|
Advanced Search Options
Service Tax - Case Laws
Showing 41 to 60 of 891 Records
-
2022 (12) TMI 657 - CESTAT NEW DELHI
Extended period of limitation - commercial or industrial construction service [CICS] - construction of STP, ETP and sewage systems
(a) Whether onshore oil fields of “ONGC Ahmedabad of the appellant, which have been registered under the Mines Act, 1952, wherein only extraction of crude oil is done, qualify as a factory in terms of section 2(e) of the Central Excise Act, 1944? And thus, activity of construction of Effluent Treatment Plants (“ETPs”) by appellant in such fields not eligible for exemption under Sl. 13(d) of the Notification No. 25/2012-ST dated 20.06.2012?
(b) Whether extraction of crude oil amounts to manufacturing?
HELD THAT:- This issue has already been decided by the Tribunal in the aforesaid decision rendered in UEM India Limited [2021 (8) TMI 801 - CESTAT NEW DELHI]. Thus, for all the reasons stated in the aforesaid order of the Tribunal, it would not be possible to sustain the order.
Decided in favor of assessee.
-
2022 (12) TMI 604 - SUPREME COURT
Paperless Court - Incorporation of ICT (Information and Communication Technology) initiatives in regard to revenue litigation - Directions issued - the Union government must now take all expeditious steps to ensure that filing by the Union government of all appeals and proceedings before the High Courts as well as the revenue tribunals, including the CESTAT and the ITAT should take place in the e-filing mode. The High-Powered Committee shall accordingly proceed to take necessary steps to achieve the above goal so that e-filing can be made universal within a period of three months where the government is in appeal.
Functioning of GST Tribunals - The Union government shall take necessary steps to ensure that while the modalities for the GST tribunal are being put in place, they shall include the requirement that all filings should be in the electronic mode exclusively and that the tribunal should be paperless in its operations.
-
2022 (12) TMI 603 - MADRAS HIGH COURT
Rejection of SVLDRS declaration - remedy available to petitioner - delay of eight to nine months in filing these writ petitions - whether the case of the petitioner falls within the purview of the exception in Section 125(1)(e) of the SVLDRS, 2019 or not? - quantification qualifies as quantification before 30.6.2019 under SVLDRS, 2019 or not - HELD THAT:- the rejection of applications filed by the respective petitioners and communication of the same after the scheme has expired did not bar the respective petitioners from challenging the impugned orders rejecting their application under the SVLDRS,2019
Had the petitioner immediately challenged the impugned orders rejecting their declaration as soon as it was communicated to them before the so called expiry period under SVLDRS,2019, could it be said that the petitioners were barred from proceeding further and the Court was barred from passing a final order? In our view, the writ petitions could not have been dismissed.
If the Declarations were filed for settling the tax case under SVLDRS, 2019 in time but were rejected at the threshold, an applicant whose application was rejected cannot be left without any remedy as the right to have the case settled under the SVLDRS, 2019 is a substantive right. - In our view, the respective Writ petitions cannot be rejected in limine.
Validity of show cause notice - Proper officer - HELD THAT:- the second respondent, the Principal Additional Director General, Directorate General of Goods and Service Tax Intelligence, is a Central Excise Officer.
The second respondent was therefore competent to issue the impugned Show Cause Notice No.47 of 2020 dated 25.09.2020 under Section 73 of the Finance Act, 1994 to the petitioner. Whether the Show Cause Notice makes out a case for evasion of tax, warranting invocation of the provisions of the Finance Act, 1994 is altogether a different issue. We will refrain from making any observation on the merits of the case.
Validity of orders of the Designated Committee - quantification qualifies as quantification before 30.6.2019 under SVLDRS, 2019 or not - Claim of quantification based on letter issued by the Audit Team or Investigation team - HELD THAT:- There should have been a quantification of the tax dues/duty liability on or before 30.06.2019 as per Section 123(c) where the tax dues are linked to an enquiry, investigation or audit against the declarant so as not to attract the exception under Section 125(1)(e).
Non-quantification of tax dues acts as a dis-qualifier and therefore inhibits a person from availing the benefit of the SVLDRS, 2019. Such a person cannot file a declaration under the scheme. Quantification of “tax dues” is sine qua-non for availing the benefit for relief under Sec.124(1)(d) of SVLDRS,2019.
During the course of enquiry investigation or audit, a person can file a Declaration under SVLDR, 2019 provided there is a proper quantification of tax liability on or before 30.06.2019. However, mere filing of a Declaration ipso facto will not mean that the enquiry, investigation or audit has to be stopped. If the amount quantified is correct, such quantification can be accepted. However, if enquiry, investigation or audit is complete, where there is no quantification, there is no scope for filing Declaration.
However, it is not the self declared quantification of a Declarant of “tax dues” which will entitle the benefit of the aforesaid scheme. The scheme brings a closure to the tax dispute with issuance of certificate under Section129 of SVLDRS, 2019. It has to be a quantification which ought to have been accepted by the Investigating Wing or Audit Wing of the Department.
Failure to furnish the details and information sought during Audit / Investigation - HELD THAT:- The details furnished by the petitioner in its communication dated 24.10.2018 and the information in the Show Cause Notice dated 26.02.2022indicate that the petitioner did not make a complete disclosure. There was no proper quantification of the tax due by the petitioner for the entire period between March 2016 to June 2017.
However, only an adhoc quantification was made for the “tax dues” period between April 2017 to June 2017. Therefore, there was quantification for the aforesaid period alone. No quantification was provided by the petitioner for the period between March 2016 to March 2017 for the purpose of definition under Section 121(r) r/w Section 123(c) & Section 124(1)(d). The disability under Section 125(1)(e) of SVLDRS, 2019 is attracted for the period between March 2016 to March 2017 and therefore as an errant taxpayer whose tax liability has not been determined, the petitioner is not entitled to avail the benefit of SVLDRS, 2019 for the period between March 2016 to March 2017.
-
2022 (12) TMI 602 - CESTAT AHMEDABAD
Demand of service tax - providing real estate agent services - self service or not - Extended period of limitation - assessee were not registered with service tax department and not paying service tax - it was submitted that, the service provided by the Appellant till the execution of the sale deed would be in the nature of “self service” and would not attract service tax.
HELD THAT:- It is common knowledge that the real estate agent transacts the business of sale or purchase of the property, leasing or renting of the property and gets an amount as a commission. Though the definition of real estate consultant talks about evaluation, construction, design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management of real estate, it has to borne out of the record that such services are rendered. As already stated hereinabove that the appellant herein has not rendered any of the services.
It is clear that the amount received by the appellant as development charges which are nothing but in the form of profit, which will not get covered under the category of real estate agent services.
We agree with the learned advocate that the services being provided by the appellant were not ‘Real Estate Agent' service so as to confirm service tax on the same.
-
2022 (12) TMI 601 - CESTAT MUMBAI
Refund of service tax wrongly / under a mistake of law - Period of limitation - Club or Association Services - refund claim on the ground that, they have paid service tax under protest as they are Co-operative Society not engaged in any activity of profit and as per the principle of mutuality, services provided by them to their members would not be liable to Service tax under the Club or Association Service. - HELD THAT:- In view of series of decisions it is clear that the appellant cannot be said to be liable to pay service tax in any manner whatsoever inasmuch as what was paid by the appellant was not tax as envisaged under the Finance Act, 1994. Thus, the amount paid by the Appellant would not take the character of tax but is simply an amount paid under a mistake of law.
Since Service Tax received by the concerned authority is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the authority concerned has no right to retain the same. A similar view has been taken by the Hon’ble High Court of Judicature at Bombay in the matter of Parijat Construction v. Commissioner Excise, Nashik, [2017 (10) TMI 659 - BOMBAY HIGH COURT]. by holding that limitation prescribed under Section 11B of Central Excise Act, 1944 not applicable to refund claims for Service Tax paid under mistake of law.
Refund allowed.
-
2022 (12) TMI 600 - CESTAT MUMBAI
Demand of services on ‘surrender charge’ retained by the appellant upon withdrawal of ‘insured’ from ‘unit linked insurance policies (ULIP)’ - voluntary withdrawal from coverage under ‘unit linked insurance policy (ULIP)’ - HELD THAT:- It is, unabashedly, about treating the return of the consideration, once already considered for taxability, upon discontinuation of contract of service even though such retention does not alter either that reality or that no additional consideration has passed from recipient to appellant while the provision of service subsisted. The ‘premium’ paid in the past by the recipient was in pursuance of contract providing for amortized payments towards the bundled service – each of which was assessed to tax on receipt by the appellant – over the contract period and obliging of repayment of the amounts, not attributable to service already rendered by coverage and investment, upon termination of contract of service may be treated as consideration only in a bizarre, and perverse, context that is out of touch with the reality of transactions in the insurance sector.
This was the finding in re Bharti- AXA Life Insurance Company Ltd [2021 (7) TMI 735 - CESTAT MUMBAI] which, de hors the decisions in earlier rulings, led to the outcome therein. The taint, if any, that the other decisions may have vis-à-vis the recall of the decision in re Reliance Life Insurance Company Ltd [2018 (4) TMI 1407 - CESTAT MUMBAI] has no bearing on the binding precedent of this decision placed before us on behalf of the appellant.
The ‘surrender value’ so retained had already been subjected to tax as ‘premium’ for rendering of taxable service and not liable to be taxed again for that very reason upon ceasing to be provision service
-
2022 (12) TMI 599 - CESTAT NEW DELHI
Construction of complex service - construction of a single residential unit - Demand of service tax for the period 2005-06 to 2008-09 - work order was for building independent residential buildings on behalf of the Housing Board and each house that was constructed was an independent residential unit - HELD THAT:- The definition of a ‘residential complex’ leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units.
Independent buildings having twelve or less than twelve residential units would not be covered by the definition of ‘residential complex’. In the present case, the appellant had constructed independent buildings having one residential unit only. Thus, even if the appellant had constructed more than 12 independent buildings, the nature of activity would not be ‘construction of complex’ and, therefore, the service tax could be levied.
Levy of service tax on the appellant under ‘construction of complex’ service cannot be sustained.
-
2022 (12) TMI 565 - JHARKHAND HIGH COURT
Demand of service tax - Time Gap between personal hearing and passing of final adjudicating order - Difference in value declared in ST-3 returns and income/receipts declared by the assessee in its Income Tax Returns and 26AS statements - Reconciliation of statements - Principle of natural justice - Petitioner in reply to show cause notice submitted detailed reconciliation statement of difference of the figures between ST-3 Return and 26AS Statement for the financial years 2012-13 to 2015-16, and, asked for additional four weeks time to submit reconciliation for the period 2016-17 to 2017-18 (up to June, 2017). However, to the utter surprise of the Petitioner, it received adjudication order straight away.
HELD THAT:- A series of circulars have been issued by CBEC laying down guidelines that there should not be any unreasonable delay in passing adjudication orders which will be causing difficulties and obstacle in realizing public revenue expeditiously. In fact, in the interest of revenue itself, delay in passing of the adjudication orders would act as an impediment in timely realization of the disputed amount. That apart, pronouncement of judgment, being a part of justice dispensation system, has to be without delay, as justice should not only be done but should also appear to have been done.
The present case is a classic example wherein due to delay in passing of the adjudication order it appears that the most vital documents submitted by the assessee, being the reconciliation documents, were not considered and dealt with by the adjudicating authority despite the fact that they admit now in the supplementary counter affidavit that the same were available on record. An obvious inference of omission to make reference to the documents can be due to the delayed delivery of the Judgment causing grave prejudice to the assessee and miscarriage of justice.
Matter restored back for fresh adjudication.
-
2022 (12) TMI 564 - BOMBAY HIGH COURT
Maintainability of petition - availability of alternative remedy - whether we should exercise writ jurisdiction to set aside the order passed by the Tribunal against which a substantive appeal is available? - HELD THAT:- The Tribunal has sought to reconcile the decisions in the cases of SBI Card and Payments Services Pvt Ltd [2015 (11) TMI 909 - CESTAT NEW DELHI] and Citi Bank [2016 (2) TMI 983 - CESTAT CHENNAI] and of the larger bench in Standard Chartered Bank [2015 (8) TMI 686 - CESTAT DELHI (LB)]. Tribunal has considered the decisions of the co-ordinate benches and that of the larger bench and, in its opinion, found that the decisions of the larger bench have not been considered in proper perspective and that it will follow the decision of the larger bench. This view could ultimately be found in appeal as erroneous in law, but it cannot be considered as indiscipline. The Tribunal can conclude that it will follow the decision of larger bench. Though the words per incuriam have not been specifically used but the reasoning of the Tribunal indicates that it has proceeded on those lines.
There was a direct refusal to follow the decisions of the co-ordinate bench. In light of such a stark refusal, the Division bench found that extraordinary jurisdiction had to be exercised despite the availability of an appeal remedy. We do not find that the case at hand is of such nature as the case of Mercedes Benz India, where writ jurisdiction needs to be exercised, and the appropriate remedy for the Petitioner would be of appeal.
Filing an appeal by itself cannot be considered as prejudice. As regards the prejudice by erroneous finding is concerned if the finding is erroneous and patently contrary to the record, that can be corrected in appeal. It is not that the moment there is an erroneous or incorrect finding, writ jurisdiction has to be exercised. As emphasized in the order passed in Infra Dredge Services Pvt. Limited, totality of the circumstance will have to be considered and not only the stand-alone grounds.
No case is made out for the exercise of writ jurisdiction. Writ Petition is dismissed.
-
2022 (12) TMI 563 - CESTAT MUMBAI
Interest on delayed refund u/s 11BB - Cenvat Credit is in the nature of any duty/tax paid by the appellant or not - Refund of unutilized cenvat credit - export of services - Rule 5 of Cenvat Credit Rules, 2004 - HELD THAT:- the learned Commissioner ought to have followed the law laid down by the Hon'ble Supreme Court in the matter of Ranbaxy Laboratories [2011 (10) TMI 16 - SUPREME COURT] rather than distinguishing it.
Learned Commissioner tried to distinguish the aforesaid judgement passed by the Hon'ble Supreme Court by observing that in the said judgment the Hon'ble Supreme Court has ordered interest on delayed refund as duty paid therein was found refundable under section 11BB ibid, whereas in the instant case appellant was sanctioned refund of accumulated Cenvat Credit due to export under Rule 5 ibid which is not in the nature of any duty/tax paid by the appellant which was subsequently found refundable under section 11B. Therefore, according to learned Commissioner the judgement of Hon'ble Supreme Court shall not be applicable in the instant case.
Learned Commissioner seems to be not aware of the Principle of Judicial Discipline and in particular Article 141 of the Constitution of India, which provides that the decisions of the Hon'ble Supreme Court are binding on all the Courts in India and “all Courts” includes quasi-judicial authorities also, therefore he ought to have followed the law laid by the Hon'ble Supreme Court
-
2022 (12) TMI 556 - SUPREME COURT
Demand of service tax under various heads, including manpower recruitment or supply agency service under reverse charge, programme producer service, sponsorship service, and other services - Extended period of limitation - The Commissioner ruled that the consideration paid to FSE for appearance of VA for a sports tournament is taxable under the definition of "manpower recruitment or supply agency". The Commissioner observed that the source of supply of skilled manpower is outside India and has been received by the Appellant in India. The Commissioner further ruled that any programme made by a programme producer and then offered for sale to different TV channels or broadcasters for relay is a taxable activity. The Commissioner concluded that the transaction made by the Appellant with Zee Telefilms includes element of service and is taxable. - Tribunal confirmed the order of Commissioner
HELD THAT:- An employer-employee relationship exists between the agency and the individual and not between the individual and the person who uses the services of the individual. Such cases were held to be governed by the definition of "manpower recruitment or supply agency" in Section 65(68) and hence liable to service tax. The CBEC circular dated 23 August 2007 deals with a situation where there exists a relationship of employer and employee between the agency which supplies the service and a person whose service is supplied. But it does not postulate that such a relationship must exist for the statutory definition to be attracted. Hence, the fact that there may be no relationship of employment between VA and FSE would not be dispositive for the purposes of the statutory definition in Section 65(68). For the above reasons, we are of the view that the decision of the Tribunal on this aspect of the matter cannot be faulted with.
Programme produce - The Tribunal relied upon its decision in the case of Board of Control for Cricket in India 2014 (9) TMI 598 - CESTAT MUMBAI] - in terms of the contract, BCCI had appointed the producer to exclusively produce the feed for and on behalf of BCCI for each match. This is the distinguishable feature of the decision of the Tribunal in BCCI which is absent in the present case. Therefore, we are of the considered view that the Tribunal was in error in holding that the decision would apply squarely to the facts of the present case. The view of the Tribunal to that extent would have to be and is accordingly reversed.
Extended period of limitation - In paragraph 4.20 of its order, the Tribunal has specifically observed that the present case involves the interpretation of statutory provisions. - We are of the considered view that the Tribunal having come to the conclusion that the issue turned upon an interpretation of the provisions of Section 65(68) and Section 65(86b) of the Finance Act 1994, there was no warrant to allow the invocation of the extended period of limitation and to direct the determination of the penalty following the re-quantification of the demand.
Levy of penalty - there was no warrant for the imposition of the penalty as the dispute in the present case essentially turned on the interpretation of the statutory provisions and their inter play with the circular issued by the CBEC.
Decided partly in favor of assessee.
-
2022 (12) TMI 523 - CALCUTTA HIGH COURT
Constitutional Validity of N/N. 7 of 2008 dated 01.09.2008 enhancing the rate of service tax from 2% to 4% - levy of additional burden of service tax upon the contracts for which the option under Notification No. 32 of 2007, dated 22nd May, 2007 as already been exercised by the appellant - applicability of composition scheme.
Does the scheme contemplate a mode of exercising option and what would be the correct meaning that has to be assigned to the words “shall exercise option in respect of the works contract prior to payment of service tax”?
HELD THAT:- In T. Azhakesan Versus State Tax Officer and Others [2021 (10) TMI 123 - MADRAS HIGH COURT], the Division Bench of the High Court of Madras considered a similar issue, but, arising under the provision of the Tamil Nadu Value Added Tax Act, 2006. The said Act also contained a similar provision stating that the option should be exercised by the dealer prior to payment of tax. Similarly, under the said Act, there was no prescribed form for exercising such option.
In GE T and N India Limited Versus Commissioner of Central Excise and Service Tax, Large Tax Payer Unit, Chennai [2019 (12) TMI 858 - MADRAS HIGH COURT], identical issue was considered and the Division Bench approved the view taken by the tribunal in the case of Vaishno Associates Versus CCE & ST, Jaipur [2018 (3) TMI 417 - CESTAT NEW DELHI] wherein the court considered the composition scheme and pointed out that no format has been prescribed for making/exercising an option nor has it been specified as to whom the option must be addressed, the fact of the paying service at composition rate in the return filed by the service provider is enough indication to show that they have opted for payment under the works contract composition scheme.
The payment of tax under the composition scheme upon notification of the scheme vide a notification no. 32 of 2007 dated 26.05.2007 by filing the return and paying tax at the compounded rate of 2% is sufficient compliance of exercise of option under the scheme and therefore the subject contracts for which tax had been remitted by the appellant at the rate of 2% is permissible and acceptable under law.
Extended period of limitation - HELD THAT:- The disputed period can be divided into two the first of which being from March 2008 to March 2012. For this period, the show cause notice for the periods from March 2008 to March 2011 have all been issued after a long delay as the show cause notices were issued on 17.04.2013. The said show cause notice also covered the period from April 2011 to September 2011 and October 2011 to March 2011 but for such period the show cause notice was within the time permitted. The question would be whether extended period of limitation could have been invoked in the facts and circumstances of this case and courts have held that such extended period of limitation can be invoked only when that there is a deliberate intention to evade payment of tax and it does not empower the department to invoke the extended period on the sole ground of omission - the department invoking the extended period of limitation, for the period indicated above, is thoroughly flawed and illegal.
Penalty u/s 78 of FA - HELD THAT:- The learned advocate submits that the court may consider the case and direct that the penalty should not be levied under Section 78 of the Act. We are not able to accede such a prayer as it is beyond the scope of the prayer sought for in the writ petition nor such contention appears to have been raised in the writ petition. However, we give liberty to the appellant to raise all contentions both on law and facts in the event there is proposal to levy penalty for the aforementioned period.
The appellant has exercised the option prior to 01.03.2008 and therefore would be entitled to the compounded rate of tax at 2% for the relevant period and this cannot extend to the period from April 2012 to March 2013 which the appellant has conceded to pay tax at the enhanced rate along with the interest - Appeal allowed.
-
2022 (12) TMI 475 - SC ORDER
Valuation - inclusion of cost of material - printed material supplied to the students - coaching services - HELD THAT:- Having gone through the findings recorded by the learned Tribunal, more particularly as it has been found that there is no credit availed at all, no interference of this Court is called for. As such, we are in complete agreement with the view taken by the learned Tribunal.
Appeal dismissed.
-
2022 (12) TMI 474 - SC ORDER
Classification of services - works contract services or not - appellants are concessionaire, who have been granted on ‘Build, Operate and Transfer(BOT)’ basis, construction, maintenance on cost recovery basis - HELD THAT:- Delay condoned.
There are no good ground and reason to interfere with the impugned order/judgment and hence, the present appeal is dismissed.
-
2022 (12) TMI 473 - DELHI HIGH COURT
Maintainability of petition - seeking waiver of pre-deposit in the appeal filed by the Petitioner against Order-in-Original No. 30/2022-ST dated 28.01.2022 without insistence of payment of pre-deposit of 7.5% - levy of service tax - whether the petitioner is required to pay service tax on the commission received or the gross amount for the taxi service?
HELD THAT:- The learned counsel appearing for the petitioner states that during the previous two years, the petitioner could hardly generate any revenue; in fact, the petitioner has suffered huge losses and therefore today is not in a position to make the mandatory pre-deposit quantified at Rs.1.45 crores for filing an appeal before the Customs, Excise and Services Tax Appellate Tribunal (CESTAT). The insistence of pre-deposit in this case would under the remedy of appeal, illusory.
Given the mitigating circumstances and the financial condition of the petitioner, this Court considers it apposite to direct that if the petitioner makes the pre-deposit of a sum of Rs.50,00,000/- within a period of two weeks, the petitioner’s appeal in respect of its service tax liability for the period December, 2011 to February, 2015 shall be heard by CESTAT on merits.
Petition disposed off.
-
2022 (12) TMI 472 - KARNATAKA HIGH COURT
CENVAT Credit - inputs/ inputs services used for construction of immovable property - utilization of the same to discharge the service tax liability on output services namely, renting of immovable property service - Board's circular No.98/01/2008 ST dated 04.01.2008 issued vide F.No.345/6/2007 TRU - HELD THAT:- The assessee therein, was in the business of renting immovable properties and the issue involved was whether the assessee therein was entitled for CENVAT credit on the input and input services consumed or utilized in construction of the Commercial Complex. After considering various authorities, the Tribunal has held that the assessee was entitled to CENVAT credit both on inputs and input services utilized for the construction to be utilized as output service being renting of immovable property. It is not in dispute that the said order passed by the CESTAT, Bengaluru has not been challenged by the Revenue.
This appeal does not merit consideration for more than one reason. Firstly, Revenue has accepted the view taken by the Tribunal in M/s. Millennia Realtors. Secondly, assessee is admittedly in the business of renting immovable property. While constructing the immovable properties, assessee would have availed various services and paid input tax. The said building is used by the assessee in its business. Therefore, assessee must be entitled to avail the input services to discharge services on various output services.
Appeal dismissed.
-
2022 (12) TMI 471 - CESTAT NEW DELHI
Invocation of extended period of limitation - Demand of service tax with interest - tri-partite agreement - granting rights or permitting commercial use or exploitation of any event including an event relating to art, entertainment, business, sports or marriage - levy of penalty.
Whether the amount paid by IMGR to ZEEL as termination fee as per tripartite agreement entered into between the appellant, ZEEL and IMGR can be taxed and if such tax has to be paid by the appellant under the category of “permitting commercial use or exploitation of any event service” under section 65 (105) (zzzzr)? - HELD THAT:- It is undisputed the rights were originally granted to ZEEL at which time they were not taxable. Had ZEEL continued to use the rights for the full 10 years no tax would have been payable. Had an agreement been reached whereby the rights were returned by ZEEL to the appellant for a consideration that could have been a consideration for termination of the original contract. Thereafter, had the appellant sold the rights to IMGR or to any other entities, it would have been taxable under section 65 (105) (zzzzr). The tripartite agreement which has been entered into has effectively circumvented this situation by transferring the rights from ZEEL to IMGR directly with the concurrence of the appellant for a consideration known as the termination fee paid by IMGR to ZEEL. The appellant has not rendered any service in this agreement, but has concurred to the agreement whereby the rights were transferred from ZEEL to IMGR.
The amount paid by IMGR to ZEEL on behalf of the appellant cannot be considered as an amount paid to the appellant for any service - Demand set aside - appeal allowed.
-
2022 (12) TMI 470 - CESTAT AHMEDABAD
Rejection of refund claim of amount paid under protest - time limitation - applicability of second proviso to Section 11B of CEA - HELD THAT:- It is not in dispute that when the amount was paid during investigation no formal protest was launched at the time of the said deposit. It is also not in dispute that duty was otherwise leviable and it was not a tax collected under mistake of law or unconstitutionally. It is also not in dispute that refund claim has been filed beyond the period of limitation prescribed under Section 11B.
In the case of THE KISAN COOPERATIVE SUGAR FACTORY LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE [2017 (11) TMI 1486 - ALLAHABAD HIGH COURT] relied by appellant there is clear finding of the tribunal that the duty has been paid under protest and therefore, the facts are different from the instant case. In the instant case there is no finding that duty has been paid under protest.
Appeal dismissed.
-
2022 (12) TMI 469 - CESTAT NEW DELHI
Refund of unutilized input service credit of input services used by SGIPL to export telecommunication services - intermediary services or not - place of provision of services - intermediary services - HELD THAT:- An intermediary is a person who arranges or facilitates provision of the main service between two or more persons. SGIPL is not involved in the arrangement or facilitation of the supply of service. In fact, it has entered into two Agreements; one with SingTel and the other with the Indian telecommunication service providers. It needs to be noted that SingTel had entered into Agreements with end customers for providing telecommunication services and it is for the provision of this telecommunication services that SingTel entered into an Agreement with SGIPL on a principal to principal basis - The telecommunication service provided by SGIPL qualify for export since it is providing telecommunication services to SingTel which is outside India and is receiving convertible foreign exchange for such services. SGIPL is not a privy to the Agreement entered into between SingTel and its end customers. Merely because SGIPL is charging handling fee on SingTel would not mean it is an intermediary.
The judgment of the Delhi High Court in VERIZON COMMUNICATION INDIA PVT. LTD. VERSUS ASSISTANT COMMISSIONER, SERVICE TAX, DELHI III, DIVISION-XIV & ANR. [2017 (9) TMI 632 - DELHI HIGH COURT] squarely applies to the facts of the present case, where it was held that The denial of the refund of the Cenvat credit to Verizon India and the raising of a demand of service tax on the consideration received by it for export of telecommunication services to Verizon US are not sustainable in law - The Commissioner (Appeals) correctly appreciated the position in the impugned orders in holding that SGIPL was not intermediary and had provided export of service to SingTel.
The decision of the Tribunal in COMMISSIONER OF SERVICE TAX, CENTRAL EXCISE VERSUS LAMHAS SATELLITE SERVICES LTD. (VICE-VERSA) [2019 (6) TMI 271 - CESTAT MUMBAI] was in the context of the agreement between Lamhas Satellite Services and Globecast Asia PTE Ltd. The appellant acted only to mediate the provision of service by the channel distribution partner to GlobeCast and the service was not provided by the appellant to GlobeCast. It is in such circumstances that the Tribunal observed that the service would an intermediary service. The decision of the Delhi High Court in Verizon India was distinguished for the reason that the agreement was entirely different - The said decision of the Tribunal in Lamhas Satellite Services would not, therefore, help the revenue and it is the judgment of the Delhi High Court in Verizon India that would apply to the facts of these appeals.
Appeal dismissed - decided against Revenue.
-
2022 (12) TMI 468 - CESTAT AHMEDABAD
Job work - Manpower Recruitment and Supply Agency Services or not - arrangement with the farmers for harvesting and transportation of sugarcane to sugar mills - appellants while paying the cost of sugarcane to the farmers they deduct the expenses of harvesting and transportation of sugarcane - HELD THAT:- The fact is not in dispute that the appellants have no arrangement for supply of manpower for harvesting and transportation of sugarcane for supply to sugar mills. It is also the fact that charges were calculated on per ton basis therefore, the number of manpower, man-days or man-hours is not relevant for carrying out the activities of harvesting, transportation etc. The arrangement is job specific and not the manpower specific.
Considering the various decisions referred including judgment of Hon’ble Bombay High Court in SATARA SAHAKARI SHETU AUDYOGIK OOS TODANI VAHTOOK SOCIETY VERSUS CCE., KOLHAPUR [2014 (12) TMI 42 - CESTAT MUMBAI], the issue is no more res-integra and the demand under Manpower Recruitment and Supply Agency Services is not sustainable.
Appeal allowed - decided in favor of appellant.
........
|
