator service, convention service, erection, commission and installation service, designing and printing service, cleaning service / housekeeping, sponsorship service and finance lease service are eligible for credit - These issues were considered by the Tribunal in Xilinx India Tech. Services Pvt. Ltd. Vs CC., CE. & ST., Hyderabad-IV [2017 (1) TMI 658 - CESTAT HYDERABAD] - credit allowed.
Membership fees - Held that:- In CCE, Pune III vs Zensar Technologies Ltd [2015 (11) TMI 1561 - CESTAT MUMBAI] the said services were held to be eligible - These services therefore cannot be said to be for personal consumption - credit allowed.
Civil works / repairs and maintenance - Held that:- It is not possible to make out from the SCN or the order as to the services which come under works contract service and civil works services. This aspect needs to be reconsidered - matter on remand.
Accommodation services - Held that:- The appellant has to establish with necessary documents that the accommodation was availed for official purposes only. The Counsel for appellant submitted that the appellant would be able to furnish documents to establish that this was availed for official purposes only - the accommodation service also requires to be remanded to the adjudicating authority - matter on remand.
Appeal allowed in part and part matter on remand.
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2018 (12) TMI 437 - CESTAT ALLAHABAD
Advertising Agency Service - Print industry - electronic media - Revenue entertained a view that the appellant’s payment of Service Tax on 15% of the commission received by them is not proper and they should have discharged the Service Tax on the full value of 100% - CENVAT Credit.
Print industry - tax on 100% amount - Held that:- As the disputed issue stands considered by the Tribunal in various decisions, it was legally obligatory on the part of the adjudicating authority to go through the same and follow the decisions - Similarly the Circulars issued by the Board with which the authorities working under the C.B.E.C. are bound, as per settled law, should have been taken into consideration. Having not done so, we feel that the impugned order is required to be set aside and the matter needs to be remanded to the adjudicating authority for fresh decision - matter on remand.
Electronic media - tax on 100% amount - CENVAT Credit - duty paying document - Held that:- Appellant are ready to pay tax on the full 100% value collected by them from their customers and further forwarded to the electronic media - As long as the invoices show the appellant’s name, they would be eligible documents for the purpose of Cenvat credit.
Appeal allowed by way of remand.
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2018 (12) TMI 436 - CESTAT AHMEDABAD
Cargo Handling service - demand of accound of MPSEZ issued debit notes on account of deficiencies of service - adjustment of excess paid service tax - period November 2011 to March 2011 - Held that:- The debit notes issued were in respect of deficiency of service provided by the appellant on which on the entire value service tax was paid. Since the debit note was issued, the value of the output service stand reduced, in such case on the amount of debit note, the service tax is not payable - however, since the appellant have already paid the service tax in the entire bill value and due to deficiency in the service, the excess paid service tax is adjustable in the future liability.
CENVAT Credit - denial on the ground that the appellant have taken credit on the debit notes raised by MPSEZ towards the part of service provided by 3rd party to MPSEZ - Held that:- Since the appellant invoice is inclusive of service provided by 3rd party, the MPSEZ has issued a debit note, therefore, the service for which the debit note was raised which was provided by the 3rd party is a deemed input service for the appellant - credit allowed - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 435 - CESTAT AHMEDABAD
Benefit of abatement - commercial and industrial construction services - case of the department is that abatement of 67% is not admissible as per the aforesaid Notification on the ground that the service provided by the appellant is falling under the category of site formation and clearance, excavation and earth moving and demolition - Held that:- It is clear that the site clearance and excavation is an incidental and ancillary to civil work - the service is correctly classifiable under the commercial or industrial construction service.
The abatement on 67% as per Notification 01/2006-ST is legally admissible to the assessee - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 434 - CESTAT AHMEDABAD
Benefit of abatement - construction of residential complex - denial of abatement on the ground that activity of the appellant is in the nature of completion and finishing services - Held that:- The period involved in the present case is April, 2005 to September, 2007. The issue of work contract was not considered by the lower authority.
Since the lower authority had no occasion to deal with this vital issue matter needs to be reconsidered - appeal allowed by way of remand.
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2018 (12) TMI 426 - CESTAT HYDERABAD
CENVAT Credit - common inputs and input services used of manufacture of goods as well as for taxable and exempt service - non-maintenance of separate records - Rule 6(3A) of CCR 2004 - Extended period of limitation - Held that:- The intention of the Legislature was that a manufacturer or a service provider should not avail the entire CENVAT credit of the service tax paid on common input services and should avail proportionate credit attributable to the taxable output service for which the CENVAT credit Rules provides for maintaining separate accounts.
Appellant herein has followed this rule by taking the credit of only an amount which is attributable to the taxable services provided by him and not availing the CENVAT credit of the input services which are attributable to the trading activity. By availing only the CENVAT credit of the service tax paid attributable to the taxable services, in my view, appellant had complied with the provisions of Rule 6(2).
The decision in the case of M/S. TRANS ASIAN SHIPPING SERVICES PVT LTD VERSUS THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX (VICE-VERSA) [2018 (9) TMI 922 - CESTAT BANGALORE], is directly applicable to the facts of present case, where it was held that the appellants have maintained separate records and as such, there is force in the arguments made by learned counsel for the appellant-assessee.
Extended period of limitation - the records of the appellant were audited time and again by EA 2008 audit - Held that:- The audits were regularly conducted and this objection was never raised, in view of it, even on limitation also appellant succeeds.
Appeal allowed on merits as well as on limitation.
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2018 (12) TMI 387 - MADHYA PRADESH HIGH COURT
Service provided by way of technical testing or analysis of new developed drugs - exemption from payment of service tax - Held that:- This Court after taking into account the material available on record, is of the opinion that the present appeal certainly deserves to be admitted on the substantial questions of law - it is directed that the respondent shall not take any coercive action against the petitioner.
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2018 (12) TMI 386 - KERALA HIGH COURT
Out-door catering services or not - appellant was a contractor conducting a canteen in the premises of M/s. Hindustan Newsprint Ltd. - Held that:- The High Court exercising its extra-ordinary power, could also look into the hardship caused especially in the context of the Appellate Authority having found the specific transaction to be not taxable and not coming within the ambit of a taxable service under the Finance Act, 1994 - In the present case, as we already noticed, there is no taxable transaction insofar as the transaction of the appellant having been held to fall outside the definition of out-door catering service, on which alone, the assessment was made under the Finance Act, 1994.
The Assessing Officer could not have imposed tax, especially on the finding rendered by the First Appellate Authority which is accepted by the Department - the demand made be not proceeded with on the certain condition being complied - appeal disposed off.
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