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Service Tax - Case Laws
Showing 41 to 60 of 124 Records
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2020 (2) TMI 1051 - CESTAT NEW DELHI
Demand of Service Tax - Cargo Handling Services - In order to establish a private siding to serve the customers, the Appellant claims to have collected interest free refundable amount from the members of the consortium. - deposits made in favour of the Appellant by the members of the consortium - difference in the rate charged by the Appellant from the members of the consortium and non-members - An agreement was also entered into between the Railways and members of the consortium containing terms and conditions.
HELD THAT:- The amount deposited by the co-users of the siding was an amount to be utilised for construction of the siding or to make payment to the Railways, if the co-user defaulted, in terms of the Indemnity Bond. The liability to pay the charges to the Railways was of the co-user and the Appellant only indemnifies if there is any default by making payment from the amount deposited by the co-users and in such a situation the amount of deposit will get reduced by that much amount which the Appellant has paid. The amount is not utilised for the amount of consideration to be paid by the co-user and indeed no document has been produced by the Department to show that this amount has been utilised for the said purpose. The balance sheet also shows the amount as ‘current liability’ in the books of accounts of the Appellant.
What is, however, contended by the learned Authorised Representative of the Department is that the deposit was towards advance for the consideration to be paid by the co-users for ‘Cargo Handling Service’. This cannot be accepted because in that case there would be no reason for the Appellant to refund the amount to the co users or pay any amount to the Railways in a case where a co-user commits any default in making the payment.
The two issues, namely, payment of consideration by the co-users of the siding to the Appellant for Cargo Handling Services and the amount of freight, demurrage or other charges paid by the co-users to the Railways cannot be mixed. These are two independent issues and whatever payment has been made by the Appellant to the Railways is for the default committed by the co-users in making payment of tollage charges to the Railways and this is met from the amount of deposit in terms of the Indemnity Bond. It is payment of this amount by the Appellant to the Railways in terms of the Indemnity Bond that has led the Commissioner to hold that the amount deposited by the co-user is an advance for payment to the Railways and is not a security. This assumption by the Commissioner is mis-conceived and against the terms of the agreement.
Thus, security deposit for any length of time would not automatically became a sale proceed in the hands of the company and that there is no provision in service tax law for taxing notional interest on a security deposit - the Commissioner was not justified in holding that the amount deposited by the members of the consortium with the Appellant had escaped assessment of service tax, and therefore, the Appellant should include the amount deposited by the consortium members in the gross amount for payment of service tax.
Whether the Appellant had charged lower rates for Cargo Handling from consortium members who had contributed to the deposits as compared to the rates charged from the non members of the consortium? - HELD THAT:- The Commissioner found from a scrutiny of the invoices raised by the Appellant that the Appellant had rendered ‘Cargo Handling Service’ to independent customers at a higher rate than to the consortium members and, therefore, the actual price charged from the consortium members did not reflect the true consideration for Cargo Handling Service. The Commissioner, therefore, held that the price of ₹ 91 per metric ton charged from the non-consortium members should reflect the actual consideration in terms of Rule 3 and 4 of the 2006 Rules - This finding of the Commissioner is perverse, for even the comparison that has been drawn from the table does not reflect this position. The Appellant has in some cases charged lesser rate from the non-consortium members as against that charged from consortium members.
A bare perusal of Rule 3 which is in regard to a case where value of consideration is not wholly or partly consisting of money or when such value is not ascertainable. The Commissioner was, therefore, not justified in holding that the Appellant had suppressed the taxable valued in the ST-3 returns - Demand cannot sustain - the imposition of penalty and interest is also not justified.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1013 - CESTAT NEW DELHI
Business Auxiliary Service - surplus amount - collection of toll, royalty, on behalf of the State Government or Government Department - appellant may either collect more amount than the bid amount and thereby have some profit or surplus or they may collect less amount than the bid amount and thus incur loss - it appeared to Revenue that the surplus amount collected by the appellant, is commission earned for providing the toll/ royalty collection service to the Government.
HELD THAT:- There is no defined consideration, which is an essential element or pre-condition in a contract of service. Admittedly, appellant is not entitled to retain any amount by way of commission, irrespective of the total amount of royalty collected. Admittedly, the appellant incurred loss in some financial year and have got surplus in some of the financial years. Further, it is admitted fact on record that there is no defined consideration, as required under Section 65B(44) of the Finance Act.
The appellant have provided no service to the Department of Mines & Geology, Government of Rajasthan. The appellant have entered into business on principal to principal basis - impugned order not sustainable - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1012 - CESTAT NEW DELHI
SEZ unit - Refund of CENVAT Credit - whether appellant is entitled to refund being in relation to cenvat credit for input services received during the quarter April, 2016 to June, 2016? - HELD THAT:- The facts in this period under dispute are similar to the facts in the earlier two preceding quarters, which have already been decided by the learned Commissioner (Appeals) - the finding of the ld. Commissioner (Appeals) in the appeal for the preceding period, is correct.
Accordingly, this appeal is allowed, the impugned order is set aside to the extent of disallowance of refund, the appellant is held eligible to refund - Decided in favor of appellant.
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2020 (2) TMI 1011 - CESTAT NEW DELHI
CENVAT credit - input services received - advertisement service - audit service - appellant providing services to Western Union as their agent in India - HELD THAT:- The basic requirement is that the assessee taking cenvat credit of input service should be engaged in providing output service, which is taxable under the provisions of the Finance Act - Admittedly, the services provided by the appellant is taxable as Business Auxiliary Services under the provisions of Finance Act, both before 1.7.2012 and after 1.7.2012. The input service credit is not deniable for the reasons that the assessee is exporting the whole of their output services and thus, is not paying any tax.
The show cause notices are mis-conceived and not maintainable - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1007 - CESTAT NEW DELHI
Refund of service tax - export of goods - input services rendered by the Chartered Accountant - specified services or not as per N/N. 41/2012 ST dated 29.06.2012 - HELD THAT:- The bare perusal of the notification and the amendment thereof makes it clear that any service which is being received by an exporter of goods and are used for the export of goods and the service tax thereof has been paid the refund thereof can be claimed provided that the services are rendered at a place which is neither factory nor any other place or premises of production or manufacture. This perusal makes it, abundantly, clear that the question of the service being rendered pre or post export has no significance.
In the present case, the Appellant is the exporter of excisable goods and is claiming refund of service tax paid on the specified services as clarifies in the C.A's certificate as mentioned above, and that the services have been used, admittedly, in and in relation to export - None of the said services appears to have been used for the purpose of production of soap stone - all are the services which are to be used beyond the factory or premises of production or manufacturer.
Whereas the specified services in the impugned notification, are the services irrespective pre or post export/clearance but those which are beyond place of production or manufacture - the order is held to be a result of wrong interpretation of the relevant notification, accordingly, is hereby set aside - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1001 - CESTAT MUMBAI
Refund of accumulated CENVAT Credit - output services exported for the period April, 2016 to June, 2016 - Research & Development Service - Garden Maintenance service - recruitment services - Rule 5 of Cenvat Credit Rules, 2004.
Research & Development Service - HELD THAT:- The Research & Development Service performed by the Appellant is export of service in terms of Rule 3 of Rules, 2012. Earlier also for the period July, 2012 to September, 2012, October, 2012 to December, 2012 and January, 2013 to March 2013, the said services were treated as export of services by the department and no relevant material has been placed on record to treat the same differently for the period in dispute - Therefore the Scientific and Technical Consultancy Services provided by the Appellant to DITC is to be treated as export of service. Rule 5 of Cenvat Credit Rules, 2004 was amended vide Notification No. 18/2012-CE (NT) dated 17/03/2012 and after amendment the said rule provides that the refund of Cenvat credit is allowed to service provider when the output service is exported. After amendment of the said Rule, no nexus is relevant between input or input services with the output service and therefore the present refund claim which relates to the period April, 2016 to June, 2016 is correctly availed by the Appellant for the aforesaid service - refund allowed.
Garden Maintenance service - HELD THAT:- The Principal Bench of the Tribunal in the matter of M/S HCL TECHNOLOGIES LTD VERSUS C.C.E. NOIDA [2015 (8) TMI 595 - CESTAT NEW DELHI] held that the garden service qualified as input services and therefore following the said principle, this refund claim is allowed.
Recruitment service - service was rejected on the ground that there is no nexus between the recruitment service and the output service provided by the Appellant - HELD THAT:- A co-ordinate bench of the Tribunal in the matter of COMMISSIONER OF CENTRAL EXCISE PUNE-I VERSUS SAI LIFE SCIENCES LTD. [2016 (2) TMI 724 - CESTAT MUMBAI] has held that since the company therein has recruited the employees having vast experience in research, therefore credit is admissible - refund allowed.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 1000 - CESTAT NEW DELHI
Revision of amount of service tax - Composition scheme - works contract - difference of opinion - matter referred to the Larger Bench/
HELD THAT:- It would be appropriate to refer the following issue to a Larger Bench:
“Whether in view of the provisions of Rule 3 of the Composition Scheme, a person who is liable to pay Service Tax in relation to a Works Contract Service opts to discharge his Service Tax liability under Rule 3 of Composition Scheme by opting to pay an amount equivalent to the percentage of the gross amount charged for the works contract, shall be required to pay the amount equivalent to the same percentage of the gross amount charged for the works contract till the completion of the said contract, even if the percentage is revised subsequently?”
The file may, therefore, be placed before the Hon'ble the President for constituting a Larger Bench.
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2020 (2) TMI 999 - CESTAT ALLAHABAD
Maintainability of appeal - non-compliance with the mandatory pre-deposit in terms of Section 35F of Central Excise Act - HELD THAT:- The said deposit of ₹ 96,187/- made by the appellant was not in the regular course of their business of providing services. The same was deposited by them subsequently by way of two challans dated 31.03.2015 for an amount of ₹ 72,663/- and another challan dated 13.04.2015 depositing an amount of ₹ 23,524/- - As such, it is seen that the entire service tax deposited is to the tune of ₹ 6,81,817/- and the appellant having confirmed an amount of ₹ 96,187/- has to be held as having pre-deposited the mandatory amount of 7.5% of the amount.
Matter remanded to Commissioner (Appeals) for deciding the matter on merits, after giving an opportunity to the appellant to put forth their case - appeal allowed by way of remand.
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2020 (2) TMI 965 - DELHI HIGH COURT
Scope of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - whether the proposed confiscation is covered by the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019? - HELD THAT:- Prima facie, it appears to us that the respondent’s legacy scheme should be broad enough to cover not only the aspect of demand of duty, but also to cover cases where goods are liable to be released upon payment of redemption fine in lieu of confiscation. Otherwise, the Scheme may itself provide only partial relief to the parties and also leave disputes unsettled thereby defeating the very object of the Scheme.
The respondents are directed to examine the aforesaid aspect and place their response on record within four weeks - Rejoinder be filed before the next date.
List on 10.09.2020.
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2020 (2) TMI 964 - CESTAT CHENNAI
Non-payment of service tax - storage and warehousing services within the FTWZ rendered to clients based abroad as well as Indian clients - period July, 2012 to March, 2015 - reimbursable expenses or not - HELD THAT:- It is not disputed that the storage and warehousing unit was inside the Free Trade Zone (SEZ). It is also not disputed that the service recipient is situated abroad and also that the consideration received for these services is in convertible foreign currency. The department has proceeded to demand service tax alleging that there is no export of service since the place of provision of service is located in India.
Section 26, Clause (e) provides for exemption from service tax. Section 51 states that the Act will have overriding effect notwithstanding anything inconsistent in any other law. This Act thus will override the Finance Act, 1994, as well as the Rules framed thereunder to give effect to the exemption contained in Section 26 - In such circumstances, the department cannot press into application Service Tax Rules, Place of Provision of service or other Rules to hold that the appellant has not exported any services. The meaning of service and export contained in the special legislation of SEZ Act, 2005 by which SEZ or FTWZ has been created has to be given effect. The Service Tax Rules, 1994 cannot be pressed into application so as to defeat the intention and purpose of Section 26. When the intention of creating such FTWZ within India is to give exemption from levy of all duties and taxes, the department ought to have confined to the definitions contained in Section 2 (z) and 2 (m) of the said Act. Further, the consideration is received in foreign currency as well as the service recipient is a person placed outside India. The department cannot then contend that there is no export of services. The demand of service tax on consideration received by the appellant from the foreign service recipient under Storage and Warehousing services cannot be subject to levy of service tax under reverse charge mechanism - demand set aside - the issue is found in favour of the appellant.
Demand on amounts collected by appellant and confirmed under various services - HELD THAT:- Learned Consultant has submitted that they have not produced necessary documentary evidence before the adjudicating authority to establish the nature of these amounts. That these are actual reimbursements - the appellant has to be given a further opportunity to furnish necessary documents in this regard - For this limited purpose of reconsideration of demand on such charges/services, the matter is remanded to the adjudicating authority.
Appeal allowed in part and part matter on remand.
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2020 (2) TMI 908 - CESTAT CHENNAI
Refund of un-utilized Cenvat Credit - refund denied for the reason that the appellant did not debit the refund amount from its Cenvat Credit balance at the time of making the claim - HELD THAT:- The period of dispute in this case is April, 2017 to June, 2017 and the application for refund was filed on 06.10.2017. There is no dispute that the appellant did not debit the refund amount since the same was carried over to GST through TRAN-1 and that the appellant did reverse the refund amount in their GSTR-3B Return for the month of October, 2018 under ITC reversal.
There being no provision in the ACES system to debit the refund amount in the GST regime, subsequent reversal in the GSTR-3B file is sufficient compliance with paragraph 2(h) of Notification No. 27/2012 ibid, which is also in tune with the CBIC Circular No. 58/32/2018 ibid - there is no justification in the denial of refund by the authorities.
The denial of refund is not in accordance with law - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 907 - CESTAT MUMBAI
Quantum of penalty - According to the Adjudicating Authority it is 15% of the Service tax amount whereas as per the first appellate authority it has to be 25% - service tax alongwith the interest paid on being pointed out - HELD THAT:- The appellants have all along admitted the tax liability and paid the same with the interest, wherever there is a delay. For penalty Section 78 ibid has been invoked by the Revenue. 2nd proviso to Section 78 ibid mentioned that if the assessee pays the service tax within thirty days of the receipt of order of the Central Excise Officer determining the amount of service tax u/s. 73(2), the penalty shall be twenty five percent of the service tax so demanded. The said proviso prescribing concession in penalty to the extent of 25% of duty demanded subject to payment of all dues within 30 days of the order was introduced with effect from 14.5.2003.
In view of the Corrigendum issued by the Adjudicating Authority, failure of Appellant to pay penalty amount within 30 days of adjudication order cannot be held against the Appellant. The learned Commissioner in the impugned order did not extend this option to the Appellants although he ought to have given this option. May be because of recording the wrong facts in the impugned order that the Order-in- Original is dated 26.2.2016 [whereas the same is dated 15.7.2016] and the penalty of 10% was paid on 30.3.2016 and another 5% on 11.8.2016 by the Appellant. But the fact of the matter is that the show cause notice was issued on 26.2.2016 and not the Adjudication Order/Order-in-Original.
In order to meet the ends of justice, the impugned order needs to be modified and it will be proper to give option to the Appellant to deposit the remaining amount of penalty in order to make it twenty five percent of the service tax amount within thirty days of the communication of this order - Appeal disposed off.
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2020 (2) TMI 906 - CESTAT NEW DELHI
Withdrawal of appeal - appellant had filed declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - HELD THAT:- Taking note of the fact that the appellant has filed declaration under the said scheme, the appeal is dismissed as withdrawn with liberty for the appellant to approach the Tribunal to restore the appeal in case discharge certificate is not issued for the dispute pertaining to this appeal.
Appeal dismissed as withdrawn.
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2020 (2) TMI 865 - CESTAT HYDERABAD
Levy of Service Tax - activity of transportation of pipes by road from their factory to site - reverse charge mechanism - HELD THAT:- It is no doubt that the appellant is executing works contract but during their activity, they are receiving services of transportation and in terms of Rule 2(1)(d)(v) of Service Tax Rules, they are required to pay service tax being a service recipient of transportation under reverse charge mechanism. Therefore, the appellants are liable to pay service tax along with interest.
Penalty - HELD THAT:- Considering the facts of the case that the appellant is entitled to avail CENVAT Credit thereon, therefore, by invoking Section 80 of the Finance Act, 1994, the penalty imposed on the appellant is set aside - appellant is at liberty to avail CENVAT Credit of service tax paid being service recipient on the transportation service.
Appeal disposed off.
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2020 (2) TMI 864 - CESTAT KOLKATA
Levy of service tax - reimbursable expenses received - Management Consultancy Services - period October, 2001 to March, 2006 - vires of Rule 5 of the Service Tax (Determination of Value) Rules,2006 - time limitation - HELD THAT:- The demand of Service Tax of ₹ 19,02,103/- on reimbursable expenses is clearly not sustainable for the reason firstly that the Service Tax (Determination of Value) Rules, 2006 came into force w.e.f. 19-04-2006 whereas the period of dispute on this count is from October,2001 to March, 2006. Since, the valuation rules are substantive in character, it cannot be given retrospective effect as held by the Hon’ble Supreme Court in the case of UOI Vs. Inter Continental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT] - Secondly, Rule 5 of the Service Tax (Determination of Value) Rules,2006 which seeks to include reimbursable expenses into the gross amount charged is declared ultra vires of Section 67 of the Finance Act,1994 by the Hon’ble Supreme Court in the case of UOI Vs. Inter Continental Consultant & Technocrats Pvt. Ltd. - demand set aside.
Commercial Training or Coaching Services - HELD THAT:- The training provided by the Appellant is relating to enhancement of ability, skill development and productivity are vocational training which are not general academic courses and the Appellant is entitled to exemption under Notification No.9/2003-ST Dated 20-06-2003 as amended and Notification No.24/2004-ST Dated 10-04-2004 which exempts vocational training by Commercial Training or Coaching Centre from levy of service tax. As per Explanation to Notification No.9/2003-ST Dated 20-06-2003 vocational training institute means a commercial training or coaching centre which provides vocational coaching or training that import skills to enable the trainee to seek employment or undertake self employment directly after such training or coaching.
Further, Notification No.24/2004-ST Dated 10-09-2004 is amended by Notification No.3/2010-ST dated 27-02-2010 by which the Explanation is substituted w.e.f. 27-02-2010 which defines vocational training institute to means an Industrial Training Institute or Industrial Training Centre affiliated to the National Council for vocational training offering courses in designated trades as notified under the Apprentice Act. The said amendment is applicable from 27-02-2010 - The period under dispute in the instant case is prior to 27-02-2010. From the perusal of Para 3 of the show cause notice dated 27-10-2008, it is found that the Appellant have been claiming that they are providing vocational training services which are not commercial training services.
The case of the Appellant is directly covered by decision of the Tribunal in the case of CCE Vs. Ashu Exports Pvt. Ltd. [2014 (3) TMI 863 - DELHI HIGH COURT] wherein it is held that courses imparted in procedural and practical skill based training in areas such as export-import management, retail management and merchandising would be entitled to exemption under Notification No.9/2003-ST and Notification No.24/2004-ST.
Extended period of limitation - Penalties - HELD THAT:- No offense and penalties can be created with retrospective effect nor in the facts and circumstances of the case extended period of limitation can be invoked - thus, neither extended period of limitation can be invoked nor the penalties can be sustained.
The impugned Order is seta side to the extent of demand prior to March, 2006 and the period beyond the normal demand in Section 73 of the Finance Act, 1994 - appeal disposed off.
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2020 (2) TMI 815 - GAUHATI HIGH COURT
Levy of Service tax - Whether the tribunal was correct in accepting the contention of the respondent BSNL that service tax is leviable on the actual receipts and not the gross receipts? - HELD THAT:- Section 35C of the Central Excise Act, 1944 confers jurisdiction upon the Appellate Tribunal to pass such orders which are indicated therein, including orders confirming, modifying or annulling the decision or order appealed against. However, Section 35C of the Act of 1944, does not confer any jurisdiction upon the learned Tribunal to carryout assessment of the tax liability and records its own conclusion on that behalf. Thus, a function which has to be left to the assessing authorities had been undertaken by the learned CESTAT in a manner, which is, impermissible in law, more so, when such an exercise was not attempted even by the Commissioner of Central Excise. Moreover, no justification whatsoever has been offered in the impugned order dated 13- 12-2018 as to the reason why the appeal preferred by the appellant herein was rejected.
The impugned order dated 13-12-2018 is held to be unsustainable in the eye of law and the same is accordingly, set aside - Appeal allowed - decided in favor of appellant.
Revenue permitted to issue fresh SCN - Such demand, if any, raised by the appellant, shall clearly specify and exclude the “non-taxable” services from the gross receipt and also indicate the period as well as the particulars of the SSA to which the same relates to.
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2020 (2) TMI 814 - CALCUTTA HIGH COURT
Maintainability of appeal - appropriate forum - Section 35L(1)(b) of the Central Excise Act, 1944 - principles of natural justice - time limitation - HELD THAT:- There are no proper reasons have been given in support of its finding. It has also not taken into account, the certificate dated 4th December, 2018 of the Metro Railway certifying the nature of service rendered by the appellant.
Time Limitation - HELD THAT:- The question of limitation is a mixed question of law and fact. The appellant has pleaded that the respondents had knowledge of the transactions relying on their earlier show cause notice dated 17th September, 2004 on the self-same issue, relied upon in the subject show cause notice dated 27th March, 2007. Thus, everything was to their knowledge. There was no suppression of any fact. That question and any other factual issue with regard to the suppression of facts ought to have been gone into in detail by the learned tribunal.
When the impugned order of the tribunal is challenged on the above ground that it was passed in breach of the principles of natural justice and in ignorance of the law of limitation, then, it cannot be said that the appeal has a relation to classification of goods, its valuation or the rate of duty. It is neither directly nor indirectly related to these questions - Since, mixed questions of facts and law are involved, it would be proper to remand the entire matter to the tribunal for re-consideration and re-determination.
Appeal allowed by way of remand.
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2020 (2) TMI 813 - BOMBAY HIGH COURT
Demand of service tax - time limitation - Section 73 of FA - case of petitioner is that there is not only delay of six months from conclusion of the argument till pronouncement of order but because of this delay gross errors have occurred in the order which has caused severe prejudice to the Petitioner - HELD THAT:- The factum of delay of six months in passing the order after the hearing was concluded is not in dispute - The Division Bench of this Court in the case of SHIVSAGAR VEG. RESTAURANT VERSUS ASSTT. COMMISSIONER OF INCOME-TAX, MUMBAI [2008 (11) TMI 64 - HIGH COURT BOMBAY] had observed that the delay by the Adjudicating Authority in rendering its order nine months after the conclusion of the hearing has caused prejudice to the Petitioner as it has not considered the evidence produced in respect of return of goods within 180 days.
The impugned order dated 12 July 2019 passed by the Respondent No.2 is quashed and set aside. The proceedings are restored to the file of Respondent No. 2 - Petition allowed by way of remand.
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2020 (2) TMI 812 - KARNATAKA HIGH COURT
Invocation of Extended period of Limitation - presence of two views as whether the service provided by the respondent is Management or Business Consultancy or not - HELD THAT:- The services rendered by the respondent would fall within the definition of Section 65(105(r) of the Act inasmuch as the services rendered by the respondent is a business consultancy service which would partake its character from the definition as per definition clause. Since respondent is engaged in providing service either directly or indirectly in connection with the management of any organization or business, said activity would fall within the four corners of ‘management or business consultancy service’. Hence, it is taxable service as per the provisions of the Act. It is because of this activity carried out by the respondent, Tribunal has rightly held that the definition is to be construed as inclusive definition and any service provided in connection with the management or business consultancy is liable to tax.
Invocation of extended period of limitation when respondent is a Government organization - Whether under the facts and circumstances of the case, the CESTAT is right in restricting the demand only for normal period without discussion and finding with regard to culpability of the respondent? - HELD THAT:- The SCN which came to be issued to respondent - assessee was based on intelligence input gathered by the officers of the appellant-revenue that there has been evasion of payment of service tax on the taxable services rendered by respondent - assessee. It is not the case of the appellant that there was either fraud perpetrated by the respondent or there has been any collusion or willful mis-statement of facts before the revenue. In the absence of any of these ingredients present, we are of the considered view that invoking of extended period of limitation would not arise.
The Tribunal is just and correct and question of applying the extended period of limitation as provided in the proviso to Sub-section (1) of Section 73 of the Act would not arise in the facts and circumstances of this case and demand raised for the restricted normal period as prescribed under Sub-section (1) of Section 73 of the Act is proper - Appeal dismissed - decided against Revenue.
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2020 (2) TMI 759 - CESTAT ALLAHABAD
Commercial training or coaching service - Nature of activity - sale or service - sale of books - provisions of hostel facility and sale of books - naturally bundled services or not - exemption on hostel facility.
Whether sale of books is service? - HELD THAT:- It was not compulsory that books cannot be sold to any other person than the one who was receiving the commercial training or coaching service. The books were published by M/s MKC Publication and were available on flipkart for purchase by anybody. The separate invoice were issued for sale of books and cash receipts out of sale on books were separately maintained in the book of account - the value of the books cannot be ascertained on the basis of the cost of paper used and cost of printing - sale of books was not taxable activity and therefore, there was no service tax leviable on the sales value of books.
Whether provisions of hostel facility and sale of books are to be combined with provisions of commercial training or coaching service as bundled service? - HELD THAT:- Revenue has not brought forward any evidence that majority of service providers in the field of commercial coaching or training service provided hostel facility. In terms of the criteria stated in the manner of determining if the services are bundled as clarified by Central Board of Excise & Customs it is not possible to bundle service of provisions of hostel facility with commercial training or coaching in the present case - the provisions of commercial training or coaching service and provisions of hostel cannot be bundled under the provisions of Section 66F of the Finance Act, 1994.
Whether service tax was exempted on hostel facility? - HELD THAT:- The hostel facility is provided for less than ₹ 100/- per day and therefore, it is entitled for exemption under Notification No.31/2011 dated 25 April, 2011 and Serial No.18 of Notification No.25/2012-ST - confirmation of service tax on hostel charges set aside.
Penalties - HELD THAT:- Since the demand on service provider do not sustain, the penalty on the other appellant does not sustain. We set aside penalties imposed on Shri Saurabh Singh, the appellant.
Except for the service tax, interest and penalty paid by the appellant before issue of show cause notice, the impugned order is set aside - appeal allowed - decided in favor of appellant.
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