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Service Tax - Case Laws
Showing 161 to 180 of 3430 Records
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2018 (12) TMI 385 - CESTAT BANGALORE
Short payment of service tax - it was alleged that the service provider suppressed the actual amount of cable service charges in the guise of repair charges and new connection material charges and for purchase of spare parts - principles of natural justice - Held that:- The original authority has passed the order mainly relying upon the contents of the letter dated 09.06.2006 which was withdrawn by the appellant and the same cannot be considered to be reply to the show-cause notice. Further the original authority has also not considered other submissions of the appellant. Further, the order-in-original was passed in violation of the principles of natural justice as the contentions raised by the appellant in their letter dated 11.08.2006, 19.09.2006 and 10.11.2006 have not been considered.
Further, both the authorities have wrongly imposed penalty under Section 76 and 78 which cannot be legally imposed - Further there is a calculation error in the computation of service tax and it appears that the adjudicating authority has taxed ₹ 1,85,392/- again.
The matter is remanded to the original authority to consider the submissions of the appellant submitted in letters dated 11.08.2006, 19.09.2006 and 10.11.2006 and pass a fresh order in accordance with law after considering the cenvat claim of the appellant also - appeal allowed by way of remand.
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2018 (12) TMI 384 - CESTAT NEW DELHI
Undervaluation - security agency service - manpower supply service - suppression of taxable value - it was alleged that value of taxable service declared by them under ST 3 returns was much less than what was declared in the balance sheet and books of accounts of the appellant firm for various financial years - demand of service tax alongwith Interest and penalties - extended period of limitation.
Demand on the ground that the appellant have evaded Service Tax by suppressing the taxable value in their ST 3 returns on taxable service namely, security agency service and manpower supply service - Held that:- The appellants have not contested that the figures given in the balance sheet which they have submitted before the investigating agency are not factually correct. It is also an admitted fact that the appellant had been indulging in fabricating and forging the figures given in the ST 3 returns vis-à-vis those given in the balance sheets. Even the duplicate (not based on real figures) were also prepared fraudulently and submitted before Departments Audit team - no evidence has been adduced by the appellant to controvert the facts that the taxable value declared by the appellant in ST 3 returns were not wrong and manipulated. We hold that demand and confirmation of service tax under section 73(1) of Finance Act, 1994 by the adjudicating authority is legally correct in principal.
Quantum of service tax demand - Held that:- The adjudicating authority need to examine the claim made by the appellant that the value of certain exempted services namely, the construction of road and its maintenance provided by them ought to have been deducted from the total taxable value before determination of demand of service tax from them - this fact need to be checked by the adjudicating authority whether the claim which is being made by the appellant is factually correct or not and if they have been engaged in the activity of construction of roads and its maintenance, same need to be considered and taxability of the same to be checked as per the prevalent provisions of the Finance Act, 1994 at the relevant time.
Whether the service tax is correctly been calculated on receipt basis before 1.7.2011 and on accrual basis after 1.7.2011? - Held that:- As per the provisions of service tax before 1.7.2011, the authorities should have determined the actual amount received in a financial year while demanding the service tax. However, this fact can only be checked at the level of original adjudicating authority - for the purpose of determining the financial year wise receipt of Service tax value prior to 1.7.2011, the adjudicating authority need to examine the balance sheet and other statement of accounts to re-determine the financial year wise receipts as claimed by the learned advocate and to re-determine the demand of service tax for particular financial year - matter on remand.
Cum-duty-benefit - Held that:- This fact also needs to be examined at the level of original adjudicating authority. As we find from the show cause notice that assessee have been collecting service tax on the value which is given by them on the invoices and which have been taken in the balance sheet However, since all the details are not available before us, we direct the adjudicating authority to examine the appellants claim in this regard.
Extended period of limitation - Held that:- This is an established case of intentional evasion of service tax by manipulating and forging the figures of the taxable value for levy of service tax by the appellant and therefore, we hold that the demand for extended time period is rightly invoked.
Appeal allowed by way of remand.
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2018 (12) TMI 383 - CESTAT NEW DELHI
Undervaluation - security agency service - manpower supply service - suppression of taxable value - it was alleged that value of taxable service declared by them under ST 3 returns was much less than what was declared in the balance sheet and books of accounts of the appellant firm for various financial years - demand of service tax alongwith Interest and penalties.
The appellant has mainly contested that their liability is to be determined on receipt basis and not on the basis of gross figures reflected in the balance sheet - whether the service tax is correctly been calculated on receipt basis before 30.06.2011? - Held that:- This fact can only be checked at the level of original adjudicating authority and therefore, we are of the view that for the purpose of determining the financial year wise receipt of Service tax value prior to 1.7.2011 and even upto 30.06.2011, the adjudicating authority need to examine the balance sheet and other statement of accounts to re-determine the financial year wise receipts as claimed by the learned advocate and to re-determine, the demand of service tax for particular financial year - matter on remand.
Cum-duty-benefit - Held that:- This fact also needs to be rejected at the level of original adjudicating authority. As found from the show cause notice that assessee have been collecting service tax on the value which is given by them on the invoices and which have been taken in the balance sheet However, since all the details are not available before us, we direct the adjudicating authority to examine the appellants claim in this regard - matter on remand.
Appellant also claim that they have paid an excess service tax of ₹ 3,00,221/- in the ST-3 return for 2009-10 - Held that:- There is no reason why the same should not be adjusted against their demand for the years 2009-10 to 2011-12, if the same is correct. If the claim of the appellant is correct, the same should be appropriated and adjusted against their present demand.
Extended period of limitation - Held that:- This is clear cut case of intentional evasion of service tax by manipulating and forging the figures of the taxable value for levy of service tax by the appellant and therefore, it is held that the demand for extended time period is rightly invoked.
Appeal allowed by way of remand.
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2018 (12) TMI 382 - CESTAT AHMEDABAD
Liability of sub-contractor to pay service tax - It is the case of appellant that main contractor is already paying the service ax and the liability on him will amount to double taxation - Held that:- In the instance case it has not been clarified in the certificate of M/s Furnace Fabrica (India) Ltd that whether service tax has been paid on the entire value of the service and if M/s Furnace Fabrica (India) Ltd was entitled to cenvat credit of the service tax paid by appellant. In these circumstances it cannot be said that liability of service tax on the appellant is amounting to double taxation. The argument that if service recipient is paying tax, such service provider would be exempt from payment of tax would destroy the entire structure of all the service tax law. Thus, the argument that no liability can be fixed for appellant because M/s Furnace Fabrica (India) Ltd has paid service tax it cannot be accepted. - demand upheld.
Wroks contract service or not - the argument of the appellant is that the services provided by the appellant are in the nature of work contract, therefore, they cannot be any liability of service tax for the period prior to 01.06.2007 - Held that:- From the work order placed to the appellant from M/s Furnace Fabrica (India) Ltd, it is seen that it is essentially work order for service.
The question is that whether inclusion of the value of consumables in the service would convert all item of service into work contract? Consumption of goods by service provider during the provision of the service does not automatically convert the service into work contract. If the scope of work contract is extended to including consumables then there will be no service which can fall outside the purview of work contract. Even consultancy service provided by engineer or advocate involves consumable like Paper, Ink, Pen, etc., service provided which are inclusive all the value of consumable cannot be treated as work contract. Thus, the service provide by the appellant cannot be treated as work contract as claimed by appellant - demand upheld.
Appeal dismissed - decided against appellant.
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2018 (12) TMI 381 - CESTAT NEW DELHI
Refund claim of service tax erroneously paid - case of appellant is that amount of service tax on transportation of said agricultural produce/ food grains under reverse charge mechanism was paid but the same was exempted as per N/N. 25/2012-ST dated 20.06.2012 - time limitation.
Whether the appellant was rightly claiming the exemption of Notification 25/2012-ST dated 20.06.2012? - Held that:- The said Notification grants exemption to the services provided by a goods transportation agency by way of transport in goods carriage of agricultural produce. Section 65B(5) of Service Tax Act, 1994 defines agricultural produce to mean any produce of agriculture on which either no further processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.
The processing done upon maize to extract sooji as well as atta is same and the processing is nothing more than grinding which is possible at the cultivator or the producer end. Though grinding may be a process of manufacture as far as the marketability thereof is concerned. But for the purpose of impugned exemption available towards GTA service for transporting agricultural produce. This process does not make any difference. Resultantly, both the products though acquire a distinct marketability but retains the essential characteristic of the derivatives of the agricultural produce i.e. maize. Maize sooji is a prederivative than maize atta in the process of grinding of maize - Otherwise also, the said Notification got amended vide Notification No. 03/2013 dated 01.03.2013 vide which the exemption was extended to food grains or food stuff and the transportation thereof vide its subsequent Notification No. 06/2015 of 01.03.2015.
Time Limitation - Section 11B of Central Excise Act - Held that:- This Section is applicable only where there is a statutory levy which is either not paid or is short paid - Section 11B of CEA was made applicable on the ground that the petitioner in that case has committed mistake of fact in understanding the Law as he assumed that the transaction for which he has paid tax is covered under law. In the present case, it is not the mistake of fact but the mistake of law that the Notifications extending exemptions to the appellant were not into his notice - the Adjudicating Authority below has committed an error while considering the claim as time barred due to non applicability of Section 11 B to the present case.
Rejection of refund claim also on ground of no production of documents, nor of any evidence - Held that:- In view of the admitted fact of appellant being engaged in manufacture of sooji and atta of food grains, in view of subsequent admission of Notification extending exemption to food grains/ agricultural products, in view of above discussion that sooji or food grain is also an exempted product under the said Notification, there remains no need of any evidence to be produced on record. The absence of document is a mere procedural lapse.
Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 380 - CESTAT ALLAHABAD
Business Auxiliary Service - deduction of handling charges while paying commission - demand of Service Tax - Held that:- ₹ 100/- deducted from the amount payable indicates that the amount paid by the respondent to their associates is paid less than that should have been paid. The whole transaction simply means that while paying commission, the respondent is paying less commission than required to be paid. Therefore, in the whole transaction the associates are rendering service and respondent is not rendering service and the respondent is recipient of service.
Demand do not sustain - appeal dismissed - decided against Revenue.
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2018 (12) TMI 379 - CESTAT CHANDIGARH
Interest on delayed refund - interest denied on the ground that the appellant has not filed refund claims in form ARE-1 at the time of filing of refund - Held that:- While issuing show cause notice to deny the refund claims of the appellant, no issue was raised that the refund claims have not been filed in form i.e. ARE-1. Therefore, the revenue cannot deny interest on delayed refund on the said ground - the appellant is entitled to interest on delayed refund after 3 months from the date of filing of refund claims till its realization - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 378 - CESTAT ALLAHABAD
Works contract service - evasion of payment of Service Tax - It is also alleged that appellant has wrongly classified the remaining service under ECIS and CICS with the sole intention to wrongly avail the benefit of Notification No.1/2006-ST dated 01.03.2006 - Held that:- Prior the appellant started Civil Construction, Errection or Installation at the agreed site, the equipments to be erected/installed at that site were agreed to be supplied to the appellant vide a separate agreement. This particular fact makes it abundantly clear that property in goods which were to be erected and installed by the appellant had not transferred in his favour at the site of construction and erection. Above all it is admitted and acknowledged fact that execution of three separate agreements was the mandate of the bid of company itself. We, therefore, are of the firm opinion that value of this contract cannot be treated as the part of the gross-value for the entire work done by the appellant.
Commissioning and Industrial Construction Services - Held that:- It is very much apparent that the technical specification, material for the projects were to be provided by the service recipient to the appellant. Relying upon the M/s Larsen & Toubro Ltd. (Supra) as above there is no doubt that the said contract is of work contract service altogether different from remaining two contracts. Department has alleged that the appellant has wrongly availed the benefit of notification 1/2006 but on perusal of show cause notice show that the impugned order‟s period is 01/10/2009.
Erection, Commissioning & Installation Services - Held that:- For executing this contract the goods required for the purpose were supplied to the appellant vide a separate agreement. No question for this service to become work contract arises nor for adding the value of three of the contracts as to gross-value liability under works contract service as alleged. It is apparent and admitted fact that the appellant is otherwise discharging liability for three of these contracts separately.
In the present case though we observe that same judicial indiscipline is committed by the Original Adjudicating Authority herein, however, keeping in view that the same is not the ground of appeal and also that the Commissioner has a bona-fide opinion of the present case being different from the previous one, we do not opt to impose any fine. However the Adjudicating Authority below are warned to strictly maintain the judicial decision.
Appeal allowed.
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2018 (12) TMI 377 - CESTAT ALLAHABAD
Advertising Agency Services - outward foreign exchange remittances - case of Department is that the appellant is recipient of imported services falling under the category of ‘Advertising Agency Services’? - Held that:- It is apparent and admitted fact for the present appeal that proposed demand of ₹ 2,90,23,827/- has been reduced to ₹ 4,58,833/-. The Adjudicating Authority below has considered various documents on record to hold that demand was wrongly proposed in the show cause notice without looking into the documents as that of certificate from the bank where appellant maintains account.
There is a catena of judgments to hold that adjudication cannot go beyond the scope of show cause notice. We draw our support from case relied upon by the appellant wherein it was held that the demand which is not permissible under any head to be proposed under the show cause notice, the imposition thereof is absolutely not permissible.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 376 - CESTAT AHMEDABAD
CENVAT Credit - GTA Service - credit for the period 20/4/06 to 12/07/2006 is not eligible for the reason that Rule 2(p) was omitted - service tax on inward GTA was paid by M/s Nirma Marketing Enterprise whereas the credit was availed by the appellant - credit on inward GTA was availed prior to 01/01/2005 when there was no reverse charge for the purpose of payment of service tax.
Denial of credit for the reason that explanation of Rule 2(p) was omitted - Held that:- The denial of credit on the ground that explanation of Rule 2(p) was omitted is absolutely incorrect for the reason that the appellant, even thereafter discharging the Service tax on Reverse Charge Mechanism. In term of Rule 2(r) of Cenvat Credit Rules, 2004, the person who is liable to pay the Service Tax is a deemed provider of service. Therefore, by virtue of this provision, since the appellant is undisputedly discharging the Service Tax even though on Reverse Charge Mechanism, he is deemed service provider. The inward transportation on deemed service is discharged is otherwise the input service for the purpose of Cenvat Credit as per the definition of input service under 2(l) of Cenvat Credit Rules. Therefore, the lower authorities have wrongly denied the Cenvat Credit on this ground - credit allowed.
Denial of credit for the reason that invoice of GTA is in the name of Nirma Marketing Enterprise - Held that:- Both Nirma Marketing Enterprise and appellant are separately registered and engaged in separate activities. Therefore, in the eyes of Service Tax laws both are separate assessee. Even though both are under the same company, both are separate assessee. Credit of one assessee cannot be transferred to another. Accordingly, the credit availed by the appellant on the strength of invoice which is in the name of Nirma Marketing Enterprises is not admissible - credit rightly denied.
Cenvat credit prior to 01/01/2005 was argued only on limitation - Held that:- Though the appellant have declared aggregate Cenvat amount in the ST-3 return but individual service wise credit detail is not available in the ST-3 return. The discrepancy was pointed out by the audit. Thereafter only the Show Cause Notice was issued. Prior to audit the fact was not disclosed to the department. Therefore, there is a clear suppression of fact on the part of the appellant. Accordingly, the demand cannot be set aside on account of time bar - Credit for the time prior to 01/01/2005 is upheld.
Appeal allowed in part.
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2018 (12) TMI 366 - CESTAT NEW DELHI
Short payment of service tax - mining of mineral, oil or gas services provided to Madhya Pradesh State Mining Corporation Ltd. - suppression of facts - penalty - Held that:- There appears no infirmity in the findings based on the statement of services provided during the relevant year, as provided by the appellant alongwith the ledger accounts of the service recipients that the appellant have paid service tax in excess during the period in question and that the charge of short payment of service tax as alleged in Show Cause Notice is not based on any evidential proof - demand withheld.
CENVAT credit wrongly availed - wrongly availed credit utilised for payment of service tax for the period July-September 2012-13 - the credit has been availed on the purchase of two machines vide two invoices dated 06.06.2011 and 24.12.2011 which were to be used to execute the work order of mining between the Corporation and the appellant - Held that:- The credit is rather permissible to be taken on both these machines by the appellants in another unit irrespective of the invoices showing the different address of the appellant - Even the CBEC Circular as relied upon by the appellant has clarified that where the goods are ordered by registered / head office of the assessee and the invoice does not bear the consignee address, the credit ought not to be denied - credit allowed.
Lapse of procedural compliance - rule 9 of CCR - Held that:- The Larger Bench of this Tribunal in the case Kamakhya Steel Vs. C.C.E. [2000 (8) TMI 113 - CEGAT, NEW DELHI] has consistently held that once duty paid character of goods, receipt at works and utilisation thereof stood established, credit ought not to be denied on procedural lapses/ minor deviations - the findings of Commissioner(Appeals) that the invoices produced by appellant are not containing correct address of the appellants registered premises but are having address of their other premises has wrongly been considered as a ground to deny the availment of cenvat credit on the capital goods used by the appellants for providing the output service - credit allowed.
Non-payment of late fees - ST-return for the period April-September 2011-12 filed on 22.04.2012 i.e. after a delay of 98 days - Held that:- It is observed that details of amount received and service tax paid for the last 5 years of period in dispute were provided by the appellant to the Department. Based thereupon, it is the finding of the authorities below that the service tax was paid in excess by the appellant during the period in question. Confirming the demand of late fee is apparently a contradictory finding and resultantly is not sustainable - demand set aside.
Penalty - Held that:- The onus was of the Department to prove the suppression of fact on part of the appellant to evade the payment of duty but the record of the matter and even the findings of the appellate authority are sufficient to prove that the appellant has been paying the excess duty for some of the financial years of the period in dispute and had been adjusting the same qua short payment is sufficient to hold that there is no intent to evade the duty. In absence thereof no question arises for imposition of penalty - penalty set aside.
Appeal allowed - decided in favor of appellant.
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2018 (12) TMI 344 - CESTAT AHMEDABAD
Valuation - includibility - inclusion of certain amount received on account of their services, such as NSE/BSE transaction charges and SEBI turnover fees in assessable value - Held that:- The issue is that the statutory NSE / BSE charges paid by the appellant Broker and subsequently collected from the client is includable in the gross value of Stock Broker service of the appellant.
The very same issue has been considered by this Tribunal in the case of Indses Securities & Finance Ltd [2018 (2) TMI 569 - CESTAT AHMEDABAD], where it was held that the charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service.
Demand not sustainable - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 343 - CESTAT MUMBAI
Penalty u/s 78(1) of the Finance Act, 1994 read with Rule 15(3) of the Cenvat Credit Rules 2004 - incorrectly availed CENVAT Credit - suppression of material fact - EA audit-2000 was conducted where credit was denied - Held that:- Admittedly there is no mechanism available for determination of admissibility of cenvat credit in the self assessment era for which EA audit 2000 procedure has assumed its importance.
Statutory audit procedure - Held that:- It cannot be said that only because audit party had found non-observance of partial reverse charge mechanism procedure in respect of certain services, without any reference to the categorising of service provider, appellant is to be tested for suppression etc.
Time Limitation - Held that:- The audit is a process which is carried on upwards from the last financial year audited till the last completed financial year preceding the date of audit which is contrary to the provision of Section 73(1) whereby if any fraud collusion, misstatement or suppression is noticed by the department, while processing a return or investigating a firm, the respondent department can go up to five years and serve show-cause to justify tax liability - In the instant case, show-cause was issued on 03.02.2017 calling for imposition of penalty under Section 78 for irregularity found in the financial year 2012-15. It is not understood as to what irregularity was noticed by the respondent department between 01.04.2015 to 03.02.2017, comprising of a period of 23 months to invoke extended period jurisdiction and go back to financial year starting from March 2015 to April 2012.
The irregularity as found in EA audit vis a vis prompt payment of service tax and subsequent payment of penalty in conformity to Section 78 (B), the confirmation of penalty under Section 78 is uncalled for - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 342 - CESTAT BANGALORE
Advance insurance commission received - demand of service tax - case of appellant is that they are not required to pay service tax on said income as service tax was already remitted at the time of receipt of advance on 31.03.2014 - Held that:- In view of the certificates furnished by the Chartered Accountant certifying that they had already remitted the tax on ₹ 6,50,000/- received from ICICI insurance company as advance commission and subsequently reduced the taxable insurance income to the extent of ₹ 2,29,544/- in 2014-15 and ₹ 4,20,456/- in 2015-16.
In view of the certificate of Chartered Accountant, the confirmation of demand of ₹ 27,842/- is not sustainable and therefore the same is set aside - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 341 - CESTAT NEW DELHI
Refund of cenvat credit taken on the inputs services - inputs services used in the manufacture of the finished goods which were subsequently exported - appellant is denied eligibility to avail cenvat credit on input services due to being exclusively used for exempted goods as per Rule 6(1) of CCR, 2004 and refund is also denied - refund also denied on the ground of non-registration of manufacture and also on the ground of non-distribution of credit - Held that:- Any manufacturer who clears a final product or an intermediary product for export is entitled for credit subject to above conditions. The appellant in the present case admittedly is engaged in clearing excisable goods however the controversy is whether the goods i.e. gems and jewellery were fully exempted or not.
Under Central Excise, “exemption” means exemption by Notification No. under Section 5A of Central Excise Act, 1944 thus goods exported under bonds are not exempted from duty. A conjoint reading of this Circular with the above requirements of Rule 5 makes it clear that a manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking which is exported without payment of service tax shall not be an exempted goods and as such shall be allowed refund of cenvat credit in view of Rule 5 of Cenvat Credit Rules - Notification No. 12 of 17.03.2012 is therefore not applicable in the case of export of excisable goods.
Non-registration of appellant for manufacture of excisable goods - Held that:- Rule 3 of Cenvat Credit Rules, 2004 prescribes that cenvat credit can be taken by a manufacturer or a provider of due to service and that there is no requirement of the registration at all - The finding of the Commissioner(Appeals) mandating the registration are therefore not sustainable.
Non distribution of the credit - Held that:- The goods of the appellant are excluded from the scope of “exempted goods” - Rule 7(b) of CCR, 2004 to reject the refund is not applicable.
Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 306 - CESTAT MUMBAI
Benefit of reduced Penalty u/s 78 of FA - part payment of tax made before issuance of SCN and part payment with interest made after issuance of SCN - Held that:- It is settled position that the assesee is required to be given an option by the adjudicating authority whether he is willing to pay the duty with interest and 25% penalty within 30 days from the date of adjudication. Whenever such option is not given, the facility of paying reduced penalty by fulfilling the condition of deposition of the same with interest within 30 days (along with tax dues if any) should be granted.
In the instant matter despite the fact that the Appellant has discharged the amount of Service Tax along with interest before passing the order by the Original Authority, the option about the reduced penalty has not been given to the Appellant - In the interest of justice the said option is extended to the Appellant and if the Appellant so desired he can deposit the reduced penalty of 25% within a period of 30 days from the date of communication of this order. Failing which he has to pay 100% penalty i.e. ₹ 1,95,692 after the expiry of 30 days.
Appeal disposed off.
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2018 (12) TMI 305 - CESTAT MUMBAI
Liability of Service Tax - amount paid for services received from the foreign company under reverse charge mechanism - CENVAT Credit - common input services used for trading activity - Rule 6(3A) of the CENVAT Credit Rules, 2004 - Extended period of limitation.
Non-payment of service tax - Service tax on services received from the foreign company - service tax with interest and penalty paid before issuance of SCN - Held that:- The appellant had accepted their liability and paid the entire amount of Service Tax with interest and later availed CENVAT Credit of the Service Tax paid, as mentioned in their written submission and the services stated in the said work-sheet were taxable services - analyzing the issue raised about proper classification of the service, in our opinion, would become more of academic exercise. consequently, the confirmation of demand of Service Tax, interest and penalty on this count in the impugned order does not merit interference and accordingly upheld.
Recovery of proportionate CENVAT Credit availed on various input services used for trading activity - Held that:- The admissibility of CENVAT Credit availed on input services used in providing trading activity, is no more res integra and covered by the recent judgment of this Tribunal in the case of Commissioner of Service Tax, New Delhi Vs. AVL India Pvt. Ltd. [2017 (3) TMI 793 - CESTAT NEW DELHI] where this Tribunal analyzing the amendment to the definition of exempted services w.e.f. 1.4.2011 observed that since trading activity itself is not a taxable service or activity subject to excise duty, therefore, subsequent amendment considering trading activity as 'exempted service' cannot entitle the assessee to avail the proportionate credit on various input services attributable to the trading activity.
Extended period of limitation - Held that:- The issue is clarified in the case of M/S AKSH OPTIFIBRE LIMITED VERSUS CCE, JAIPUR-I [2017 (11) TMI 1449 - CESTAT NEW DELHI], where it was held that The input services, on which credit was availed by the appellant, were consumed for trading activities and such credit could not have been availed or taken for discharging service tax on the services provided by the assessee, there is no scope for any interpretational misconceptional on this aspect - extended period rightly invoked.
The impugned order is upheld and the appeal is dismissed - decided against appellant.
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2018 (12) TMI 304 - CESTAT MUMBAI
Cash refund of accumulated CENVAT Credit - export of Service - refund denied on the ground of limitation - claim filed by the appellant for the quarter January, 2016 to March, 2016 on 31.3.2017 - Held that:- The relevant date from the date of receipt of FIRC is on 14.3.2016 - The issue is no more res integra and covered by the judgment of the Larger Bench of this Tribunal in the case of Span Infotech (I) Pvt. Ltd. [2018 (2) TMI 946 - CESTAT BANGALORE], where it was held that In respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis.
Refund is not barred by limitation - appeal allowed - decided in favor of appellant.
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2018 (12) TMI 303 - CESTAT MUMBAI
Penalty u/s 78 - failure to discharge tax - Construction services - construction of Power House near Hydro Electric Power Project - Held that:- Undisputedly the appellant had constructed Power House near Hydro Electric Power Project but wrongly claimed that they have constructed dam.
From the records, it is clear that they have failed to discharge Service Tax continuously for the period 2007-2008 to 2010-2011 even though they have rendered taxable services under the category of Construction Services - both the authorities below have rightly imposed and upheld penalty under section 78 of the Finance Act, 1994.
The impugned order is modified to this extent and appeal is partly allowed to the said extent of allowing to discharge 25% of penalty subject to fulfilment of condition prescribed under Section 78 of Finance Act, 1994 - appeal allowed in part.
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2018 (12) TMI 264 - CESTAT BANGALORE
Time limitation - Tour operator/business auxiliary service - amount received towards luggage collection, driver batta and casual contract and also received commission towards hotel booking, luggage collection hotel booking, luggage collection, driver batta and casual contract during the period 2004-05 - non-payment of service tax - Held that:- The appellant is a State Government undertaking which is engaged in providing various taxable services and after the audit, the appellant themselves computed the tax liability and paid the Service Tax of ₹ 1,46,390/- on 25th March 2006 whereas the SCN was issued on 16th January 2008 much beyond the period of one year - the appellants have not suppressed any material fact with intent to evade payment of tax.
Revenue has wrongly invoked the extended period of 5 years which is only applicable in the case of fraud, collusion, wilful mis-statement, suppression of facts or contravention of provision with intent to evade payment of Service Tax whereas in the present case, there is no material to hold that there was an intention on the part of the appellant to evade the payment of Service Tax.
On merits also, the appellant has a good case but since we are allowing the appeal on limitation itself, we need not go to the merits of the case - the entire demand is barred by limitation - appeal allowed - decided in favor of appellant.
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