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Service Tax - Case Laws
Showing 101 to 117 of 117 Records
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2019 (9) TMI 241 - CESTAT NEW DELHI
Jurisdiction to issue SCN - Centralised registration taken at Delhi - SCN issued by issued by the Commissioner of Central Excise, Jaipur - HELD THAT:- It is undisputed fact that in this case the appellant has obtained the Centralised Registration including the unit at Jaipur with the Commissioner of Service Tax, Delhi. In the previous Show Cause Notice to the appellant the demand has been issued by the Commissioner of Service Tax Delhi, and which was adjudicated by him - So we find as far as jurisdiction is concerned, it is settled in view of Centralised registration that Commissioner of Central Excise and Service Tax, Jaipur lacks the jurisdiction to issue SCN and adjudicate the case in view of the provisions as contained in Rule 4(2) of Service Tax Rules, 1994.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 222 - CESTAT CHENNAI
Demand of service tax - manpower supply services - different approach of the revenue against the different assessees who provides similar services - contention of the appellant is that the appellant has never supplied any Manpower whereas by virtue of the respective agreements, they only carried on the assigned work on job work basis for which, the materials were supplied by the appellant and they are not amenable to service tax - HELD THAT:- One of the sample Bills reproduced by the Ld. First Appellate Authority is not the only activity performed by the workers engaged by the said contractor and nor does the relevant agreement say that the agreement/contract entered into with the particular contractor, or any other contractor for that matter, was only for processing and cleaning because I find that all the agreements are similarly worded.
The First Appellate Authority holds in respect of two contractors that the agreements/contracts in question were for job work and deletes the tax demand which was raised by holding that the agreements were not for supply of Manpower Services, but retains the tag of “Manpower” as against job work in respect of the agreement with M/s. Sri Kavery Agency. Undisputedly, the Revenue is not in appeal in respect of the other part of the Order of the First Appellate Authority and therefore, on the very principles of consistency, when there is no change of facts, the impugned order of the First Appellate Authority cannot be sustained since different yardsticks cannot be adopted for identically situated assessees especially when neither Show Cause Notice nor Order-in-Original even whispers about any such dissimilarities.
There is also no reasoning to accept the contentions of the Revenue that the agreements/contracts entered with the above three contractors are different because, the Show Cause Notice does not allege any such differences and nor is there any finding to this effect by the Adjudicating Authority in the Order-in-Original.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 221 - CESTAT ALLAHABAD
Manpower Recruitment/Supply Agency Services - period October, 2007 to March, 2012 - invocation of extended period of limitation - HELD THAT:- Admittedly SCN stand issued on 20.04.2013 covering the period from October, 2007 to March, 2012 - The appellant is a proprietory Unit and as soon as they came to know about their tax liability, they got themselves registered with the Department and started paying Service Tax regularly. Further, the appellant was not collected any Service Tax from M/s IFFCO. Further, the scrutiny of the agreement also reveals that there was a clause to the effect that if Service Tax is applicable, that will be payable by M/s IFFCO on production of documentary evidence. This clearly shows that the Service Tax liability shall be borne by M/s IFFCO, in which case there may not be motive on the part of the assessee to avoid payment of service Tax. These facts leads to establish bona-fide on the part of the assessee.
Also, Revenue has not referred to any positive evidence on record to establish mala-fide intent on the part of the appellant. Mere non-taking of registration and non-filing of ST-3 Returns under a bona-fide belief of non-taxability of the Services, would not establish suppression, with mala-fide intent on the part of the assessee - the longer period would not be available.
Penalty - HELD THAT:- As longer period is not available, penalty also set aside.
As a part of the demand falls within the limitation period, the same shall be calculated by the Original Authority to whom the matter is being remanded for the said purpose - Appeal allowed by way of remand.
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2019 (9) TMI 178 - CESTAT ALLAHABAD
Time Limitation - Liability of service tax - Clearing and Forwarding Agent Service - Storage and Warehousing Service - Packing Services’ Goods Transport Agency Service - HELD THAT:- The contentions raised by the appellant relates to the factual verification, which cannot be done at the level of the Tribunal.
Extended period of limitation - HELD THAT:- In the absence of any evidence to the contrary indicating any mala fide on the part of the assessee, the extended period of limitation was not available to the Revenue. However, a part of the demand falls within the limitation period and as such, we have not given any findings on merits on the ground of factual verification.
The matter remanded to the Original Adjudicating Authority to deal with the merits of the case for the period falling within the limitation and to re-decide the same after taking into consideration the appellant’s contention - appeal allowed by way of remand.
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2019 (9) TMI 124 - MADHYA PRADESH HIGH COURT
Renting of immovable property service - supplying the tangible goods to persons - non-compliance with the Section 67 of the Finance Act 1994 - HELD THAT:- Appellate authority summarily dismissed the appeal on two counts, firstly, on the point of delay and secondly, on the point of non-deposit of necessary pre-requisite amount as is required under the Act of 1994. Both defaults went to the root of the matter - Consequently, the respondents were fully justified in dismissing the appeal on both counts.
Petition dismissed.
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2019 (9) TMI 123 - CESTAT NEW DELHI
Management, maintenance or repair service - amount received from the customers for Corpus Fund / Escrow Fund and Maintenance Security Deposit - liability of service tax - HELD THAT:- In the present case, we consider it appropriate to remand the matter for a consideration as to whether the Corpus Fund / Escrow Fund before transfer of the said fund to the society was utilized by the appellant for replacement of any of the items for it is only in such a situation that it could be levied to service tax.
Maintenance and security amount -HELD THAT:- The contention of the learned counsel for the appellant is that it is distinct from “maintenance charges” and since the refundable maintenance security deposit is ultimately transferred by the appellant to the resident co-operative society, it cannot be said that the maintenance security deposit is towards any service - The maintenance security deposit is to cover an exigency when the owner of the house does not pay the maintenance charges after the society is formed. It has, therefore, to be ascertained whether this amount before it is transferred to the society has been utilized. This aspect of the matter, therefore, also needs to be examined on remand.
Demand of service tax - late payment charges - HELD THAT:- Any additional amount collected towards delay in making the payment of the installments cannot be subjected to levy of service tax. This position stands clarified by the Circular dated 3 August 2011 issued by the Central Board of Excise and Customs New Delhi - Demand set aside.
Short payment of service tax - period 1 July 2011 to 30 September 2012 - payment made on receipt basis instead of accrual basis - HELD THAT:- The payment is made on receipt basis instead of accrual basis had actually deposited the amount prior to the issuance of the show cause notice and that is why the amount has also been appropriated in the impugned order - only aspect that needs to be examined in regard to this issue is about the penalty that has been imposed by the Commissioner.
Appeal allowed by way of remand.
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2019 (9) TMI 122 - CESTAT HYDERABAD
RCM - payment of guarantee fee towards receipt of Bank Guarantees - Banking and other Financial Services - the overseas service providers Dexia and Cordaid who had provided bank guarantee services to the appellant had provided Banking and other Financial Services - reverse charge mechanism - HELD THAT:- A plain reading of Section 65(12) shows that it covers various services including providing a bank guarantee by a banking company, financial institution or any other body corporate or commercial concern. It is true that Dexia and Cordaid are not banking companies but they have provided bank guarantees through Standard Chartered bank and through Robo, Netherlands, respectively to guarantee the borrowings by the appellant. Learned counsel argued that these are corporate guarantees and we are not convinced. These are not the guarantees provided by a corporation for it’s subsidiaries but are pure bank guarantees provided through banks by the service providers - the appellant received banking and financial services from abroad and is liable to discharge service tax under reverse charge mechanism.
Extended period of limitation - period April 2009 to March 2012 - revenue neutrality - HELD THAT:- The entire demand is under reverse charge mechanism and if the appellant had paid the service tax under reverse charge mechanism, they would have been entitled to CENVAT credit of exactly the same amounts. Therefore, the revenue neutrality in this case is evident - the entire demand is hit by limitation and therefore needs to be set aside.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 121 - CESTAT KOLKATA
Imposition of penalty u/s 77(1)(a) and section 78 of the Finance Act, 1994 - non-payment of service tax under reverse charge mechanism - GTA service - intent to evade present or not? - HELD THAT:- The levy of service tax under GTA service under reverse charge was a new subject for which there was non-payment of tax. The assessee is a PSU. No evidence has been brought on record to show that tax was deliberately not paid. On being pointed out, the assessee obtained service tax registration and made the payment by availing prescribed abatement.
The appellant is entitled to relief under Section 80 of the Act for waiver of penalty - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 120 - CESTAT NEW DELHI
Condonation of delay in filing appeal - delay of more than one month after the expiry of normal period of limitation - power of Commissioner (appeals) to condone delay - HELD THAT:- Even if the appellant stand that the order was not originally received by them is accepted we find that the copy of the order was again provided to them under the cover of letter dated 30.04.2012. As such, even if the letter dated 30.04.2012 is taken as the relevant date the appeal filed in October, 2013 is barred by limitation. It is well settled law that Commissioner (Appeals) has no powers to condone the delay beyond the period of one month provided under the Act.
Reference can be made to the decision of the Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT].
Appeal dismissed.
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2019 (9) TMI 119 - CESTAT ALLAHABAD
Demand of service tax - renting of immovable property - appellant had taken a stand that said income was from renting of residential dwelling, which were not taxable - HELD THAT:- Inasmuch as the issue relates to the production of evidence to support the assessee’s stand, we are of the view that the appellant should be given another chance to produce the evidence, in support of their plea - the impugned order is set aside and matter is remanded for fresh decision.
Appeal allowed by way of remand.
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2019 (9) TMI 118 - CESTAT HYDERABAD
Business Auxiliary Services - rendering of services in relation to threshing and redrying of tobacco leaves - GTA Services - HELD THAT:- On identical issue was decided by this bench in the case of M.L. AGRO PRODUCTS LTD. VERSUS COMMISSIONER OF CUS., C. EX. & S.T., GUNTUR [2017 (2) TMI 1355 - CESTAT HYDERABAD] wherein, it was held that service tax liability on threshing and redrying of tobacco leaves does not arise under the category of Business Auxiliary Services. The said judgment of the Tribunal was carried in Civil Appeal by the revenue before the Apex Court and Apex Court dismissed the said Civil Appeal, after condoning the delay - thus, the appeal of the appellant on the issue of tax liability under the category of Business Auxiliary Services stands allowed.
GTA services - HELD THAT:- The said liability arises and accordingly we uphold the demand of ₹ 34,000/- along with interest on GTA services, but noticing that the appellant could have entertained the bonafide belief that the tax liability may not arise on GTA services, by invoking the provisions of Section 80 of the Finance Act, 1994, we set aside the penalties imposed on appellant.
Appeal disposed off.
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2019 (9) TMI 117 - CESTAT MUMBAI
Refund claim - unjust enrichment - Retrospective exemption - Works contract service - Management, Maintenance or Repair Service - HELD THAT:- No service tax shall be levied or collected in respect of management, maintenance or repair of roads, during the period from 16.6.2005 to 26.7.2009 (both days inclusive). The period involved in the present appeal is also 16.6.2005 to 26.7.2009. It seems that the learned commissioner rejected the refund of service tax on the ground of unjust enrichment because it has been recorded in the impugned order that the appellants have failed to produce the letter from NHAI that they have not paid the service tax to the Appellant.
The appellants have not received any amount against service tax from NHAI and that they have paid the service tax amount of ₹ 6,19,766/- out of their own pocket under the category of ‘Management Maintenance and Repair’ service for the period 2005-06 to 2009-10. According to us this evidence is sufficient to establish that the service tax has not been passed on to the customer i.e. NHAI by the Appellants - Appellants are eligible for refund of service tax.
Penalty u/s 78 - HELD THAT:- Had the service tax been not there, no penalty would have been imposed on the Appellants. Only because the appellants did not challenge the imposition of penalty and deposited the same without challenging it, cannot be a ground to refund the penalty because without demanding service tax, penalty cannot be imposed. Once service tax is set aside or refunded, penalty cannot survive. Therefore since the Service tax itself has been ordered to be refunded as aforesaid, the penalty deposited by the Appellant for default in not depositing the service tax on time, is also liable to be refunded.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 75 - CESTAT KOLKATA
Scope of SCN - case of appellant is that Commissioner has traversed beyond the scope of Show Cause Notice by not appropriating the amount of Service Tax paid by them through Cenvat Credit while he has appropriated the amount paid by cash - denial of cum-duty benefit.
HELD THAT:- Revenue claims that only when the appellants have submitted that a part of the demand has been paid through Cenvat Credit, Ld. Commissioner had to go into the issue to find that Ld. Commissioner held that the condition for allowance of Cenvat Credit in respect of input service is as per Rule 4 (7) of the Cenvat Credit Rules, 2004. He holds that for availing of Cenvat Credit, the noticee must pay the value of input service check with the documents submitted by the appellants as to the correctness of their claim - We find that for this issue, it is required to go through the claim of the appellants about the arithmetical correctness of the duty paid by them through Cenvat Credit, verification needs to be undertaken by the Adjudicating Authority - matter remanded back for reconsideration.
Benefit of Cum Duty value while computing the duty liability - HELD THAT:- The appellants are a Public Sector Undertaking and as such, as held by the Tribunal as well as various Courts Mens- aria cannot be assumed in respect of PSUs - It was consistently held that no particular person or officer could be benefited by such suppression/mis-declaration by the Organization. Therefore, the appellants are entitled to the benefit of Cum Duty price. The amounts received by them by the appellants from their Customers should be treated to be inclusive of Service Tax and accordingly, the liability of Service Tax re-calculated - For this purpose, also the impugned order needs to go back to the Adjudicating Authority.
Appeal allowed by way of remand.
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2019 (9) TMI 74 - CESTAT NEW DELHI
Short payment of service tax - discharge of liability on accrual basis or on receipt basis - Point of Taxation rules - According to the Department, the Appellant had short paid service tax amounting to ₹ 1,76,429/- for the year 2007-2008, whereas according to the Appellant there is no short payment of Service Tax liability because this amount of Service Tax was discharged by the Appellant in April, 2008, since ₹ 14,27,411/- was received by the Appellant in April, 2008.
HELD THAT:- It is not in dispute that prior to 1 July, 2011, the Appellant could have discharged Service Tax liability on receipt basis even though the ledger was maintained on accrual basis. If that be so, then it is clear from the financial summary referred to above submitted by the Appellant, that the short paid Service Tax demanded in the Show Cause Notice to the extent of ₹ 1,76,429/- is towards receipts issued in 2007-2008 for an amount of ₹ 14,27,411/-, which amount the Appellant received in the month of April, 2008 - The adjudicating authority has not accepted this contention of the Appellant only for the reason that the figures in the two challans do not correspond to tax liability of ₹ 1,76,429/-.
The adjudicating authority committed an error in rejecting this contention of the Appellant for the reason that the tax amount mentioned in the two challans would also include that tax amount for the other amount received by the Appellant in the month April, 2008. It would have been different if the amount mentioned in the Challans was lesser than ₹ 1,76,429/- because in that case the Appellant would not have discharged the entire tax liability - The Commissioner (Appeals) completely failed to advert to this issue in the order even though the said submission was noticed by the Commissioner (Appeals) in the impugned order.
There is no short payment of Service Tax for the period in issue - appeal allowed - decided in favor of appellant.
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2019 (9) TMI 73 - CESTAT BANGALORE
CENVAT Credit - common input services used for manufacture of dutiable goods and for providing the exempted service - non-maintenance of separate records - Rule 6 of the CENVAT Credit Rules 2004 - Penalty u/s 78 - HELD THAT:- The impugned order imposing penalty under Section 78 equal to the proportionate credit is not sustainable in law because of the fact that there was no suppression with intention to evade payment of duty. Further, in the earlier audit for the period August 2009 to July 2014 , the Department did not raise any objection in spite of the fact that the Department was aware of the input credit, which the appellant was availing. It is only during the subsequent audit that this objection was raised and the present show-cause notice was issued.
The appellant is entitled to avail the benefit of less penalty provided under Second proviso to Section 78(1) of the Act which he has rightly availed. The order of the Commissioner(Appeals) is contradictory when he says that payment of interest and penalty is found to be correct as per the provisions of Rule 14 of CCR, Section 78 of the Finance Act, 1994 and Rule 15(3) of the CCR and also observed that it needs no interference. But thereafter, he also imposed equal penalty under Section 78 which according to my considered opinion is not sustainable.
Further the appellant is entitled to avail the benefit of less penalty provided under Second proviso to Section 78(1) of the Act which he has rightly availed. The order of the Commissioner(Appeals) is contradictory when he says that payment of interest and penalty is found to be correct as per the provisions of Rule 14 of CCR, Section 78 of the Finance Act, 1994 and Rule 15(3) of the CCR and also observed that it needs no interference. But thereafter, he also imposed equal penalty under Section 78 which according to my considered opinion is not sustainable.
Appeal allowed - decided in favor of appellant.
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2019 (9) TMI 72 - CESTAT NEW DELHI
Condonation of delay of 1146 days in filing the Appeal - case of appellant is that the Consultant of the Appellant had sent the Appeal by speed post to the Tribunal on 16 April, 2015 and so, the Appellant was under a bonafide belief that the same had been received by the Tribunal - HELD THAT:- The Appeal has been filed to assail the order dated 15 January, 2015 passed by the Commissioner (Appeals). The forwarding communication of the Department which was enclosed with order of the Commissioner (Appeals) clearly mentions that an appeal can be filed before the Customs, Excise and Service Tax Appellate Tribunal under Section 86 of the Finance Act 1944. The address of the Tribunal was also mentioned - when the letter accompanying the order of the Commissioner (Appeals) clearly mentions that an Appeal could be filed before the Customs, Excise and Service Tax Appellate Tribunal at West Block- II, R.K.Puram, New Delhi, the Consultant was not justified in sending the Appeal by speed post to an Assistant Commissioner and that too at an incorrect address. The Consultant cannot be said to be unaware of the procedure.
It is also clear that neither the Consultant nor the Appellant made any effort to enquire from the Tribunal whether the appeal that is alleged to have been sent by speed post had actually been received in the Tribunal - No attempt was also made by the Appellant or its Counsel to visit the website of the Tribunal to find out the status of the appeal or seek any enquiry from the Tribunal regarding the filing of the appeal. This amply demonstrates the casual manner in which the Appellant proceeded in the matter - What is also important to notice is that the Appellant has not even disclosed as to on what date the letter sent by the Department was received by the Appellant. There is a deliberate attempt on the part of the Appellant to withhold vital information from the Tribunal.
Thus, the facts stated in the application do not convince us that the Appellant was prevented by sufficient cause from filing the Appeal within the stipulated time - application for COD dismissed.
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2019 (9) TMI 23 - SC ORDER
Extended period of limitation - penalty u/s 78 of FA - It was held that No fault can be found in the present facts with the impugned order of the Tribunal restricting the demand only to that extent of normal period of limitation and deletion of equivalent penalty under Section 78 of the Act.
HELD THAT:- Issue notice.
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