|
Advanced Search Options
Service Tax - Case Laws
Showing 81 to 100 of 117 Records
-
2019 (9) TMI 581 - CESTAT AHMEDABAD
Renting of immovable property service - Demand of Service Tax - CBEC vide DoF No. 334/01/2007-TRU dated 28.02.2007 - HELD THAT:- There is substantial merit in the argument of the appellant that the entire scheme was devised and executed much before the levy of service tax was introduced under the head of renting of immovable property service and therefore, the allegation that the appellant disguised the receipt of rent as non-refundable contribution is totally misplaced. A perusal of the SCN shows that there is no evidence whatsoever to support the allegation that what was collected was in fact rent and not non-refundable contribution. It is also seen that the entire scheme was devised under the supervision of Ministry of Textiles and it’s representatives. In these circumstances the allegation appears to totally baseless - demand is set aside.
Time Limitation - HELD THAT:- It is seen that when the scheme was devised, there was no levy of service tax on renting of immovable property and thus they could not have any intention to evade or to manipulate records to receive rent as non refundable contribution. Thus, the demand on such count is also not sustainable on the ground of limitation as well.
Reversal of CENVAT Credit - input services - construction of compound wall and laying of new pipelines - HELD THAT:- The services in respect of laying of pipelines were availed during the year 2011-2012 the Commissioner observes that the service of construction of new compound wall and laying of pipeline of taxable park received by the appellant were not used by the appellant for providing output service nor were used in relation to setting up, modernization, renovation or repairs or premises of provider of output service - During the period 2006-2011, the unit was being set up and laying of pipeline and building wall is certainly part of renovation of premises and thus covered under the definition of input services - demand set aside.
Business Auxiliary Services - amounts recovered under the head of finger analysis fee demanded under the head of technical testing and analysis service and tender and plant evaluation fee - Demand of service tax - HELD THAT:- It is seen that the appellant had filed a VCES declaration in respect of service tax on technical testing and analysis services in respect of amount received under the head of finger analysis fee, however, the said VCES declaration was rejected - The appellants are not statutory body and no evidence in support of the claim that the activity undertaken by them is statutory in nature has been submitted - demand and penalty upheld.
Demand of Service Tax - certain amounts under the head of tender and plant evaluation fee which relates to the amount charged from the members for verification of factory building, plant, FSI, parking, etc. - HELD THAT:- The appellant has claimed that these are statutory requirements, there is no merit in the said arguments and as the appellant are not statutory body and no evidence in respect of statutory in nature of the activity is submitted - demand alongwith penalty upheld.
Appeal allowed in part.
-
2019 (9) TMI 580 - CESTAT BANGALORE
Classification of services - Cargo Handling Service or port service - appellant has been providing the service of stevedoring service at Karwar Port and discharging the goods from the vessel to the wharf - HELD THAT:- The services rendered by the appellant does not fall in the category of Cargo Handling Service prior to 1.7.2003. Further, during the impugned period, the services rendered by the appellant fall in the category of Port Service and not Cargo Handling Service as held by the apex court in the case of DCCE vs. Sushil & Co. [2016 (4) TMI 987 - SUPREME COURT] and also clarified by the Board Circular dated 1.8.2002 - demand of service tax on Cargo Handling Service for the period 16.8.2002 to 30.6.2003 is not sustainable in law.
Time Limitation - HELD THAT:- The entire demand is also barred by limitation because the show-cause notice was issued on 18.7.2009 proposing to demand service tax for the period from 16.8.2002 to 30.6.2003 and in the show-cause notice, there is no allegation of fraud, collusion, willful misstatement or suppression of fact with intent to evade payment of tax.
Appeal allowed on merits as well as on limitation.
-
2019 (9) TMI 531 - CESTAT BANGALORE
Valuation - inclusion of reimbursable expenses in assessable value - C&F Agent service - HELD THAT:- The Commissioner (Appeals) though has set aside the demand on TDS and on reimbursement of certain expenditure but he has not given any specific finding on each of the reimbursable expenses viz. Godown rent, damage allowance, loading charges and demurrage charges - Further, all these expenses were reimbursed by the appellant for the various purposes incurred for carrying on the business of C&F Agent Service.
The impugned order to the extent of Service Tax on reimbursement is liable to be set aside - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 530 - CESTAT AHMEDABAD
Classification of services - Supply of Tangible Goods service or otherwise - appellant had received income under the head “Gas Connection Charges” from Industrial, Commercial and Domestic customers and perusal of the sale agreements and invoices, revealed that such charges were collected for supply of pipes and measuring equipments at the time of providing new gas connections to the customers - recovery alongwith Interest and penalty - benefit of cum-tax value.
HELD THAT:- The service should be provided by any person to any other person for use of that person. In the present case, the appellant is distributing gas to its customers through pipes and for this purpose, it has installed an equipment called SKID at the customers’ site. It is true that the equipment is installed at the site of customer and at the cost the customer without transferring the ownership or possession and that the appellant retains the right to use the equipments, but the issue that arises for consideration is whether the supply of tangible goods, namely the equipment is for the use of the customer.
The terms of the agreement leave no manner of doubt that the purpose of the equipment is to measure the amount of gas supplied to the customer for the purpose of billing. They are, therefore, for the use of the appellant and are not for use by the customers. The finding to the contrary recorded by the Adjudicating Authority is, therefore, not correct.
The Adjudicating Authority was, therefore, not justified in confirming the demand of duty on the collection charges under the taxable service- ‘Supply of Tangible Goods’- In this view of the matter, it may not be necessary to examine as to whether the appellant refunds the collection charges to the customers on termination of the gas connection.
Demand set aside - decided in favor of assessee.
-
2019 (9) TMI 469 - CESTAT CHENNAI
Recall of an order - rectification of mistake - non-speaking order - case of appellant is that the conclusion of this Bench that the appellant had rendered other than legal services is an apparent mistake - HELD THAT:- There is no mention nor discussion as to the applicability or otherwise of various decisions relied on by the appellant in the impugned final order - There is no dispute that non-consideration of a judgment of the jurisdictional High Court or Supreme Court is itself a mistake/error on the face of the very order which could be rectified.
Apparently, there is no discussion also on various documents like invoices etc., relied on by the applicant and furnished in the paper compilation, suffice it to say that non-consideration of the same amounts to passing a non-speaking order.
The impugned final order is recalled and the Registry is directed to relist the appeal for fresh hearing in due course - application allowed.
-
2019 (9) TMI 464 - CESTAT CHANDIGARH
Validity of show cause notice - Audit objections were already settled - Erection Commissioning and Installation Service - availment of abatement on job-work - benefit of N/N. 19/2003 dated 21.08.2003 as amended and N/N. 1/2006-ST dated 01.03.2006 - the objection was raised on the ground that the appellant has not sold any goods and material while providing services to the appellant, but, have received only the amount on job work done by them vide audit objection dated 17.01.2007.
HELD THAT:- As the audit objection raised by the revenue has already been settled by them on 18.05.2007, in that circumstances, on the same audit objection, show cause notice cannot be issued to the appellant on 28.07.2009. Therefore, the whole of the demand on the basis of said objection is not sustainable and is also time barred.
Benefit of N/N. 19/2003 dated 21.08.2003 as amended and N/N. 1/2006-ST dated 01.03.2006 - HELD THAT:- As per the agreement between the appellant M/s Steel Strips Wheels Ltd. dated 02.08.2001 on basis of which audit objection was raised have been examined and as per the said agreement the appellant was required to provide material while providing services, in that circumstances, the appellant has rightly availed the benefit of N/N. 19/2003 dated 21.08.2003 as amended and N/N. 1/2006-ST dated 01.03.2006. In that circumstances, the demand of service tax is not sustainable against the appellant.
Demand alongwith penalty set aside - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 463 - CESTAT CHANDIGARH
Commercial or Industrial Short payment of service tax - Construction Services - Work Contract Services - demand of differential service tax - case of appellant is that they have provided service alongwith material and have paid VAT thereon - HELD THAT:- As it is a fact on record that the appellant is paying VAT on the works contract amount, in that circumstances, the appellant has rightly paid service tax @2% of the value of works contract.
Thus, the appellant is not required to pay further service tax on their activity and whatever service tax has been paid by the appellant is the correct payment of service tax payable by the appellant.
Demand do not sustain - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 462 - CESTAT CHANDIGARH
Classification of services - health services or support services of business or commerce? - revenue sharing basis - agreement with various doctors/consultants on revenue sharing basis whereby a part of the doctor‟s/consultants fee is retained by them in lieu of providing administrative support to them - HELD THAT:- The issue has been settled by this Tribunal in the case of M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI] where it was held that the service provided by the respondent hospital would merit classification under Health Care Services extended to the patients.
The appellant had not provided any business support service to the consultants/doctors or patient, therefore, no service tax is payable by appellant under the category of ‘Business Support Service’ - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 413 - CESTAT CHENNAI
Levy of penalty u/s 76 and 77 of FA - taxability of Renting of Immovable Property Services - non payment of tax under Bonafide belief - no suppression of facts - HELD THAT:- The undisputed facts are that the appellant is a local authority and hence, there can be no issue as to suppression of any facts and that too, with an intent to evade any tax. Further, though the activity of renting of building is not a statutory function, the building has been rented to earn revenue to perform the statutory functions entrusted on the appellant under Article 243W of the Constitution of India.
Further, the bona fide belief of the appellant can be vouched from the Circular No. 13052/2016/D2 dated 03.05.2017 issued by the Commissioner of Municipal Administration to all the Municipal Commissioners clarifying the exemption available under Sl. No. 39 of Mega Exemption Notification No. 25/2012-ST dated 20.06.2012.
Also, the taxability of Renting of Immovable Property Services has not attained finality and is still pending before the Larger Bench of the Hon’ble Apex Court, in the matters of UNION OF INDIA AND ORS. VERSUS UTV NEWS LTD. [2018 (5) TMI 1367 - SUPREME COURT] and MINERAL AREA DEVELOPMENT AUTHORITY ETC. VERSUS M/S STEEL AUTHORITY OF INDIA & ORS [2011 (3) TMI 1554 - SUPREME COURT] and therefore, it can be safely assumed that the doubts in the mind of the appellant as to taxability or otherwise of the renting activity was in good faith, which is also due to the fact that there are contrary decisions available and that finally, it has reached the Hon’ble Supreme Court.
Thus, the main issue of taxability on the Renting of Immovable Property itself being under litigation, the ingredients of Section 76 of the Finance Act, 1994 can be assumed to be absent, for levying penalty - penalty u/s 76 set aside - However, the penalty under Section 77 ibid is imposed because of delay/failure in filing the ST-3 return, which is an admitted fact.
Appeal allowed in part.
-
2019 (9) TMI 395 - CESTAT ALLAHABAD
Taxability - Health Services - appellants M/s Vivek Sewa Samiti received amount of approximately ₹ 1.5 crores & M/s Gayatri Hospital received amount of approximately ₹ 82 lakhs from M/s ICICI Lombard General Insurance Company for providing health services to members of society who were below the poverty line under ‘Rastriya Swastha Bima Yojana’ - period from 01.07.2010 to 30.04.2011 - HELD THAT:- The requirement in the definition of said service is that the treatment is provided by service provider and payment is made by insurance company directly to the service provider then it satisfies the definition of health services provided under Section 65(105) (zzzzo) of Finance Act, 1994.
The appellants during the relevant period had provided said services - demand of service tax upheld - appeal dismissed - decided against appellant.
-
2019 (9) TMI 330 - PUNJAB AND HARYANA HIGH COURT
Permission for withdrawal of appeal - monetary amount involved in the appeal - activity of providing erection, commissioning and installation services/work contract services - HELD THAT:- At the time of hearing, learned counsel for the appellant admits that in view of instructions dated 22.8.2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i.e. 11, 20, 077/- for the period from 2009-10 to 2012-13 and ₹ 59, 80, 109 alongwith applicable interest and penalty for the period 2013-14 is to be recovered, which is below the monetary limit of ₹ 1 Crore.
Appeal dismissed as withdrawn.
-
2019 (9) TMI 329 - PUNJAB AND HARYANA HIGH COURT
Permission for withdrawal of appeal - Monetary amount involved in the appeal - Excess utilization of CENVAT Credit - It is alleged that respondent was entitled to utilize cenvat credit upto 20% of the service tax payable, whereas it was utilizing cenvat credit upto 100% of service tax payable - HELD THAT:- At the time of hearing, learned counsel for the appellant admits that in view of instructions dated 22. 8. 2019 issued by Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs (Judicial Cell) the instant appeal would not be maintainable before this Court, as demand amount i. e. 94, 57, 161/- is to be recovered, which is below the monetary limit of ₹ 1 Crore.
Appeal dismissed as withdrawn.
-
2019 (9) TMI 328 - MADRAS HIGH COURT
CENVAT Credit - input services - transportation of excisable goods from its Chennai Unit I to Jamshedpur Unit 2 of the Assessee itself - place of removal - applicability of the case of Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] in the facts of present case.
HELD THAT:- A closer and finer reading of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT] would clearly reveal that the Hon'ble Supreme Court was concerned only with the controversy of Cenvat Credit on goods transported from the place of removal to the buyers' premises and not the transport of goods from one Unit of the Assessee to another Unit of the same Assessee. In the context of the factual background, the judgment of the Hon'ble Supreme Court, in view of the amended definition of the place of removal wherein the word 'upto' has been substituted for the word 'from' in clause 3 of Rule 2(l) which defines Input Services, cannot be applied to the facts of the present case.
The Hon'ble Supreme Court held that the Cenvat on goods transport agency availed for transport of goods from the place of removal of Assessee to the buyer's premises was not admissible to the respondent and that by necessary implication would mean that Input Services for transport of goods upto the final place of removal of goods by way of sale to the buyers would be so included.
The stark distinction of facts of the case before the Tribunal and the facts before the Hon'ble Supreme Court in Ultra Tech case should have been noticed by the final fact finding authority viz., the Tribunal before applying the judgment of the Apex Court to the facts of the case before it rather mechanically. It is the duty of the final fact finding body to analyse the facts of the case on hand appropriately and only after comparing the facts of the case before the higher Constitutional Courts, it should proceed to apply the ratios of the Judgments from the Constitutional Courts to the case before it - The misapplication of the Judgments without comparing the facts, can result in serious miscarriage of justice and can expose the non-application of mind by the responsible appellate forums like the CESTAT in the present case.
CENVAT Credit allowed - appeal allowed - decided in favor of appellant.
-
2019 (9) TMI 285 - PUNJAB AND HARYANA HIGH COURT
Permission for withdrawal of appeal - monetary amount involved in the appeal - Refund of unutilized CENVAT Credit - export of services - HELD THAT:- At the time of hearing learned counsel for the appellant by citing letter dated 5.9.2018 written by Assistant Commissioner (Legal) CGST Gurugram, seeks permission to writhdraw the present appeal, as the revenue involved in the present appeal is 22.22 lakhs which is below the thresh hold limit prescribed by the Central Board of Indirect Tax and Customs as contained in instructions dated 11.7.2018.
Appeal dismissed as withdrawn.
-
2019 (9) TMI 284 - MADRAS HIGH COURT
Recovery of amount due to Central Government - threat of coercive action - the second respondent has called upon the petitioner to remit the admitted service tax along with appropriate interest, penalty and late fee under the threat of coercive action. Since there was no compliance with the notice measures were initiated in terms of the Revenue Recovery Act. - applicability of Certificate No.1 of 2013 issued under Section 11 of the Central Excise Act, 1944 - HELD THAT:- The provisions of the Finance Act, 1994 are adequate to support the action taken in the present case for recovery. No doubt, the Certificate referred to in the impugned communication states at the top 'Section 11 Certificate No.1/2012' - However, mere reference to Section 11 (without even reference to the statute) would not vitiate the Certificate itself. Clearly, the provisions of Section 87 (D) provide for the drawing-up of a certificate for tax arrears and that is what has been done in the present case.
The objections raised by the petitioner are seem to hyper-technical and rejected as such - Petition dismissed.
-
2019 (9) TMI 283 - CESTAT BANGALORE
Validity of remand order - Refund claim of excess amount - cum-tax benefit - case of appellant is that this is a case of gross negligence on the part of the Departmental Officer who in spite of so many representations made by him did not fix the personal hearing and did not determine the amount of refund which is due to the appellant from the Department.
HELD THAT:- The Commissioner (Appeals) vide his order dated 03.08.2012 has given cum-tax benefit to the appellant and the said benefit was to be determined after proper verification by the jurisdictional officer. Further, the Commissioner (Appeals) has also dropped the penalty by resorting to Section 80 of the Finance Act, 1994. After the decision of the Commissioner (Appeals), the appellant has been writing various letters to various Departmental Officer for proper verification as per the directions of the Commissioner (Appeals) but none of the officers bothered to comply with the order of the Commissioner (Appeals) and they have been delaying the matter without any proper reasons.
The appellant has placed all the letters on record which clearly shows that he has been pressing and requesting the Departmental Officer to comply with the order of the Commissioner (Appeals) but no Departmental Officer did the proper verification and thereafter the appellant himself filed the refund application on the basis of their calculation. Further, when the refund application was filed, the Departmental Officer without issuing the show-cause notice straightaway rejected the same on time-bar which is not tenable in law.
Since the refund application has been rejected without issuing show-cause notice which is not sustainable in law and therefore I set aside the impugned order by allowing the appeal of the appellant with consequential relief, if any.
-
2019 (9) TMI 245 - BOMBAY HIGH COURT
CENVAT Credit - input services - insurance premium to ensure the deposits of its constituents with it to the different Insurance and Guarantee Corporation - HELD THAT:- Mr. Jetly, learned Counsel appearing for the Revenue submits that the impugned order dated 12th February, 2019 of the Tribunal has been challenged by the Revenue to the extent it has not imposed any penalty upon the appellant. Mr. Jelty, states that the appeal has been filed and the objections of the Registry are to be removed. Mr. Jetly, further undertakes to remove the objections within one week, so the Revenue’s appeal as well as the appellants appeal could be heard together - This appeal along with the Revenue’s appeal, particulars of which would be given by Mr. Jetly to the Court Associate, be listed on 13th September, 2019.
Stand over to 13th September, 2019.
-
2019 (9) TMI 244 - KERALA HIGH COURT
Maintainability of appeal - appeal was filed belatedly without any condonation application - HELD THAT:- Once appeal was registered, without noting any delay and without notice to the appellant, the Appellate Authority could not have held that the appeal was not maintainable as it was barred by limitation.
It is to be noted that the appeal was not found defective as it was unaccompanied by any delay petition and the appeal was registered. If there was any delay involved, the Office ought to have brought it to the notice of the petitioner with regard to the delay involved, so as to give an opportunity to the petitioner to explain the delay - Once appeal was registered, without noting any delay and without notice to the appellant, the Appellate Authority could not have held that the appeal was not maintainable as it was barred by limitation.
The delay involved even according to calculation of the Appellate Authority is around five days. The date on which the appeal is received in the Office will have to be calculated for reckoning the limitation. Since the appeal was received in the Office on 31.8.2018, that date has to be taken for reckoning the limitation. The date of registration of the appeal is purely an administrative matter within the office. That cannot be reckoned for the purpose of limitation.
There is no delay in filing appeal - appeal restored.
-
2019 (9) TMI 243 - CESTAT MUMBAI
Reduction in the quantum of penalty u/s 78 - Failure to deposit the tax amount with Government - services of transportation of passengers by air - April 2009 to March 2014 - HELD THAT:- The Learned Commissioner (Appeals) has extended the statutory benefit of discharging 25% of the penalty imposed under Section 78 of Finance Act, 1994 subject to fulfillment of the condition laid down under the said provision.
Appeal dismissed - decided against Revenue.
-
2019 (9) TMI 242 - CESTAT AHMEDABAD
CENVAT Credit - processing of certain goods by job work items at hands of job workers providing services to the appellant - HELD THAT:- There is no dispute that the said material is used in provision of the services on which the appellants are paying Service Tax - The SCN seeks to deny the credit on the ground that the activity undertaken by the appellant is not manufacturing but repair of goods and thus, no credit on input can be allowed. It ignores the fact that the appellants are also a service provider and said goods are used in provision of said services in which the appellants are discharging the Service Tax liability. In these circumstances, there is no merit in denial of CENVAT credit to the appellants - credit allowed.
Demand of Duty - irregular availment of CENVAT Credit - HELD THAT:- Irrespective of the facts whether the credit is allowed of denied, the second demand amounts to double jeopardy, hence, is not sustainable and is therefore, set aside.
Appeal allowed - decided in favour of appellant.
|
