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Service Tax - Case Laws
Showing 61 to 80 of 124 Records
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2020 (2) TMI 758 - CESTAT ALLAHABAD
Refund of service tax paid - Jurisdiction - refund claim stands filed by the branch office whereas the service tax has been paid by their head office - Works Contract service provided to various departments of the Government of Uttar Pradeshterritorial Jurisdiction - Notification No.06/2016-ST dated 01.03.2015 effective from 01.04.2015, Sl. No. (a), (c) & (f) of the entry 12 of the Notification No.25/2012-ST dated 20.06.2012 (Mega Exemption) - Section 11B of the Central Excise Act, 1944 as made applicable to the Service Tax matters vide Section 83 of Finance Act - HELD THAT:- During examination of the refund claims, it was noticed that (i) the appellants did not provide any documents to correlate their refund claims with the conditions specified in Section 102 of the Act, (ii) they failed to produce any documentary evidence to show that they had not passed on the incidence of Service Tax and (iii) the payments for which refund claims were filed, had been deposited through challans under Service Tax Code/Registration Number of their Head Office at Lucknow. Accordingly, Show Cause Notices were issued to them for rejecting their refund claims.
The Original Adjudicating Authority as also Appellate Authority rejected the refund claims on the ground that the same stands filed by the branch office whereas the service tax has been paid by their head office. As such the Original Adjudicating Authority does not have any jurisdiction to pass said refund claims.
Matter remanded for taking appropriate action - appeal allowed by way of remand.
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2020 (2) TMI 757 - CESTAT AHMEDABAD
CENVAT Credit - whether the appellant are required to reverse the Cenvat credit availed during the period when output services (construction) was taxable up to the date of Building Completion Certificate (BCC), since the input services were availed to construct the entire property but after the BCC, the portion of such property did not attract Service Tax? - HELD THAT:- The issue involved is mixed question of law and facts - Since the question is mixed question of law and facts and after evolution of law on the subject matter, the matter needs to be reconsidered.
Matter remanded to the Adjudicating Authority for passing a fresh order - appeal allowed by way of remand.
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2020 (2) TMI 756 - CESTAT MUMBAI
Refund of accumulated credit - proportionate credit of receipts attributable to exports of the quarter bore to the total turnover - rule 5 of CENVAT Credit Rules, 2004 - HELD THAT:- There is no dispute on the receipts from export of services during the quarter. The rival contentions centered around the total turnover. In the review order, it was opined to be the total of the receipts and not related to the exports made while, according to the respondent, the total turnover, in the absence of any other activity, is the same as the computed receipts for the quarter.
On perusal of definition of total turnover, it is receipts in relation to the export of services during the quarter added to consideration for any other services rendered. In the context of the sole activity of respondent, the receipts attributable to exports of the quarter with ‘nil’ addition would be the denominator. With the numerator and denominator being identical, the eligible accumulated credit would have to be sanctioned in entirety. Once eligibility is articulated in the Rules as a formula, an interpretation of the formula is beyond the authority of law.
Appeal dismissed - decided against Revenue.
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2020 (2) TMI 755 - CESTAT ALLAHABAD
Imposition of penalties in terms of provisions of Sub-section (3) of Section 73 of Finance Act, 1994 - service tax alongwith interest was paid before issuance of SCN - HELD THAT:- Under Sub-section (4) of Section 73 of Finance Act, 1994 it is provided that the provisions under Sub-section (3) to said Section 73 are not applicable where non-payment of service tax is on account of suppression of facts. The appellant had not filed ST-3 returns for the impugned period till 20/01/2012 nor paid service tax of ₹ 1.85 crores and the said short payment was detected through an enquiry by Revenue. Therefore, Sub-section 3 of Section 73 of Finance Act, 1994 which empowers conclusion of proceedings of payment of service tax alongwith interest before issuance of show cause notice are not applicable in the present case.
There are no infirmity with the impugned order - appeal dismissed - decided against appellant.
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2020 (2) TMI 754 - CESTAT AHMEDABAD
Nature of activity - manufacture or service - Activity amounting to manufacture or not - process of re-treading of old tyres supplied by the principal on the job work basis - demand of service tax on process of re-trading under the head of ‘Maintenance or Repairs’ - HELD THAT:- The appellant have raised the issue that they are manufacturing re-treaded tyres falling under Heading 4012 of Central Excise Tariff Act 1985 - it can be seen that the Commissioner (Appeals) contended that they were providing service of re-treaded tyres and not manufacturing re-treaded tyres - this contention for the reason that there cannot be any other process for manufacture of re-treaded tyres except re-treading of old and used tyres which the appellant has carried out, therefore, there is absolutely no dispute that the appellant have manufactured re-treaded tyres filing under Chapter heading 4012 of Central Excise Tariff Act, 1985.
Since the activity of appellant is amount to manufacture, it is a subject matter of Central Excise and will not leviable to service tax - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 692 - CESTAT HYDERABAD
Business auxiliary service and GTA services provided under two different firms name separately - composite service or not - Appellant owns another proprietary firm viz., SR Transporters who are also registered with the Central Excise department for providing Goods Transport Agency services - only allegation of the department is that both firms are owned by the same person and are located in nearby plots - extended period of limitation - HELD THAT:- It is undisputed that the two firms have been given separate registrations by the department for different activities. There is nothing on record to show that the department has declined to give registration to one of the units holding that both the units are the same and the services rendered by both firms amount to rendition of a single service requiring service tax to be paid accordingly. It is also not in dispute that both the firms have been paying service tax and filing returns as required under the law - the allegation that there was any suppression of facts or wilful misstatement or fraud on behalf of the appellant is unsustainable.
Both GTA services and business auxiliary services have separate entries in section 65 of the Finance Act, 1994. To allege that services rendered by two different firms, may be for the same client, merely on the ground that both are co-located and are owned by the same person, in our view, is not correct. Only if the contract is for a composite service rendered by a particular service provider the question of the essential character of the service comes into play. Therefore, we do not find any grounds whatsoever to hold that the services provided by the appellant are composite services.
There is no ground, whatsoever, for clubbing the value of services rendered by the two firms. As the basis for demand is incorrect, the demand, interest as well as penalties need to be set aside - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 632 - TELANGANA HIGH COURT
Refund of service tax - commercial and industrial construction service - time limitation - failure to furnish documents to prove that the said service tax amount had actually been deposited with the Central Government - Section 11B of the Central Excise Act, 1944 - HELD THAT:- If the petitioners were not liable to pay ‘service tax’ on the transaction of the purchase of the constructed area along with goods apart from undivided share of land at all, the payment which was made by the petitioners would not be a payment of service tax at all; that the department also could not have demanded payment of the same from the petitioners; and merely because the petitioners made the payment, it would not partake the character of ‘service tax’ and the department cannot retain the amount paid by the petitioners which was in fact not payable by them.
Allegation that Documents were not produced before it as proof of payment of ‘service tax’ - HELD THAT:- The petitioners did not furnish any document to prove that the said service tax amount was actually deposited with the Central Government by 4th respondent is concerned, it is not in dispute that the 1st respondent never asked the petitioners to produce such material in the first place. It is also not the case of the 1st respondent that it had asked the 4th respondent, who according to the petitioner received the said payment on 19.06.2014, as to whether the 4th respondent had credited the same to the Central Government or not - Nothing prevented the 1st respondent from verifying whether the said payment of ₹ 33,77,539/- made by the petitioners on 19.06.2014 was passed on by the 4th respondent to the Central Government by verifying the Service Tax Returns filed by the 4th respondent.
The third ground raised by the 1st respondent in the impugned order for rejecting the claim of the petitioners, the 1st respondent had relied upon the decision in GD. BUILDERS AND OTHERS VERSUS UOI AND ANOTHER [2013 (11) TMI 1004 - DELHI HIGH COURT], but the said decision was overruled by the Supreme Court in COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] specifically. The Supreme Court held that the judgment in GD Builders’s case was wholly incorrect in its conclusion that the Act contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts - the said ground of rejection of the claim of the petitioners also cannot be accepted.
No mechanism for ascertaining value of service component in contracts for construction of complexes - HELD THAT:- Section 66E lays down what constitute “declared services”. Clause (b) thereof mentions construction of a complex, building, civil structure or a part thereof , including a complex or building intended for sale by a buyer fully or partly, except where the entire consideration is received after issuance of completion certificate by the competent authority - the Service Tax (Determination of Value) Rules, 2006 were notified vide Notification No.12/06-ST, dt.19.04.2006 and were amended vide Notification No.11/2014-ST, dt.11.07.2014 w.e.f. 01.10.2014. The said Rules were framed in exercise of power conferred on the Central Government by clause AA of sub-Section (2) of Section 94 of the Act - Rule 2A of the Service Tax (Determination of Value) Rules, 2006 deals with determination of value of service portion in the execution of a works contract mentioned only in clause(h) of Section 66E of the Act.
Rule 2A of 2006 Rules deals only with determination of the value of the service portion in execution of a works contract referred to clause(h) of Section 66E of the Act; and even as of date, no rule has been enacted by the Central Government dealing with determination of value of service portion in a composite contract of sale involving not only a service component but also sale of built up area along with undivided share of land involving also sale of goods included in the total consideration paid for their purchase falling in clause (b) of Sec.66 E, as in the instant case.
Since the claim for refund is based on the decision of the Delhi High Court in Suresh Kumar Bansal’s case (1 supra) which was decided on 03.06.2016, and since the application for refund was filed on 19.08.2016, barely two months after the decision of the Delhi High Court in Suresh Kumar Bansal’s case (1 supra), it cannot be said that there is any inordinate delay in the petitioners seeking refund of the tax paid by them to the 4th respondent.
Petition allowed - the 1st respondent is directed to refund a sum of ₹ 33,77,539/- to the petitioners with interest @ 9% per annum from the date of payment of the same by the petitioners to the 4th respondent i.e., 19.06.2014 till the date of payment to the petitioners.
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2020 (2) TMI 631 - CESTAT CHANDIGARH
Supply of tangible goods - demand of service tax for the period 01.10.2008 to 30.06.2012 and thereafter under negative list up to 31.03.2013 - extended period of limitation - penalty - HELD THAT:- As the right of possession of the vehicle has been in control of the appellant, therefore, they are liable to pay service tax under the said category but the appellant was under bonafide belief that they were engaged in the activity of transportation of goods on behalf of the service recipient and the said service is not taxable in the hands of the appellant. The said understanding of the appellant has been evidenced by various agreements between the appellant and the service recipient which clearly shows that the main activity of the appellant is transportation of goods on behalf of the service recipient.
The appellant was under bonafide belief that they are not liable to pay service tax on the activity undertaken by them. Therefore, the extended period of limitation is not invokable - As it is seen that the whole of the demand has been confirmed against the appellant by invoking extended period of limitation, therefore, the whole of the demand is barred by limitation and consequently, no penalty is imposable on the appellant.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 630 - CALCUTTA HIGH COURT
Maintainability of appeal - appropriate forum - whether the subject matter of this appeal involved determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment? - Works contract service - service tax liability of the assessee for the period prior to 1st June, 2007 pre-dominantly and minimally for the period 1st June, 2007 till 30th September, 2007 - HELD THAT:- Sub- Section (2) of Section 35L (1b) of the Central Excise Act, 1944, clarifies that the determination of the above question shall include the determination of taxability or excisability of the goods. The above section provides that if the issue in appeal relates to any of the above matters then the appeal lies to the Supreme Court. Mr. Chakraborty, learned senior advocate for the respondent, submitted that this court had no jurisdiction, as the above questions were involved.
The entire issue which is before us in the appeal by the revenue is whether the service rendered by the assessee during the material period was a works contract and exempt from service tax or erection, commissioning and installation service. Furthermore, whether during the material period the assessee was exigible to service tax for the service rendered - From the above analysis it is absolutely clear that the above issue has a direct relation to the rate of duty or to the value of goods.
This court has no jurisdiction under Section 35G of the Excise Act, 1944 to entertain, try and determine the appeal - Appeal is dismissed on the point of maintainability.
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2020 (2) TMI 608 - CESTAT CHANDIGARH
Demand of service tax alongwith interest - amount in dispute has already been paid by the respondent but the interest is not paid - recovery of interest.
As per (ASHOK JINDAL) - MEMEBR (JUDICIAL) - HELD THAT:- The amount in dispute has already been paid by the respondent. In these circumstances, we do not find any merit in the appeal, accordingly, the appeal is dismissed.
As per (SANJIV SRIVASTAVA) - MEMBER (TECHNICAL) - HELD THAT:- The respondents though have paid the paid the tax/ duty have not deposited the interest due on account of delay in payment of the tax/ duty. Hence when Commissioner (Appeal) has set aside the proceedings for demand of tax/ duty, it would impact the recovery of interest which has not been paid by the respondents.
It is well settled law and Hon’ble Apex Court has constantly held that demand of interest under a fiscal statue is absolute liability and arises on the account of late payment of tax from the due date. Since the liability is absolute no separate proceedings are required for recovery of interest. In case of admitted duty/ tax liability if there is delay in payment of duty/ tax, the revenue should proceed to recover the interest due on the said admitted tax/ duty along with the admitted duty/ tax.
Thus, recovery of interest under section 11AB of the Central Excise Act, 1944/ Section 75 of the Finance Act, 1994 is not a consequence of confirmation of demand made in terms of Section 11A of Central Excise Act, 1944/ Section 75 of Finance Act, 1994 but is a consequence of delay in payment of duty/ tax. Hence just for the reason that Commissioner (Appeal) has held that demand of duty/ tax cannot be sustained for the reason that assessee has already paid the duty/ tax would not come in the way of recovery of interest that I due for the reason of delay in payment of tax. The interest that is due needs to be recovered as sums due to the government by application of provisions of Section 11 of Central Excise Act, 1944.
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2020 (2) TMI 607 - CESTAT ALLAHABAD
CENVAT credit - input services or not - workmen compensation insurance policy in respect of employees - HELD THAT:- It is very clear that the appellant is engaged in providing security services and detective agency service. To cover the risk of bearing the liability of payment of compensation to the employees in case of any mis-happening, appellant subscribed to said insurance policy for their employees - Therefore, the expenditure incurred was for running of the business and therefore, the said service has to be held to be input service. Therefore, the service tax paid on workmen compensation insurance premium is admissible as cenvat credit.
Credit allowed - appeal allowed - decided in favor of appellant.
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2020 (2) TMI 569 - CESTAT BANGALORE
Service or not - appellant, Kerala Cooperative Deposit Guarantee Fund Board is constituted, under Kerala Cooperative Deposit Guarantee Scheme, 2012 for administration of Cooperative deposit fund, by Government of Kerala - whether the activity of the appellant is identical to the service rendered by Deposit Insurance And Credit Guarantee Corporation (DICGC) in the case of [DICGC [2015 (5) TMI 143 - CESTAT MUMBAI]? - HELD THAT:- In terms of Section 65 B (44) of Finance Act, 1994 “Service” is “any activity carried out by a person for another for consideration and includes a declared service “. Some exclusions are provided in the said Section itself like an activity constituting merely a transaction in money or actionable claim etc. - The appellant claims that they are not collecting any consideration for any particular service rendered but are only receiving contribution towards building a corpus fund and therefore, no service is involved.
The collection of contribution to build a corpus fund to secure the depositors’ interest is not a mere transaction in money. The service rendered by the appellants does not find place either in the exclusion or in the Negative List. Therefore, the Learned Commissioner has correctly concluded that the activity undertaken by the appellants is not transaction in money. Further, Learned Commissioner referring to the Indian Contract Act, 1872 shows that the premium collected by the appellants constitutes a consideration as defined under Section 2(d) of the said Act.
Learned Commissioner has relied upon the case of Deposit Insurance and Credit Guarantee Corporation. The appellants argued that “it would be pertinent to note that the analogy of the Deposit Insurance and Credit Guarantee Corporation of India (DICGC) does not apply in the instant case - the Tribunal in the case has gone into various aspects and have concluded that “it is clear that deposit insurance undertaken by the appellant falls within ambit of general insurance business defined in Section 65(49) read with Section 65(105)(d) of the Finance Act, 1994” - the activity of the appellant is same as that of DICGC and if DICGC is liable to pay Service Tax so is the appellant liable to pay Service Tax.
Penalty - HELD THAT:- The appellants are a body constituted by the Government. There are a number of decisions by the Tribunal and Higher Courts that mens rea cannot be attributed to the Public Sector Units. The appellant is a body constituted by Government. Therefore, it is not expedient and necessitated to impose penalties. Therefore, while confirming the duty demand along with interest, the penalties imposed under Section 77 & 78 are liable to be set aside, by invoking the provisions of Section 80 of the Finance Act, 1994.
Appeal allowed in part.
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2020 (2) TMI 567 - CESTAT BANGALORE
Levy of service tax - Commission received by appellant from Money Exchange Houses abroad - Service charges paid to Foreign Banks against the service received by the appellant-bank - Service charges paid to Master Card International - export of services or not - Circular No.111/5/2009-ST dated 24.2.2009 - benefit of exchange houses - extended period of limitation.
Commission received by appellant from Money Exchange Houses abroad - HELD THAT:- This issue is no more res integra and has been consistently held by the Tribunal as export of service and therefore, not liable to service tax under Finance Act, 1994 - Further, in the case of Kerala State Financial Enterprises Ltd. [2010 (10) TMI 801 - CESTAT, BANGALORE], this Tribunal by relying upon the decision in the case of Muthoot Fincorp Ltd. [2009 (8) TMI 236 - CESTAT, BANGALORE] held that the assessee is not liable to service tax as the same falls under the definition of export of service - the appellants are not liable to pay service tax as the service rendered by the appellant fall in the definition of export of service.
Service charges paid to Foreign Banks against the service received by the appellant-bank - Service charges paid to Master Card International - HELD THAT:- The said services fall in the definition of ‘Import of Service’ and the same was made liable to service tax on reverse charge basis with effect from 18.4.2006 in view of the decision of the Bombay High Court in the case of Indian National Ship Owners Association [2008 (12) TMI 41 - BOMBAY HIGH COURT]. Therefore, up to 18.4.2006, appellants are not liable to pay service tax on reverse charge basis.
Extended period of limitation - HELD THAT:- Commissioner himself has admitted that short-payment of service tax is not deliberate but owing to the reason of system failure. Further, the Commissioner has dropped the penalty under Section 78 by resorting to Section 80 of the Finance Act. Once the penalty under Section 78 is dropped, it means that the Original Authority did not find that there was an intention to evade payment of service tax on the part of the appellant. The essential condition for invoking the extended period of limitation is that there should be an intention to evade payment of service tax and the same is absent in the present case and therefore the extended period of limitation cannot be invoked - In the present case, the show-cause notice was issued on 3.9.2008 for the period 1.9.2004 to 31.7.2007, and the entire period up to 31.3.2007 is barred by limitation.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 515 - CESTAT BANGALORE
Nature of activity - manufacture or service - processing and packing of marine products for merchant exporters - whether the activity of the appellant can be termed as taxable service under the provisions of Finance Act, 1994 as Business Auxiliary Service or the activity can be called as a manufacture as defined under the provisions of Central Excise Act, 1944? - HELD THAT:- It is not in dispute that the processes undertaken by the appellant on the marine products are intended to render such products marketable to consumers. Therefore the appellant’s activity falls under the definition of manufacture and not as taxable service falling under BAS. Both the authorities have not properly appreciated the processes explained by the appellant vis-à-vis the Chapter Note 3 of Chapter 16 CETA, 1985.
The definition of BAS is also examined and it is found that the activities carried out by the appellant do not fall under the BAS as defined under Section 65(19) of the Finance Act - Further as far as demand of service tax on renting of immovable property is concerned, we find that if the other activity carried on by the appellant amounts to manufacture, the demand of service tax on renting of immovable property amounting to ₹ 3,59,574/- will fall in the threshold limit and is exempt and the appellant is not liable to pay service tax on that.
Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 452 - CESTAT KOLKATA
Storage and warehousing services - demand of differential tax - HELD THAT:- There is no dispute that near Renting Godown Space was not taxable during the period or that storage for warehousing agricultural produce was not taxable - Both sides agree that these facts need to be determined and for this purpose, the matter could be remanded to the Original Authority for examination of the documents.
Matter remanded to the Original Authority for Denovo Adjudication for examining the Revenue contracts and invoices - appeal allowed by way of remand.
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2020 (2) TMI 449 - CESTAT CHENNAI
Maintainability of appeal - appropriate forum - Rebate claim - HELD THAT:- The assertion of the Ld. Departmental Representative for the Revenue to be correct since there is no dispute, even by the assessee, that what it claimed was rebate, for which the Tribunal lacks jurisdiction. Moreover, most of the judgements relied on by the appellant are decided by the Appropriate/Revisional Authority and this also indicates that the only course is to approach Revisional Authority and not appellate route. Accordingly, the appeals are directed to be returned as not maintainable.
Appeal dismissed as not maintainable.
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2020 (2) TMI 445 - CESTAT MUMBAI
Rectification of mistake - section 35C of Central Excise Act, 1944 - contention of the Learned Counsel that the order of the Tribunal has erred in recording that only four appeals were disposed off and that ‘four’ should be read as ‘five’, in conformity with the narration of the appeals on the title page, is tenable - HELD THAT:- Any decision on our part on the correctness of the de novo order of the original authority or any direction to handle it any other manner would circumvent the appellate hierarchy and predispose the first appellate authority one way or the other. We, therefore, limit ourselves to the error noted by us in the order and amend the sentence to read as: ‘We take up five appeals of M/s Kasegaon Education Society for disposal by this common order.’
Application disposed off.
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2020 (2) TMI 410 - GUJARAT HIGH COURT
Import of services - reverse charge mechanism (RCM) - Vires of Section 66C (2) of the Finance Act, 1994 read with Rule 10 of the POPS Rules - levy of Service tax on services provided by a person in a non-taxable territory to a person in a non-taxable territory - HELD THAT:- It is not necessary to adjudicate this petition in view of the decision of this Court in case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT] where it was held that N/N. 15/2017- ST and 16/2017-ST making Rule 2(1)(d)(EEC) and Rule 6(7CA) of the Service Tax Rules and inserting Explanation-V to reverse charge N/N.30/2012-ST is struck down as ultra vires Sections 64, 66B, 67 and 94 of the Finance Act, 1994; and consequently the proceedings initiated against the writ applicants by way of show cause notice and enquiries for collecting service tax from them as importers on sea transportation service in CIF contracts are hereby quashed and set aside with all consequential reliefs and benefits.
Petition disposed off.
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2020 (2) TMI 405 - PATNA HIGH COURT
Refund of deducted amount of service tax from the bill of the petitioner - Clause 13(a) of the Notification No. 12/2012-Service Tax dated 17th March, 2012 - HELD THAT:- Reliance can be placed in the case of M/S RISHI BUILDERS INDIA PVT. LTD., VEENA SINGH, VALLABHANENI CONSTRUCTION PVT. LTD, M/S SVSVS PRAJECTS PVT. LTD., M/S NARAYANI NIRMAN, M/S NIRANJAN SHARMA, M/S SAJ INFRACON PROJECT INDIA LIMITED, M/S SAJ INFROCON PROJECT INDIA LIMITED VERSUS THE STATE OF BIHAR & OTHERS [2015 (7) TMI 1345 - PATNA HIGH COURT] where it was held that the concerned respondents are directed to refund the entire amount of service tax deducted from the bills of the petitioners after the issuance of the aforesaid Notification dated 17.3.2012.
Respondents are directed to consider the representation dated 09.09.2019 filed by the petitioners, as contained in Annexure-5, in the light of the aforesaid order - petition disposed off.
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2020 (2) TMI 397 - CESTAT NEW DELHI
Refund of service tax - time limitation - Section 11B of the Central Excise Act, 1944 - HELD THAT:- In this case it is an admitted fact that appellant has filed refund claim within one year from the date of the order of the Hon’ble High Court wherein the appeal filed by the Revenue has been dismissed. In that circumstances, at this stage, the appellant has become entitled to claim refund claim of amount paid by them during the course of litigation.
The appellant has filed refund claim in time in terms of Section 11B of the Act itself. Therefore, no question for rejection of refund claim as time barred by the learned Commissioner (Appeals) - appeal allowed - decided in favor or of appellant.
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