|
Advanced Search Options
Service Tax - Case Laws
Showing 1 to 20 of 117 Records
-
2019 (9) TMI 1725
Classification of services - Business Auxiliary Services or not - education services rendered by service recipients - the services rendered are in the nature of business or not? - HELD THAT:- In view of the order of the Third Member all appeals are decided in favour of the assessee and against the Revenue. Appeals allowed.
-
2019 (9) TMI 1691
Refund of Service tax paid - various specified services used in or in relation to authorized operation in the SEZ - applicability of Notification No.9/2009-ST, dt.03.03.2009 as amended vide Notification No.15/2009-ST, dtd. 20.05.2009 - HELD THAT:- The club or association service is initially not included in the approved list, but later forming a part of the approved list. Hence, refund cannot be denied to the Appellant in view of the judgment in the case of Biocon Ltd [2019 (2) TMI 873 - CESTAT BANGALORE].
Similarly, since the service tax paid on life insurance service of the employees of the Appellant being included in the approved list, refund on this count cannot be denied to them in view of the judgment in the case of Tata Consultancy Services Ltd’s case [2012 (8) TMI 500 - CESTAT, MUMBAI].
Also, various input services which are wholly consumed within the SEZ, the service tax paid on such services cannot be denied as refund, in view of the principle of law laid down in the case of Barclays Ltd’s case [2015 (2) TMI 146 - CESTAT MUMBAI].
The impugned order being devoid of merit, is set aside - Appeal allowed.
-
2019 (9) TMI 1670
CENVAT Credit - ineligible documents - cargo sales report’ purportedly summarising ‘airway bills - in conformity with rule 9(1) of CENVAT Credit Rules, 2004 or not - HELD THAT:- The present appeal of Revenue has sought to challenge the finding of the adjudicating authority, on the acceptability of ‘cargo sales report’ for availing credit, with the proposition that the activity of the assessee was not ‘output service’, within the meaning of rule 2 of CENVAT Credit Rules, 2004, and, hence, the question of acceptability of documentation does not arise.
It is found from perusal of the show cause notices, that the only ground raised therein for disallowance of credit is the validity of the documents against which it had been availed.
Appeal dismissed.
-
2019 (9) TMI 1636
Levy of Service tax - user development fee (UDF) - airport services - Build Own Operate Transfer scheme (BOOT) - rejection of refund claim - it was held that the following difference of opinion arising in this appeal needs to be referred to a 3rd member for resolving the issue: Whether user development fee charged by the appellant in the case in hand, is taxable under the Finance Act, 1994 under the head of airport services as held by the Hon’ble Member (Technical) or not to be taxed as held by the Hon’ble Member (Judicial)?
HELD THAT:- The appeal filed by the appellant is allowed with consequential relief.
-
2019 (9) TMI 1592
Refund of accumulated credit - refund sought on the ground that the credit stands not utilised by the appellant for export of services - denial of refund on the ground that the input services has no nexus with the output services or the credit stands availed on the basis of the irrelevant invoices etc. - HELD THAT:- It is seen that no objection was raised by the revenue at the time of availing of credit. Rule 5 allows refund of accumulated credit and at the time of grant of refund, the Revenue is not permitted to examine the availability of the CENVAT credit. Such an exercise was required to be adopted by the Revenue at the time of availment of credit, by way of initiation of separate proceedings. Having not done that, it is not permissible to raise the objection at the time of grant of refund in terms of the said rule - The reliance by the Learned Advocate to the Circular no. 120/01/2010-ST dated 19.01.2010 clarifying the issue that by observing that there cannot be different yardstick for establishing nexus for taking of credit and for refund of credit, is appropriate.
The issue stands decided by the many decisions of the Tribunal. One such reference can be made to the Tribunal decision in the case of M/S BARCLAYS GLOBAL SERVICE CENTRE PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX (VICE-VERSA) [2019 (6) TMI 902 - CESTAT ALLAHABAD]. It stands held in the said decision that as no objection was raised by the Revenue at the time of availing the credit, such objection cannot be raised at the time of deciding the refund claim in terms of provision of Rule 5.
There are no merits in the stand of the Revenue - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1585
Levy of service tax - Business auxiliary services or not - commission earned while disbursing loan - activity is commercial in nature or not - HELD THAT:- This Tribunal has already decided the issue on merits against the appellant in NATIONAL CO-OPERATIVE DEVELOPMENT CORPORATION VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2018 (3) TMI 707 - CESTAT NEW DELHI] where it was held that there is no case for excluding income of appellant as commission in disbursing loan, from tax liability under BAS.
The demand is upheld - appeal dismissed - decided against appellant.
-
2019 (9) TMI 1551
Levy of penalty - Non-payment of service tax - service tax alongwith interest paid on being pointed out - Intellectual Property Service - HELD THAT:- The appellant assessee has already deposited the entire disputed service tax of ₹ 80,944/- and interest of ₹ 16,605/- on 10.12.2010 and the same has also been appropriated by the adjudicating authority.
It is deemed appropriate to invoke the provision of Section 80 in respect of the penalties imposed - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1536
Refund of CENVAT Credit - input services - Travel Agent Services - Club/Association Membership - Sponsorship Services - denial on the ground that the said services has no nexus with the export of service - HELD THAT:- Tribunal’s decision in same assessee’s case laying down that the said service has nexus with the export of services being undertaken by the appellant reported at KKR India Advisors Pvt Ltd. v. CCGST, Mumbai Central [2018 (6) TMI 797 - CESTAT MUMBAI] where it was held that All the services disputed by the Commissioner (Appeals) are admissible input services, hence the credit is available.
Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1531
Supply, and/or installation, of ‘transmission towers’ - 35 contracts entered into by the assessee with electricity distribution authorities - between 1st October 2004 and 31st March 2009 - Benefit of N/N. 12/2003-ST dated 20th June 2003 - HELD THAT:- It is seen that the adjudicating authority has accepted the computation of tax liability of ₹ 49,12,81,797 pertaining to the tax discharged under two of services existing prior to 1st June 2007. For the period between May 2007 and March 2009, total billing of ₹ 538,80,93,109 was, after abatement of value of goods/materials amounting to ₹348,39,74,000, was reduced to ₹ 190,41,19,109 on which tax of ₹ 353,49,122 was held as liable.
With the decision of the Hon’ble Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], the legality of levy of tax on composite contract, by recourse to entry for services simpliciter that existed prior to incorporation of section 65(105)(zzzza) of Finance Act, 1994, was negated. The eligibility to discharge tax under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 on contracts that were in existence even before 1st June 2007 has been approved by the Tribunal in M/S B.R. KOHLI CONSTRUCTION PVT. LTD. VERSUS CST, NEW DELHI [2017 (4) TMI 38 - CESTAT NEW DELHI] where it was held that subject to fulfilment of the conditions, the appellants are eligible to discharge service tax on such works contract, after 1-6-2007, in terms of composition scheme of 2007.
The charging of differential tax by denial of eligibility for the composition scheme is not correct in law - even on the ground of proper discharge of liability without recourse to the notification issued under section 11 C of Central Excise Act, 1944, the demand fails - Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1529
Refund of Service Tax - Renting of Immovable Property service - Real Estate Agent service - transfer charges - HELD THAT:- The demand of transfer charges was actually set aside, when it was demanded under real estate agent services. The only amount of transfer charges demand which was confirmed was pertaining to the period w.e.f. 1st July, 2010 onwards that too, when it was demanded under renting of immovable property services.
The demand for which the sanctioned refund has been adjusted is qua the transfer charges, which were demanded for the period w.e.f. December, 2009 to March, 2010 and from April 2010 to June, 2010 respectively, which means that the period in issue is before July, 2010. The entire demand of transfer charges as demanded under real estate agent services before July, 2010 has already been set aside by this Tribunal, the question of adjustment of the refund of an amount as was deposited at the time of filing the said appeal for the demand of the said period is apparently not sustainable.
The Commissioner (Appeals) has relied upon the fact that the appeal was partially allowed but has failed to appreciate that while being partially allowed, it is the amount in question i.e the transfer charges that too for the period before July, 2010 that the said demand was set aside - Commissioner (Appeals) has also committed an error while holding that demand for the period prior to July 2010 was confirmed with respect to the transfer charges.
The Commissioner (Appeals) has failed to appreciate the findings of this Tribunal in true spirit and has committed an error while holding the status of partially allowed appeal which was qua other demands than transfer charges as a ground to reject the claim of the appellant for not adjusting the refund qua a demand - Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1526
Convertible Foreign exchange or not - FIRC received in Indian Currency [INR] - HELD THAT:- In the instant appeals filed by the appellants, it is an undisputed fact that the payment has been received through foreign bank i.e. Mizuho Corporate Bank Ltd, for which, FIRC has been issued by the banks. The copy of FIRC has been submitted during the course of adjudication proceedings, which is evident from the recordings of both the adjudicating and appellate authorities.
The instant appeals are squarely covered by the decision of the Tribunal in the case of SUN-AREA REAL ESTATE PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2015 (5) TMI 885 - CESTAT MUMBAI] where it was held that FIRCs were issued and there is a specific certification that the payment has not been received in non-convertible rupees, which establishes that the payment received and mentioned in the FIRCs are other than non-convertible foreign exchange, in other words, the payment is in convertible foreign exchange.
Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1519
Demand of service tax alongwith the penalty - services provided outside India after 18.04.2006 - duty and interest were deposited on being pointed out before issuance of SCN - HELD THAT:- The issue relating to payment of tax on reverse charge on services received from outside India for the period post 18.04.2006 was a question of interpretation of law. The duty and interest were deposited on being pointed out by the department in 2007 much prior to the issuance of the Show Cause Notice. Further it is found that the Hon’ble Madras High Court in THE COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. JSW STEELS LIMITED [2017 (7) TMI 603 - MADRAS HIGH COURT].
Following the ratio laid down by the Hon’ble High Court, the penalty imposed is set aside - appeal allowed in part.
-
2019 (9) TMI 1518
Classification of services - services rendered under the subject contracts by the appellant - work of turnkey contracts on lump sum basis of design, engineering, fabrication, supply and erection, installation, commissioning of Central Air Conditioning plants at the customer’s premises - to be classified as “works contract” under Section 65(105)(zzzza) and hence liable to service tax on and from 01.06.2007 or as “erection, commissioning and installation” service under Section 65(39a) and taxable under Section 65(105)(zzd) of the Act for the period prior thereto? - HELD THAT:- This issue is no more res integra in view of the decision of the Hon’ble Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. While holding that indivisible works contracts were liable to service tax only on and from 1st June, 2007, whereafter Finance Act 2007 expressly made such contracts liable to service tax and it was held that Works contract were not chargeable to service tax prior to 1.6.2007.
Respectfully following the above decision of the Hon’ble Supreme Court, which are fully applicable to the instant case, it can be concluded that the services rendered by the appellant under the subject contracts are classifiable as works contract and are not liable to service tax under the Act during the period involved - the demand of tax and interest confirmed by the impugned order and the penalty imposed are unsustainable.
Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1517
CENVAT Credit - Input Service Distributor - whether credit distributed on ISD invoices issued by the said Regional Sales Offices (RSO) of the companies are admissible? - HELD THAT:- Since the Department has accepted the admissibility of Cenvat credit of the service tax on input services distributed by the RSOs of the applicants as ISDs for subsequent periods in case of both TSL and TSLD and identical issues are involved in the present appeals, accepting the principle of certainty and consistency in tax matters, it is held that the Cenvat credits availed in all the instant appeals are also legally and correctly availed by the appellants. Consequently, discussion on the other contentions raised by the parties in these appeals would be a mere academic exercise and, hence, not resorted to.
Reliance may be placed in the case of M/S. TATA STEEL LTD., M/S. SAIL, DURGAPUR STEEL PLANT AND COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS CCE, JAMSHEDPUR, CCE, BOLPUR AND M/S. SAIL, DURGAPUR STEEL PLANT [2016 (1) TMI 1059 - CESTAT KOLKATA] where it was held that Since the department has accepted the admissibility of cenvat credit on rails and railway track materials involving the same assessee, i.e., M/s SAIL, for subsequent period under the CCR, 2004 and identical issue is also involved in M/s Tata Steel’s case, therefore, adopting the principle of certainty and consistency in tax matters, the appellants are eligible to credit on rails and railway track materials.
Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1516
Renting of Immovable Property Services - short payment of Service Tax - POT Rules - N/N. 18/2011-ST dated 1.3.2011 - period 2009-10 to 2012-13 - HELD THAT:- None of the submissions as made by the Appellant has been considered by the learned Assistant Commissioner, who has failed to observe and refer to the relevant provisions of Rule 6(1) of the Service Tax Rules, as existing upto 31.03.2011 and has simply referred to the provisions which are effective from 01.04.2011 and which cannot be applied in the instant case since the amounts which have been written off as bad-debts pertained to the period prior to 01.04.2011. The learned Assistant Commissioner should have appreciated the fact that the liability under the Act upto 31.03.2011 was on cash basis i.e. Service Tax was payable only on receipt of consideration for services rendered since the language employed in the said Rule 6(1) clearly provides that Service Tax shall be paid by the 6th day/5th day of the month following the calendar month in which payments are received towards the value of taxable services.
The actual amount written off as bad-debts during the period 2011-12 is ₹ 28,07,404/- out of which ₹ 25,69,660/- pertains to the unrealized consideration for rendition of taxable services during the period falling before 01.04.2011 and the balance amount of ₹ 2,37,744/- pertained to the services rendered during the Financial Year 2011-12 in view of which the same has not been claimed for reduction from the balance of opening debtors since the liability on the said amount of ₹ 2,37,744/- was payable on accrual basis unlike in case of ₹ 25,69,660/- which was required to be paid only on receipt of the said amount.
Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1498
Classification of services - tour operator service - services like transportation, entry to monuments and joyrides etc. to the main tour operator in relation to a ‘package tour’ - case of the Department is that the Respondent is providing service contemplated under Rule 2(n)(iii) of the Notification, while the case of the Respondent is that it is providing service as contemplated under entry at Sl. No. 2(n)(i) of the Notification - benefit of abatement of Service Tax of 75% of the amount charged in gross receipts as per the Exemption Notification No. 01/2006 dated 01 March, 2006 as amended by Notification No. 38/2007 dated 23 August, 2007.
HELD THAT:- Entry at Sl. No. 2(n)(i) relates to services provided or to be provided to any person by a tour operator in relation to a package tour. The Explanation to the entry defines the expression “package tour” to mean a tour wherein transportation, accommodation for stay, food, tourist guide, entry to monuments and other similar services in relation to tour are provided by the tour operator as part of the package tour to the person undertaking the tour.
According to the Department, if even one service mentioned at Sl. No. 2(n)(i) is not provided, the service provider will not be entitled to the abatement contemplated under Sl. No. 2(n)(i) - It is not possible to accept the submission of the Department. Entry at Sl. No. 2(n)(i) does not require the service provider to provide each and every service mentioned in the Explanation. The meaning assigned to “package tour” in the Explanation is when transportation, accommodation for stay, food, tourist guide, entry to monuments and other similar services in relation to tour are provided by the tour operator as part of the package tour to the person undertaking the tour. There is no reason why if some of the service(s) are not provided, the abatement as contemplated under Sl. No. 2(n)(i) should not be available to the service provider. The service has to be provided by a tour operator in relation to a package tour.
It would also be pertinent to refer to the decision of the Supreme Court in Doypack Systems Pvt. Ltd. [1988 (2) TMI 61 - SUPREME COURT]. The Supreme Court observed that the expression ‘in relation to’ is a very broad expression and the observations are that “relating to” has been held to be equivalent to or synonymous with as to “concerning with” and “pertaining to”. The expression “pertaining to” is an expression of expansion and not of contraction.”
The services provided by the Respondent would fall under entry at Sl. No. 2(n)(i) of the Notification and the Respondent would be entitled to 75% abatement - Appeal dismissed - decided against Revenue.
-
2019 (9) TMI 1494
Rectification of Mistake - error apparent on the face of record or not - applicant herein had challenged the order of the Tribunal by recourse to the appellate jurisdiction of the Hon’ble High Court of Bombay but, thereafter, sought permission for withdrawal with liberty to file appropriate proceedings before the Tribunal - HELD THAT:- The applicant highlights non-consideration of the purported conclusion of the adjudicating authority in paragraph no. 13 of the order impugned before the Tribunal. A more diligent reading of the order would make it apparent this formed part of the narration of the several stages that preceded the issue of, and contained in, the show cause notice. In fact, the adjudicating authority taking note of this and, very rightly assuming the onus for ascertainment of claim, implied in the adjustment of taxes, that the charged amounts had been returned, sought reports from the jurisdictional field formation. It was the conclusion arrived thereon that was challenged in the appeal of the respondent herein.
That conclusion of the adjudicating authority was held to be incorrect by the Tribunal on application of provisions of Service Tax Rules, 1994 that, in the precedent decisions relied upon, were stressed as not amenable to inclusion of conditions beyond those stipulated therein. Any grievance with that finding is not mistake apparent on the record. The appeal before the Tribunal was that of the assessee and the statutory role assigned in appeal is that of confirming, modifying or annulling the decision appealed against based on the grounds raised in appeal and the relief sought. The Tribunal is not empowered to entertain any ground of appeal that was not agitated before it and the privilege of stipulating grounds of appeal remains only with the appellant - The applicant appears to entertain the belief that the appellate jurisdiction is no different from the review contemplated in section 129A of Customs Act, 1962 which is nothing but the superimposition of a preferred adjudication by the Committee of Chief Commissioners over the actual adjudication by the Commissioner.
There are no grounds to conclude that mistake apparent on the record has occurred in the order of the Tribunal - application dismissed - decided against Revenue.
-
2019 (9) TMI 1493
Levy of Service Tax - reimbursable amount of spares received from the manufacturers - case of Revenue is that the appellant had been reimbursed with the cost of replacement of spares while servicing of vehicle during the warranty period, but did not discharge service tax on the value of such reimbursement amount received from the recipient of service - HELD THAT:- The adjudicating authority had recorded that no documentary evidences were submitted by the appellant to show that it had maintained the records to demonstrate that the quantity of spares and consumable were used in providing such services. On a close reading of the adjudication order, we find that there is contradiction in the stand taken by the original authority. Thus, considering the submissions of the appellant that it had maintained adequate records and also paid VAT/CST, we are of the view that the matter should be remanded to the original authority for proper fact finding and verifying of the documents to arrive at the conclusion, whether the adjudged demand in question can be confirmed under the circumstances of the case.
It is expected that the original authority should closely examine the contents of the master Circular dated 23-8-2007, Notification No. 12/2003, dated 20-6-2003 for a proper conclusion on the issue regarding leviability of service tax on the appellant - Appeal allowed by way of remand.
-
2019 (9) TMI 1421
Business Auxiliary Service - overriding commission received from their principal i.e. Airline during the period 2004-05 - N/N. 13/2003-S.T., dated 20-6-2003 effective from 1-7-2003 - HELD THAT:- The demand is raised on overriding commission received by the appellant from KLM Royal Dutch Airlines in the course of Air Travel Agent Service. The department has demanded the service tax on the commission received by the appellant. The relevant period is 2004-05 during which the commission agent was defined as per Notification No. 13/2003-S.T. - the definition of Commission Agent was existing till 15-5-2005. As per the above the commission related to service was not taxable as per definition of Commission Agent Service. Therefore, the Service of Commission Agent of the appellant was not taxable during the relevant period, consequently demand is not sustainable.
Appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 1419
Classification of services - activity of transportation of RMC - Supply of tangible goods Service or not - according to Revenue it is supply of transit mixer by appellant - case of appellant is that service tax on STG would get attracted when the supply of tangible goods is for the use of a service recipient, but in the instant case the work orders did not relate to supply of ‘transit mixtures’ but related to transportation of RMC.
HELD THAT:- The Commissioner observed that the appellant had given on hire vehicles to the service recipient for use in the transportation of RMC from its plant to the premises of the customer though the right to possession and effective control over the vehicles remained with the appellant and it had to deploy manpower to operate and control the vehicles - This conclusion drawn by the Commissioner is a patently wrong understanding of the conditions of the work order.
The appellant did not give on hire the vehicles. Even the subject matter of the “work order is for transportation of Ready Mix Concrete in vehicle/vehicles from our Jaipur 1TD Ready Mix Plant at Jaipur”. The contract that has been awarded is also for transportation of Ready Mix Concrete from the plant of the appellant on the terms and conditions mentioned in the work order. Condition No. 1 of the work order is that the appellant shall load RMC in the vehicle and transport the same to the required destination and unload it at the customer's site. Merely because the work order requires the appellant to deploy a fleet of 6M3 capacity vehicles for transport of 9000 M3 of RMC every month does not mean that the appellant has given vehicles on hire. The work order only requires the appellant to ensure that it has available a fleet of vehicles adequate enough to transport a particular quantity of RMC every month. Even the transportation charges are under two heads. The first is payment of a certain amount for the quantity of RMC transported during a calendar month and a certain amount per km for the distance travelled for transportation of RMC during the month.
The Commissioner failed to appreciate that under the work order, the appellant was required to transport RMC for which purpose the appellant was required to load RMC in the vehicles of the appellant and transport the same to the required destination and unload it. The requirement under the work order that the appellant should have a fleet of vehicles, adequate enough to transport 9000 M3 RMC every month would not mean that the appellant had given the vehicle on hire. The Commissioner was required to examine all the conditions of the work order but the finding is based on an assumption that vehicle was hired for transportation of RMC - Commissioner also fell into an error in assuming that if a minimum load of 745 cum per month per vehicle is not loaded, then too the appellant would be entitled to payment on this minimum quantity to conclude that in this manner payment would also be made for goods that have not been transported and no consignment note would have been issued for the same.
The appellant has been rendering GTA service by transporting RMC from one place to another as per the directions of the service recipient. The finding to the contrary recorded in the impugned order by the Commissioner that the appellant was not performing GTA service but was performing STG service cannot be sustained.
Appeal allowed - decided in favor of appellant.
........
|
