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Service Tax - Case Laws
Showing 41 to 54 of 54 Records
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2020 (10) TMI 378
Reverse charge mechanism - information technology software service - Recovery of Service Tax - period of dispute from 26th July 2006 to 31st August 2009 - It is contended by Learned Chartered Accountant that self-assessment to tax, on incorporation of ‘information technology software service’ in section 65(105)(zzzza) of Finance Act, 1994, is ample evidence of their diligence in discharge of tax liability to exclude the possibility of having contemplated evasion of tax - HELD THAT:- In terms of the activity that is sought to be taxed by these two entries, the connection with electronic data processing is unmistakable. Considering the mechanism incorporated in the two definitions to render the activity functional, the minor differences between them should have led to a similar speculative reasoning on the part of the assessee and the deliberate discard of applicability after initial discharge of tax liability should have been justified in the proceedings instead of relying upon decisions of the Tribunal rendered subsequent to the period of dispute. The discharge of tax liability after incorporation of the new levy occurred during the investigations and, therefore, does not obtain for themselves the halo of diligence.
It is seen that appellant has been discharging tax liability since 16th May 2006 and, with payment of taxes amounting to ₹ 16,85,335 at some stage before ceasing to do so in July 2007, the unpaid dues is limited to ₹28,56,559 - while upholding the impugned order as being consistent with the law, the penalty under section 78 of Finance Act, 1994 is capped at this amount.
Appeal dismissed.
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2020 (10) TMI 319
CENVAT Credit - input services - outward transportation services from factory to customer’s premises - period in dispute i.e from January 2005 to December 2007 - HELD THAT:- In identical matter in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. VESUVIOUS INDIA LTD. [2013 (12) TMI 1025 - CALCUTTA HIGH COURT], the issue was decided against the assessee. The said decision was further carried in appeal before the Hon’ble Supreme Court which has settled the issue in favour of the assessee. In the said decision dated 17.01.2018, while deciding the batch of appeals filed by Department as well as assessees, COMMISSIONER OF CENTRAL EXCISE, BELGAUM VERSUS M/S. VASAVADATTA CEMENTS LTD. [2018 (3) TMI 993 - SUPREME COURT], the Apex Court has inter-alia held that the assessee is legally eligible to avail credit on outward transportation availed from place of removal upto a certain point, whether it is a depot or customer’s premises.
In the instant case, the availment of credit on outward transportation from factory gate to customer’s place pertains to period prior to April 2008 i.e. prior to period when the definition of input service was amended. Since the credit eligibility finally stands decided by the Apex Court in favour of assessee, the impugned adjudication order is liable to be set aside.
Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 292
Classification of service - Appellant has appointed M/s. Hewitt Associates for collating and uploading the details/ information, like name, educational qualification, designation, contact number etc, of the employees in the database - Appellant also claims that they are further using the global telecommunication channel set-up by its overseas group entities for making long distance international calls - whether service fall under Business Support Service, Online Information & Database Service (referred as Computer Network Service) and Manpower Recruitment & Supply Agency Services? - time limitation - penalty.
Whether the services received by the Appellant from M/s. Hewitt Associates and M/s. Communication Services can be qualified as “Business Support Services”? - HELD THAT:- In view of the insertion w.e.f. 01.05.2011, of words “operational or administrative assistance in any manner”, it goes without saying that the operation is prospective only. It is not disputed that the services are in the nature of helping the routine administration as averred in the SCN - the services availed by the appellants from M/s Hewitt Associates and M/s Communication Services cannot be categorised under “Business Support Service” before 01.05.2011.
Whether the networking (telecommunication related) services received by the Appellant from overseas group entities can be classified as Online Information & Database Service (referred as “Computer Network Service”)? - HELD THAT:- The global entity has created a network of computers and provided connectivity between different group entities so that information and data can be exchanged. We find that the learned AR argues that provision of information is also categorised under OIADR. In such a scenario, information flows both ways from the appellants to other global entities and vice-versa. In such a case, the appellants at times become service providers and at times service receivers. It is not coming forth either in the SCN or in the OIO that the amount paid by the appellants to the overseas entity is for the information they received, even if assuming that data retrieval is not mandatory. In view of the submission of the appellants and on perusal of the invoices for the so-called network services, we find that the same are not for provision of online information. Therefore, we are not inclined to accept the contention of the learned AR - the appellants are not exigible to Service Tax on OIADR (Computer Network Service).
Whether the Appellant can be said to have received manpower recruitment and supply agency service from overseas group entities? - HELD THAT:- In terms of the employment contract, the appellant is under obligation to pay salary (including other entitlements) to the Seconded Personnel during the period of secondment in foreign exchange in his home country; for administrative convenience, the Appellant remits the salary payable to the Seconded Personnel in his home country in Foreign Exchange through the Seconder Company; the Seconded Personnel, as required under the Income Tax Act, 1961.
Extended period of limitation - penalties - revenue neutrality - HELD THAT:- The appellants submit that the issue is revenue neutral as being an STPI unit, the appellants would have been eligible to claim refund of Service Tax paid on input services in terms of Rule 5 of CCR, 2004. The contention has force - As the issue decided on merits, we are not going into further arguments on this point - Having decided the issue in favour of the appellants on merits, we don’t find any reason to discuss the merits or otherwise of imposition of penalties.
Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 291
Non-levy of penalty - Levy of service tax on ‘renting of immovable property’ service - retrospective amendment - non-payment of service tax - non-filing of half yearly returns - demand alongwith the penalties - extended period of limitation - HELD THAT:- The ld. Commissioner has given cogent reasons and has recorded the findings that there is no deliberate default on the part of the assessee, in not depositing the service tax. In this view of the matter, we uphold the non-levy of penalty under Section 78 and also dropping of the demand of service tax amounting to ₹ 58,85,465/- , in view of the stay granted by the Hon’ble Supreme Court, being Interim Order dated 14.10.2011 in Civil Appeal No.8390 of 2011 and other appeals, in the case of Retailers Association of India Vs. Union of India & Another [2011 (10) TMI 12 - SUPREME COURT].
Penalties - HELD THAT:- In view of the provisions of Section 76, which provides for levy of penalty, where a person is liable to pay service tax, fails to pay such tax and further, Section 80 provides that where such failure is for reasonable cause, no penalty shall be imposed under Section 76, 77 and 78 of the Finance Act - there being reasonable cause for late payment of service tax, we set aside the penalty under Section 76 also.
Appeal dismissed - decided against Revenue.
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2020 (10) TMI 286
Export of services or not - intermediary, commission and marketing service fee received - period from 1st July 2012 to 31st March 2016 - time limitation - HELD THAT:- The activity of an ‘intermediary’ is not envisaged as any less of ‘service’ than contemplated by section 65B(44) of Finance Act, 1994 and this is evident from its definition in rule 2(f) of Place of Provision of Service Rules, 2012. While ‘main service’ on own account, implying adequate autonomy to negotiate ‘consideration’ to be passed on in the value chain to the next ‘provider’ and onwards until the sum of consideration is recovered in entirety from the ultimate consumer, is also no more and no less than ‘service’, the antithesis thereof, characterized by divesting of such autonomy and to be inferred from the nature of the ‘consideration’, will relegate the corresponding activity to that of ‘intermediary’ which is subordinate to a ‘main service’ on own account within which it is rendered. By designating of the activity of ‘intermediary’ as ‘service’ but not on its own account to be distinguished by provision of ‘main service’ on own account, it would appear that while being ‘provider’ – one of the two essential determinants of ‘service’ – the ‘consideration’ received, as it must for coverage under Finance Act, 1994, by the ‘intermediary’ is lesser than, or subordinate to, the consideration that corresponds to performance of the ‘main service’ on own account. Here, irrespective of the delivery of the ‘main service’ in the ‘taxable territory’ or otherwise, the ‘consideration’ received by the ‘provider’ in India is deemed to have been for service rendered in India. From this would emerge a pattern in which ‘services’ coalesce within a ‘main service’ detracting from independent existence of each of them except for the description corresponding to ‘consideration’ of the coalesced ‘main service’ rendered on own account which is characterized by the recipient of service acknowledging only one provider for contractual consideration but yet carrying on business with other entities with whom the recipient of consideration has entered into separate contracts.
There is no broader span of activity than the ticketing/booking for access to service that is offered by the airline operator/hospitality provider to the traveler. It is common ground that the assessee was contracted by the overseas entity to promote and market the Abacus ‘computer reservation system’ (CRS) software among travel agents for enabling access to the offerings of airline operators and hospitality providers who had separately contracted with the overseas entity for access to the system at the other end. The assessee undertook the responsibility of identifying travel agents who were designated as subscribers of Abacus ‘computer reservation system’ upon successful concluding of agreements with them. Thus are the subscriber and the airline operator/hospitality provider facilitated for providing travel solutions to the public. Upon the successful closure of booking, the overseas entity was recompensed with commission per transaction. Travel agents were, in turn, compensated by the overseas entity on per transaction basis to incentivize usage of the Abacus system. The consideration received by the assessee from the overseas entity for the contracted undertaking is also computed on per transaction basis. It is this networking of activities – the channel that links the airline operator/hospitality provider and the traveler - that pushes forward the business of travel, and hospitality, industry - The airlines/hotels and the travel agents are not bound to each other and nor do either contract for exclusive use of the Abacus system. It is upon the volumes generated by the subscriber on Abacus that the licencee of the software is paid and it is from this payment that the assessee, as well as subscribing travel agent, are compensated by the licencee which flows from the agreement of the licencee with the assessee and of the assessee with the travel agent. In all of these multiple transactions that enable a traveler to fly or occupy accommodation, the fare and tariff is in the public domain and the airline/hotel offers commission on that to the parent company of the appellant; ‘consideration’ for all other transactions pertaining to the ticketing/booking are constrained within this consideration to derogate from autonomy of negotiation and progressive summation of consideration to paid by the ultimate consumer thus derogating from the hallmark of ‘main service’ on own account. Consequently, the activity of the assessee-appellant rendered is ‘intermediary service’ taxable in the hands of the provider. Assessee-appellant is provider of the service and, hence, liability devolves on them in terms of rule 9 of Place of Provision of Service Rules, 2012.
The impugned order has taxed two streams of consideration: ‘commission’ based on passenger bookings and fixed ‘marketing service fee’ and, while the former is consideration for ‘intermediary service’ as set out above, the nature of the latter is not clear. Though the adjudicating authority has not given much thought to its computation, it would appear from the invoices, that these have been billed as a standard amount. Nevertheless, in the narration of facts, the adjudicating authority has recorded that the dues under this head are netted; as netting out involves adjustment of flows in both directions and there is no ostensible reason for the assessee to pay the overseas entity, we are unable to decide the legality of subjecting the ‘marketing service fee’ to tax - Furthermore, in the context of our finding on the taxability of ‘commission fee’, with consequent denial of refund of accumulated credit, the assessee may be entitled to utilise such CENVAT credit in the discharge of tax liability.
While upholding the finding in the adjudication order, arising from the proposal to recover tax, to the extent of the confirmation that ‘commission fee’ is consideration for service rendered in India, we remand all other issues back to the respective original authorities for disposal in accordance with the law as set out by us and the directions recorded. The assessee is at liberty to raise their contentions pertaining to bar of limitation, invoking of section 80 of Finance Act, 1994 and entitlement to CENVAT credit before the adjudicating authorities concerned - Appeal disposed off.
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2020 (10) TMI 201
Classification of services - port services or not - stevedoring services - contention of the petitioner's counsel is that they had not been authorised by the port - HELD THAT:- Whether the petitioner was authorised by the port or not is a pure question of fact. He highlighted the fact that the petitioner did not even reply to the show cause notice issued by the first respondent. Of course they took part in the personal hearing. In the personal hearing also, the petitioner did not take the stand that they were not authorised by the port to render the stevedoring service.
Penalty - HELD THAT:- Since a question of law has been raised and the same is still pending consideration before the Principal Seat, it may not be fair to impose penalty on the petitioner - Penalty imposed on the petitioner is set aside. In all other respects, the order impugned is sustained.
Petition allowed in part.
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2020 (10) TMI 199
Delayed payment of service tax - case of Revenue is that the Appellant herein was debiting its Books of Account every six months, the Appellant had deliberately delayed the payment of service tax and therefore, was liable to pay interest on such delayed payment under Section 75 of the Finance Act, 1994 - HELD THAT:- The Appellant discharges its service tax liability by debiting its Cenvat credit account. The Appellant debits its Cenvat register every month, however, in its Books of Accounts, the Appellant passes the relevant journal entry only every six months. Further, I find that the Appellant maintained sufficient credit balance in their Cenvat credit account at all times. Therefore, the Appellant had no intention to evade the payment of service tax.
Since, the Appellant duly debited its Cenvat register as per Rule 6 of the Service Tax Rules, 1994, the corresponding entry being made by the Appellant in its Books of Accounts cumulatively for six months, can at best qualify as a procedural irregularity and can in no way constitute a statutory violation, as alleged by the Department - the Appellant had filed the statutory returns within the stipulated time period and the monthly liability had been properly disclosed in such returns.
The manner in which the Appellant was recording the journal entry in its Books of Accounts alone, in the absence of any statutory violation, is not sufficient to conclude that there was a delay in payment of Service Tax on the part of the Appellant - Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 198
CENVAT Credit - exempt services or not - Storage and Warehousing Service, Cargo Handling Service and Business Auxiliary Service in respect of agricultural produces - common input services used in taxable as well as exempt goods - HELD THAT:- It is a matter of record that the appellant have been providing both taxable and exempted output services in respect of which they have been availing credit of common input services. It is also a matter of record that the appellant have fulfilled the requirement of Rule 6 (3) (ii) of the Cenvat Credit Rules, 2004 readwith Rule 6 (3A) and have been reversing the amount of common Cenvat credits, proportionate to value of exempted output services. In this regard we take note of the fact that appellant have furnished Cenvat credit register for the period April 2009 to June 2012 which indicate that they have regularly been reversing the proportionate amount of the Cenvat credit taken on the common inputs which have gone into exempted output services.
Once the appropriate reversal have been made under Rule 6 (3A) of the Cenvat Credit Rules any procedural violations of minor nature would be of in-consequential nature and will not dis-entitle the assessee from availing the Cenvat credit of the common inputs for which they have already been making a regular reversal of proportionate credits - the Department has nowhere mentioned in entire proceedings that the amount of Cenvat credit reversed is not proportionate to the value of exempted services or not proper otherwise. The only ground that the appellant have not followed the laid down procedure of availing the option of Rule 6 (3A) like not declaring value of turnover of exempted services in their periodic service tax return etc. can be minor procedural lapses, but same cannot become ground for denying a substantial benefit to the appellant.
Once the proportionate reversal of the Cenvat credit has taken place, that tantamount to not availing of the input services credit of the common inputs which are going into the exempted services - Appeal allowed - decided in favor of appellant.
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2020 (10) TMI 113
Validity of N/N. 1/2006-ST dated 01.03.2006 - Works Contract - levy of service tax - HELD THAT:- Since the writ petition itself emanates from a show cause notice and also since the petitioner has touched upon certain factual aspects of the case, it would be appropriate to grant liberty to the petitioner to raise all his objections, including placing reliance on the decision of the Hon'ble Supreme Court in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT].
The petitioner is granted liberty to raise his objections by way of a reply to the show cause notice dated 02.03.2009, atleast within a period of 15 days from the date of receipt of a copy of this order - the matter is remanded back to the appropriate adjudicating authority.
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2020 (10) TMI 59
Violation of Principles of Natural Justice - freezing of Bank Account of petitioner - contention of the Petitioner is that no show-cause notice was issued under Section 73 or 73A of the Finance Act, 1994 to the Petitioner and also noo assessment order has been passed before freezing the bank account of the Petitioner - HELD THAT:- Where any amount payable by a person to the credit of the Central Government under service tax is not paid, the Central Excise Officer may recover the amount by issuing notice in writing requiring any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the credit of the Central Government. An analysis of the above provision would reveal that the crucial expressions to be noticed are “any amount payable”, “is not paid” and “shall proceed to recover”. A notice under Section 87(b)(i) is in the form of a garnishee notice. It is in that context that the above three expressions would have to be understood and applied - thus, before proceeding to recover the amount by issuing garnishee notice under Section 87(b)(i), the amount has to be first determined and quantified and thereafter not paid by the person required to make the payment as per law. Thus the garnishee notice has to be preceded by determination of the amount due and not paid. The amount payable has to first crystallize.
In the present case, Respondents are relying on two statements made by officials of the Petitioner; one on 19.12.2019 and the other on 13.02.2020. Mere making of such statements by themselves cannot lead to any conclusion that certain amount has been determined as due from the Petitioner. Finance Act, 1994 provides for various provisions for making assessment for determining the amount of service tax required to be paid by the service provider, including best judgment assessment under Section 72 which provision can be invoked when there is failure to furnish the return or failure to assess the tax. Without there being an assessment, no conclusion can be reached that any amount has become due to be paid. In the absence of such determination of the tax due, recourse to Section 87 of the Finance Act, 1994 would certainly be premature and cannot be justified.
The Respondents are directed to forthwith withdraw the restraint on the Petitioner’s bank account so that Petitioner’s account with the State Bank of India, Madam Cama Road, State Bank Bhavan, Mumbai can be made functional for the Petitioner - petition allowed - decided in favor of petitioner.
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2020 (10) TMI 58
SVLDR scheme - recovery of short paid duty in terms of interest contemplated under Section 87 of Finance Act, 1994 - HELD THAT:- This Court, without going into the other aspects relating to the 2019 Scheme, would confine this lis to the validity of the recovery notice issued by respondent No.4 as per Annexure-M. When this matter was heard at length, this Court had directed Sri K.V. Aravind, learned counsel appearing for the respondent Nos.1 to 5 to secure instructions in regard to break-up payments made by the petitioner.
The petitioner has made payments in the months of April, May, June, till December, 2017 and on all these dates several payments are made towards the declared amount. If these payments are taken note of, then the computation of interest determined by the respondent No.4 runs contrary to Section 110 of Service Tax Voluntary Compliance Encouragement Scheme, 2013. On perusal of these payments made by the petitioner, prima facie, this Court finds that the interest is computed on the declared amount. In fact this Court is of the view that the interest should have been computed on unpaid dues and not on declared amount. Since the impugned notice clearly gives an indication that interest is levied without taking note of partial payments, I am of the view that the order under challenge is not sustainable and the same needs to be quashed with a direction to the respondent No.4 to re-compute the interest by taking note of the payments made on various dates towards the declared amount.
Keeping open the contentions raised by the petitioner, writ petition is disposed of directing the respondent No.4 to re-compute the interest by taking note of the payments made on various dates by the petitioner towards the declared amount. The impugned recovery notice issued vide Annexure-M is quashed. The respondent - Bank is directed to permit the petitioner to operate the Bank Account over and above ₹ 5 lakhs - Petition disposed off.
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2020 (10) TMI 57
CENVAT Credit - input services - Health Insurance service - Cargo Handling service - Photography Services - period 2009-10 to 2011-12 (up to February, 2012) - denial on the ground of nexus - rejection of refund claim - provisions of Rule 14 ibid at the stage of availment of alleged Cenvat credit not invoked - incorrect application of formula as prescribed under Notification No. 5/2006 – C.E. (N.T.) dated 14.03.2006.
CENVAT Credit - denial on account of nexus - HELD THAT:- Insofar as the definition of ‘input service’ is concerned, Rule 2(l) ibid defining the said term undergone an amendment vide Notification No. 3/2011 – C.E. (N.T.), dated 01.03.2011, w.e.f. 01.04.2011. Under the unamended provisions (effective up to 31.03.2011), the phrase ‘activities relating to business’ was specifically finding place in the inclusive part of the definition of ‘input service’. The inclusive definition in a fiscal statute is a well recognized device to enlarge the meaning of the word defined and it expands the meaning of the basic definition - In the present case, since some portion of the disputed Cenvat credit was availed by the appellant after amendment of the definition of ‘input service’ w.e.f. 01.04.2011 for the alleged personal benefit of its employees, as per the statutory provisions, the Cenvat credit shall not be available on the disputed services.
The impugned order has not quantified the service tax amount availed by the appellant before 01.04.2011 and the period thereafter. Thus, the matter is required to be examined at the original stage for ascertaining the quantum of Cenvat credit availed by the appellant for the period after 01.04.2011 and if such availment of credit is in context with the services for personal use or consumption of the employees, then the benefit of Cenvat credit should not be available to the appellant - matter on remand.
Refund of CENVAT credit - non-invocation of provisions of Rule 14 ibid at the stage of availment of alleged Cenvat credit - HELD THAT:- In the present case, it is an undisputed fact on record that the department had not proceeded against the appellant for effecting recovery of the allegedly availed irregular Cenvat credit, by taking recourse to Rule 14 ibid read with Section 73 ibid. On the other hand, the department had raised the issue of non-establishment of nexus between the input services and exported output service for the first time, while adjudicating the subject refund claims filed under Rule 5 ibid by the appellant - In view of the settled position of law, there is no requirement of establishing one to one correlation between the input services and the output service. Based on adoption of prescribed formula, the refund application alone should be processed and settled by the department and the aspect of direct nexus or correlation between the input service and output service should not be looked into for such purpose - there are no merits in the impugned orders, insofar as the refund benefit was denied to the appellant on the ground of non-establishment of direct nexus between the input services and the output service exported by it - Refund allowed - decided in favor of assessee.
Incorrect application of formula as prescribed under Notification No. 5/2006 – C.E. (N.T.) dated 14.03.2006 - HELD THAT:- Since, the specific issue regarding adoption of the formula prescribed under Rule 5 ibid has not been discussed by the authorities below, the matter should be remanded to the original authority for a fresh finding on the issue, whether the requirement of the said rule has actually been complied with by the appellant - matter on remand.
Appeal allowed in part and part matter on remand.
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2020 (10) TMI 3
Violation of the principles of natural justice - Issuance of Form SVLDRS-3 against the Declaration filed in Form SVLDRS-1 under Section 125 of the Finance Act, 2019 - rectification of the error in form SVLDRS-3 issued to the Petitioner - HELD THAT:- As a one time measure for liquidation of past disputes of Central Excise and Service Tax, the SVLDR Scheme has been issued by the Central Government. The SVLDR Scheme has also been issued to ensure disclosure of unpaid taxes by an eligible person. This appears to have been necessitated as the levy of Central Excise and Service Tax has now been subsumed in the new GST Regime. From a reading of the statement of object and reasons, it is quite evident that the scheme conceived as a one time measure, has the twin objectives of liquidation of past disputes pertaining to central excise and service tax on the one hand and disclosure of unpaid taxes on the other hand.
It is not in dispute that the Petitioner is an eligible person. The Petitioner filed a declaration in Form SVLDRS-1 on 27-12-2019 as per Rule 3 of the SVLDRS Rules for relief under Section 124(1)(c)(ii) of the Finance (No.2) Act, 2019. Thereafter SVLDRS-2 was issued by the Designated Committee. As per Rule 6(3) of the SVLDRS Rules, this form is issued along with an estimate of the amount payable by the declarant along with notice of an opportunity for personal hearing. It is also not in dispute that Form SVLDRS-2 states that the estimated tax payable by the petitioner under the Scheme is ₹ 71,11,033.80 - If an opportunity for personal hearing as contemplated in Rule 6(3) of the SVLDRS Rules was given to the Petitioner pursuant to Form SVLDRS-2 with an estimate of an amount of ₹ 71,11,033.80 payable by the declarant, which amount has been accepted by the Petitioner pursuant to Form SVLDRS-2A in accordance with Rule 6(4) of the SVLDRS Rules, then, we do not see any reason as to why when the amount payable is sought to be enhanced from ₹ 71,11,033.80 to ₹ 2,19,82,499/- no such opportunity of hearing was granted to the Petitioner. If at all the Designated Committee wanted to increase the payable amount, the least they should have done was to give an opportunity of hearing to the Petitioner after affording the Petitioner an opportunity to review the report of the jurisdictional divisional commissioner.
Rectification application - Section 128 of the Finance Act - HELD THAT:- It has been stated by the Respondents in their reply that they have considered the same but since there was no change in the amount after certification from the concerned authorities, they have not issued a revised SVLDRS-3. No order has been passed as contemplated under Section 128 of the Finance Act. This is not acceptable.
Also the failure of the Respondents to pass an appropriate order under Section 128 of the Finance Act with respect of the Petitioner’s rectification application and merely to state in the Reply Affidavit that since there was no change in the amount after certification from the concerned authorities, they have not issued revised Form SVLDRS-3 is in gross in breach of Rule 6(6) of the SVLDR Rules.
Form SVLDRS-3 and Form SVLDRS-4 set aside - the Designated Committee under the SVLDR Scheme are directed to give an opportunity of hearing to the Petitioner and after considering all the material furnished - petition allowed.
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2020 (10) TMI 2
Short payment of Service tax - Construction Services in Respect of Commercial of Industrial Building and Civil Structures and Erection Commissioning and Installation - period October, 2004 to March 2007 - HELD THAT:- There is no dispute that the service provided by the appellant is otherwise specified under Works Contract Service. The criteria for qualification of Works Contract Service is that the service should be provided along with material. It is obvious that when the services on construction is provided along with the material the assessee needs to pay VAT or the Works Contract Tax.
From the contract it is seen that the appellant is required to provide the service along with material like Cement, Metal, Steel Reinforcement, Sand, Charcoal, Salt and Earting Material. Moreover, in respect of the Works Contract Service the recipient of the service will deduct the Works Contract Tax which shows that the works contract service is suffered with works contract tax. As per this fact there is absolutely no doubt that the nature of service as well as facts such as service provided along with the material and it suffered works contract tax which clearly qualifies as Works Contract Service.
Benefit of N/N. 01/2006-ST. - HELD THAT:- As per the condition of such notification for allowing the abatement, the material cost needs to be included in the gross value of the service charges. When the revenue itself has allowed the abatement, it has admitted that the material cost is included in the gross value of the Works Contract Service. With this fact also, it is clearly established that the service provided by the appellant is Works Contract Service.
As per the Hon’ble Supreme Court’s judgment in the case of LARSEN & TOURBO LTD. [2015 (8) TMI 749 - SUPREME COURT] the works contract service is not taxable before 01.06.2007 - In the present case, the entire period is prior to the said date therefore, in view of the apex court judgment the service being Works Contract Service is not taxable.
Appeal allowed - decided in favor of appellant.
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