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Service Tax - Case Laws
Showing 1 to 20 of 55 Records
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2020 (11) TMI 1035
Maintainability of SLP - monetary amount involved in the appeal - HELD THAT:- The Special Leave Petition is dismissed on the ground of low tax effect. However, question of law is left open.
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2020 (11) TMI 1006
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking a direction to the respondent no.2 to issue Electronic Discharge Certificate - HELD THAT:- This court passed the order granting direction to issue the certificate - HELD THAT:- This writ petition is dismissed leaving it open to the petitioner to avail such remedy as may be available to him under law against the order dated 17.11.2020.
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2020 (11) TMI 990
Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- The scheme had been accepted and after payment of necessary dues, they were issued with SVLDRS certificates which are on record.
Miscellaneous applications and appeals are disposed off.
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2020 (11) TMI 925
Business Auxiliary Services - promotion or marketing of goods produced or provided by or belonging to the client - transfer of right to use - demand of interest and penalties - extended period of limitation - HELD THAT:- The issue has been dealt by this Tribunal in appellant’s own case for the earlier period, wherein this Tribunal observed that The imposition of restrictions or conditions in respect of the usage and consumption of the concentrate, by the seller cannot alter that position. Hence there are no merit in the submission of the Authorized Representative that this transaction was not a truncation of sale but only “transfer to use”.
As issue has already been settled in favour of the appellant, therefore, no demand of service tax is sustainable against the appellant - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 845
Rejection of Declaration under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - direction to the respondents to consider afresh such application (declaration) as per the scheme - alleged non-payment of service tax dues pertain to the period from April, 2013 to June, 2017 - HELD THAT:- From a conjoint reading of sub sections (1), (2) and (3) of section 127, the picture that emerges is that if the amount estimated by the Designated Committee is equal to the amount declared by the declarant, then the Designated Committee shall issue a statement in electronic form indicating the amount payable by the declarant. However, if the amount estimated by the Designated Committee is higher than the amount declared by the declarant, the Designated Committee shall give an opportunity of hearing to the declarant - Once the determined amount is paid, discharge certificate is issued by the Designated Committee under sub section (8) of section 127.
The proprietor of the petitioner in his statement recorded on 11.01.2018 by the investigating authority admitted the service tax liability of ₹ 60 lakhs (approximately) to be outstanding for the period from 2015-2016 to June, 2017. This was corroborated by the departmental authority in the letter dated 24.01.2018 which we have already noted and discussed. Therefore, present is a case where there is acknowledgment by the petitioner of the duty liability as well as by the department in its communication to the petitioner. Thus, it can be said that in the case of the petitioner the amount of duty involved had been quantified on or before 30.06.2019. In such circumstances, rejection of the application (declaration) of the petitioner on the ground of being ineligible with the remark that investigation was still going on and the duty amount was pending for quantification would not be justified.
In a case where the amount estimated by the Designated Committee exceeds the amount declared by the declarant, then a hearing is given by the Designated Committee to the declarant before determining the amount to be paid by the declarant. In a situation where Designated Committee grants hearing to a declarant when the amount estimated by it exceeds the amount declared by the declarant, then it would be wholly inconceivable that before an application (declaration) is rejected on the ground of ineligibility, no hearing is granted to the declarant.
Matter remanded back to the Designated Committee to consider afresh the application (declaration) of the petitioner dated 12.12.2019 as a valid declaration and grant the consequential relief after giving due opportunity of hearing to the petitioner, who shall be informed about the date, time and place of the hearing. Such decision shall be in the form of a speaking order with due intimation to the petitioner - petition allowed by way of remand.
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2020 (11) TMI 844
Recovery of arrears of duty - Section 121(c) of Finance Act - Validity of circular dated 25.09.2019 - HELD THAT:- The words “amount payable” has been defined in Section 121 (e) of the Act. It means the amount calculated by the authority as the amount of tax dues less the tax relief. Thus, the amount of tax dues being the amount in arrears in terms of provisions of Section 124(1) (c) read with Section 121(c) of the Finance (No.2) Act, 2019 is the amount of duty which is in arrears as per order in original dated 29.03.2019 i.e. ₹ 1,74,66,374/which has been reflected in the SVLDRS3, by the designated authority who computed the amount of tax relief under Section 124(1)(c) at ₹ 69,86,549.60/. Thus the balance amount as estimated amount payable has been determined at ₹ 1,04,79,824.40.
Thus, neither the circular appears to be in breach of the provisions of Section 124(1)(c) or subsection (2) of Section 124 nor the amount estimated as per SVLDRS3 dated 01.02.2020 suffers from any error.
As prayed by learned counsel for the petitioner, put up this case in the additional cause list on 25.11.2020 at 02.00 p.m.
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2020 (11) TMI 841
Refund of Excess Service tax paid - rejection on the ground of time limitation - HELD THAT:- Identical issue came up for consideration before the Gwalior Bench of this Court in THE COMMISSIONER, CGST AND CENTRAL EXCISE VERSUS M/S NATIONAL FERTILIZERS LIMITED [2019 (8) TMI 1592 - MADHYA PRADESH HIGH COURT], wherein, while relying on the decision in COMMISSIONER OF C. EX., MUMBAI-II VERSUS ALLIED PHOTOGRAPHICS INDIA LTD. [2004 (3) TMI 63 - SUPREME COURT] and M/S. STEEL AUTHORITY OF INDIA LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2019 (5) TMI 657 - SUPREME COURT] it was held that the Tribunal has grossly erred in law in holding that the claim for refund rejected for the reason being time barred, should be treated as within time and the "claims are to be processed", which deserves to be and is hereby set aside. Even shifting the burden on the department to find out as to whether the assessee has not passed the burden of tax on the final consumer cannot be countenanced in the given facts of present case.
Impugned order set aside - refund is to be allowed - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 798
Works Contract Services - business of construction of buildings and civil structures for last several decades - It is the case of the petitioner that, services rendered by the petitioner were actually in the nature of ‘Works Contract’ because petitioner entered into a contract with its client, wherein, transfer of property in goods involved in execution of such contract was leviable to tax - period from October, 2005 to March, 2006 - HELD THAT:- It emerges on record that the petitioner no.1 was rendering services classifiable as ‘works contract’. This fact has neither been disputed by the Commissioner nor by the Tribunal. That only because the petitioner no.1 registered itself for the service tax under the head of ‘commercial / industrial construction services’, the petitioner cannot be fasten its liability to pay service tax on the services rendered by it as ‘work contract’ services.
W.e.f. 01.06.2007 by entering (zzzza) in subsection 105 of Section 65 of the Act,1994 was introduced for the first time by the Finance Act, 2007 to cover the person as taxable person in relation to the execution of the works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams.
The Apex Court in GANNON DUNKERLEY & CO. VERSUS STATE OF RAJASTHAN & LARSEN & TOUBRO LTD. & UNION OF INDIA [1992 (11) TMI 254 - SUPREME COURT] was of the opinion that the service tax charging Section itself must lay down with specificity that the levy of the service tax can only be on works contracts, and the measure of tax only be on that portion of works contracts which contain a service element which is to be derived from the gross amount charged for the works contract less the value of the property in goods transferred in the execution of the works contract. In such circumstances, the Apex Court held that when the legislature has introduced the concept of service tax on indivisible works contracts then such contracts were never intended to the subject matter of the service tax, and therefore, such contracts, not being exempt under the Finance Act, 1994, cannot be said to fall within its tentacles, as which was never the intention of Parliament. The Apex Court, therefore, held that the levy of service tax on works contract was non-existent prior to 01.06.2007.
The contention raised on behalf of the respondents that as the petitioner had voluntarily registered under the head of ‘commercial /industrial construction services’, the petitioner is liable to pay service tax, is not tenable as the petitioner cannot be held to be liable to pay service tax prior to 01.06.2007, where, it is not in dispute that the petitioner was rendering ‘works contract service’.
Petition allowed.
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2020 (11) TMI 797
Rectification of Mistake - error apparent on the record - typographical error or not - the foreign exchange in respect of appeal has been realised on 27.04.2016, 27.05.2016 & 28.06.2016 but the claim was filed only on 28.07.2017 - HELD THAT:- There was indeed a typographical error in mentioning the date of receipt of foreign exchange as 27.04.2016 instead of 27.07.2016. However, since this is not a case pertaining to the transitional period where the exports were made prior to 01.03.2016 and refund claim filed after the date, the ratio of the judgment of the Hon’ble Larger Bench in the case of CCE & CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [2018 (2) TMI 946 - CESTAT BANGALORE] does not apply.
It does not come to the rescue of the appellant since the application for refund was filed after one year from the date of receipt of the foreign exchange even after rectifying the mistake. Accordingly, the application for rectification of mistake is disposed of as follows:
“The date 27.04.2016 mentioned in paragraph 10 of the final order may be read as 27.07.2016.”
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2020 (11) TMI 796
Recovery of Refund of service tax already granted - service tax paid under a mistake of law? - relevant date - Section 11B of the Central Excise Act - Business Auxiliary Service - HELD THAT:- When a payment is made erroneously, the relevant date is the date of payment. However, when an order in original is passed imposing the liability and a payment is made in consequence of that, the relevant date is the date on which an appeal or revision from the order is allowed.
In the present case, as is discernible from Annexure-B, a show cause notice was issued 06.11.2007, prior to which the assessee had made payments on 31.03.2007 and 23.05.2007. Hence the payments now sought for refund were made even prior to the show cause notice issued. The show cause notice culminated in, the order-in-original dated 02.03.2012, which obviously is with respect to the liability after 18.04.2006. This does not even indicate the assessee having paid the tax under protest earlier to the show cause notice; in which event, the second proviso to Section 11B makes inapplicable the limitation of one year from the relevant date, for filing an application for refund.
The respondent-Revenue are restrained from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign agency commission will not be leviable as 'Business Auxiliary service' prior to 18.04.2006 - appeal allowed in part.
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2020 (11) TMI 754
Maintainability of petition - only point of dispute is that Assessee could not file the Appeal within the prescribed time limit of 4 weeks as granted by the learned Single Judge due to overriding reasons and indulgence is now sought to file the said Appeal before the Commissioner within 4 weeks from now - HELD THAT:- The time limit given by the learned Single Judge does not deserve to be extended except subject to the condition of deposit of 50% of the demand under the impugned order dated 27.9.2010.
It is directed that subject to deposit of ₹ 1,50,000/- by the Petitioner/Assessee within 4 weeks from today and filing of the Appeal within 4 weeks from today, the Appeal may be heard and decided on merits in accordance with law by the Commissioner of Service Tax (Appeals) - appeal disposed off.
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2020 (11) TMI 753
Non-payment of service tax - Management or Business Consultant Service or Information Technology Software Service? - modification and customization of software, install the software for use on the equipment for trading, providing support through remote access using the internet as a medium, sending engineers to the site of customers, provide additional training required by the customer from time to time - HELD THAT:- The learned Commissioner after examining the services rendered by he appellant has come to the conclusion that the activities carried out by the appellant is covered under the category of Enterprise Resource Planning (ERP) Software Application and the same is rightly classifiable under the category of Management or Business Consultant service and are liable for service tax - After carefully considering the definition of Management or Business Consultant Service and Information Technology Software Service, it can be concluded that Enterprise Resource Planning implementation would not be covered under Management or Business Consultant service.
Further, as per the terms of the Agreement entered into between the appellant and their clients, the activities undertaken by the appellant are covered under the definition of Information Technology Software Service as specifically covered under the Information Technology Services as taxable under Section 65(105)(zzzze) with effect from 16.5.2008. Further, the activities alleged in the show-cause notice clearly fall within the ambit of Information Technology Software Service as defined in the Finance Act, 1994.
The issue involved in the present case is no more res integra and has been settled by various decisions of the Tribunal and the apex court. In this regard, it is pertinent to mention that this Tribunal in the case of IBM India Pvt. Ltd. [2009 (4) TMI 314 - CESTAT, BANGALORE] has specifically held that implementation of Enterprise Resource Planning does not attract service tax under the category of Management or Business Consultant Service.
Time Limitation - HELD THAT:- The period involved in the present case is from 1.3.2006 to 15.5.2008 whereas the show-cause notice was issued on 8.4.2011 by invoking the extended period of limitation alleging suppression of facts with intent to evade payment of tax by the appellant - the appellant has been regularly filing the returns and was under bona fide belief that their activities are not liable to service tax under Management or Business Consultant Service. It is not disputed that the appellant is paying service tax with effect from 16.5.2008 under the category of Information Technology Software Service. Moreover, the department was very much aware of the activities of the appellant as the department conducted audit of the accounts of the appellant from time to time and the last audit was conducted in December 2009 but has not raised any objections regarding the activities of the appellant, hence, allegation of suppression of material facts against the appellant is not sustainable.
Appeal allowed on merits as well as on limitation.
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2020 (11) TMI 666
Recovery of Refund of service tax - foreign agency commission rendered - services rendered prior to 18.04.2006 - Applicability of Section 66A in the Finance Act, 1994 - HELD THAT:- This Court in SOUTHERN SURFACE FINISHERS AND THRICHUR DISTRICT PADDY MARKETING AND PROCESSING CO-OPERATIVE SOCIETY LIMITED VERSUS THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, MUVATTUPUZHA AND THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, THRISSUR [2018 (11) TMI 1208 - KERALA HIGH COURT] considered the Constitution Bench decision and found that the mistake if committed by the assessee, whether it be on law or facts; the remedy would be only under the statute. If that be so, the questions of law have to be answered in favour of the Revenue and against the assessee. But, however, we notice that the amounts have been refunded to the assessee as per the order of the original authority.
Though, the question of law is answered in favour of the Revenue, the Revenue to be incapable of recovery of the amounts refunded as tax due - appeal is disposed of, answering the questions of law in favour of the Revenue; but restraining the respondent-Revenue from recovering the amounts refunded since as of now the levy of service tax on the payment in lieu of foreign agency commission will not be leviable as 'Business Auxiliary service' prior to 18.04.2006.
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2020 (11) TMI 624
Works Contract Service - exemption under Sl. No. 12(a)/12A of Notification No. 25/2012-ST dated 20.06.2012 - erection, commissioning and installation of transmission lines for various Government companies / corporations - service tax on the reimbursement of amount towards crop compensation, right of way, from the service recipient, being incidental to the works contract executed - Difference of Opinion.
HELD THAT:- In view of difference of opinion, the following question(s) arise for consideration.
1. Whether the view of Member (Judicial) is correct, holding that within the extended meaning of Article 243W, read with 12th Schedule of the Constitution, ‘Transmission and Distribution of Electricity’ is included;
Or
as held by learned Member (Technical) that ‘Transmission and Distribution of Electricity’ is not included in Article 243W read with 12th Schedule of the Constitution?
The Registry is directed to place the records before Hon’ble President for appointment of learned third Member to give opinion on the point(s) of difference.
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2020 (11) TMI 622
Taxable Service or not - payment of remuneration in the nature and form of commission based on percentage of profit to whole time directors - reverse charge mechanism (RCM) - demand of service tax on fixed part as well as the variable pay - benefit of N/N. 30/2012-S.T., dated 20th June 2012 - It is the case of the Department that the said remuneration paid to the Directors would constitute ‘service’ liable to service tax in the hands of appellant assessee under reverse charge mechanism - HELD THAT:- Section 2(94) of Companies Act, 2013, duly defines ‘whole-time director’ to include a director in the whole-time employment of the company. A whole-time Director refers to a Director who has been in employment of the company on a full-time basis and is also entitled to receive remuneration. The certificate issued by the company secretory states that the remuneration is given in various form as allowed under the Companies act, 2013.
The whole-time Director is essentially an employee of the Company and accordingly, whatever remuneration is being paid in conformity with the provisions of the Companies Act, is pursuant to employer-employee relationship and the mere fact that the whole-time Director is compensated by way of variable pay will not in any manner alter or dilute the position of employer-employee status between the company assessee and the whole-time Director - thus, when the very provisions of the Companies Act make whole-time director (as also in capacity of key managerial personnel) responsible for any default/offences, it leads to the conclusion that those directors are employees of the assessee company.
Since demand of service tax is set aside, penalty and interest are also not sustainable.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 621
CENVAT Credit - proper invoices or not - validity of invoices/ bills issued to their office which is unregistered - requirement of Central Excise Registration or ISD Registration for availing CENVAT credit on the invoices issued on a different address - rule 4A of the 1994 Rules read with rule 9 of the 2004 Rules.
HELD THAT:- Once the requirement of rule 4A of the 1994 Rules and rule 9 of the 2004 Rules are satisfied, the benefit of CENVAT credit could not have been demanded. Thus, the Commissioner was not justified in denying the benefit of CENVAT credit on the unregistered premises.
The Commissioner has further held that the benefit of CENVAT credit for services received by the Appellant on the strength of invoices addressed to another unit is not admissible as the Appellant failed to take Central Registration or ISD Registration to avail and distribute the CENVAT credit - This finding of the Commissioner is also not correct. There is no law that prescribes that the only way to distribute CENVAT credit is registering as an ISD.
It has also contended by learned Counsel for the Appellant that no service tax was payable in respect of services imported prior to April 18, 2006. In this connection it has been pointed out that demand on ₹ 7038 was confirmed in respect of services imported from M/s P L Design Company Limited during the period 2005-06. The amount of service tax has been paid by the Appellant and it has also been appropriated in the impugned order. It is, therefore, not necessary to decide this issue.
Except for the demand of ₹ 7038/- that has been appropriated, the remaining demands confirmed by the Commissioner in the impugned order are set aside - Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 619
Valuation - inclusion of balance amount which is in the nature of Travelling Expenses and Boarding Expenses - reimbursable expenses or not - HELD THAT:- The demand is made on the amount that has been incurred by the appellant for travelling as well as lodging expenses. These are nothing but reimbursable expenses and the appellant has paid service on Audit Fee received as consideration for the service rendered - Demand do not sustain - appeal allowed - decided in favor of appellant.
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2020 (11) TMI 584
Validity of appeal preferred by the respondent against an order of assessment under the Finance Act, 1994 - amnesty scheme in vogue - According to the petitioner, if he had been informed of the appeal having been preferred by the revenue, when the amnesty scheme was in vogue, he would have applied for the Amnesty scheme with a view to put the quietus to the matter and would not have had to contest the appeal preferred by the revenue - HELD THAT:- The petitioner has no statutory right to be informed of an appellate right exercised by the revenue, before a communication to that effect is sent to him by the appellate authority prior to the hearing of the appeal. The petitioner cannot also be seen as prejudiced in any manner merely because the intimation of the revenue appeal was received by him after the expiry of the amnesty scheme. His option for the amnesty scheme was not dependent upon whether or not the revenue preferred an appeal against the order of the assessing authority. The petitioner has not made out a case for the reliefs sought for in the writ petition.
Petition dismissed.
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2020 (11) TMI 583
Application for early hearing of the present appeal - recovery of portion of the service tax amounting to ₹ 50,00,000/-, which was already deposited by the appellant on 08/03/2013 itself - HELD THAT:- This is a fit case for granting early hearing and accordingly, the early hearing application is allowed - Registry is directed to list this case for final hearing on 09/11/2020.
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2020 (11) TMI 582
CENVAT Credit - input services - service tax paid on the insurance premium paid to DICGC - service tax paid on the commission paid to the brokers for underwriting the government securities etc and for making investments in securities to maintain mandatory SLR as per the Banking Regulation Act, 1949 - levy of penalty.
HELD THAT:- Matter referred to Hon’ble President for referring the matter to larger bench, for resolving the issues as follows:
a. Whether the interpretation of the legal provisions contained in Section 65 and 66 of the Finance Act, 1994 made in the decision of the CESTAT, in case of South India Bank, satisfy to the test laid down by the five member bench of Hon’ble Supreme Court in case of Dilip Kumar and Co, referred above.
b. Whether the CENVAT credit of the Service Tax paid on the services availed to fulfill a statutory obligation, should be admissible even if the services availed do not otherwise qualify to be input services as defined under rule 2(k) of the CENVAT Credit Rules, 2004 as amended.
c. Whether Rule 6(3B), of the CENVAT Credit Rules, 2004, is an authority for the banks to claim the credit in respect of all the services without establishing that the services under consideration are the common input services for providing the exempted and taxable services.
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