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Service Tax - Case Laws
Showing 21 to 40 of 85 Records
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2023 (1) TMI 992
Adjustment of excess service tax paid - ‘succeeding month or quarter’ used in Rule 6(4A) of Service Tax Rules, 1994 - whether the said term means immediate succeeding month/quarter or it can be anytime even after couple of years? - whether the assessee can claim any adjustment without complying with the conditions contained in Rule 6(4B) ibid? - HELD THAT:- A perusal of the aforesaid Rule 6(4A) would make it clear that the word used is succeeding month or quarter as the case may be. Succeeding month denotes the month, which succeeds the current month, i.e., the next month and dictionary meaning of succeeding means immediately following. The aforesaid clause (4A) do not uses the word ‘any’ before the words ‘succeeding month or quarter’ as the case may be. Rule 6(4B) provides that the adjustment shall be subject to this condition that the excess amount paid was not on account of taxability.
As per the law laid down by the Hon’ble Supreme Court in catena of decisions, in a taxing statute, it is the plain language of the provision that has to be preferred, where language is plain, unambiguous and is capable of determining a defined meaning. Purposive interpretation can be given only when there is an ambiguity in the statutory provision, which is not found in the present case. It cannot be said that this interpretation lead to absurdity as the procedure is prescribed in the statute itself.
While interpreting the taxing statute, the importance has to be given to the clear expression used therein and no intent can be examined in case of any unambiguity in the wordings of the Notification. There is no ambiguity in the wording of Rule 6(4A) ibid.
It is not that the appellant is not aware about the filing of refund claim of excess payment as the learned Commissioner has observed that in the year 2011 the appellant has applied for the refund of the excess payment made which was sanctioned by the Adjudicating Authority - thus, the filing of refund claim is not mandatory but then the adjustment under Rule 6(4A) ibid has to be done within a reasonable period if not in the immediate succeeding month or quarter.
Article 265 of the Constitution of India - HELD THAT:- The said Article provides that no tax shall be levied or collected except by authority of law. Here levy of tax is not disputed, what is disputed is the alleged excess payment by the Appellant in this era of self-assessment and since no documentary evidence has been placed on record except the arithmetical calculation, therefore it cannot be concluded that any extra payment of tax has been made by the Appellant.
There are no infirmity in the impugned order - appeal dismissed.
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2023 (1) TMI 991
Denial of benefit of Notification No. 12/03-ST dated 20.06.2003 - composite contract service - Inclusion of cost of material and service provider or not - HELD THAT:- Since the appellant have declared a material cost and the same was accepted by the service recipient, no doubt can be raised that the material cost declared in the invoice is incorrect unless it is proved contrary by the department. It is also not in dispute that the appellant have provided the composite contract to the service recipient which includes service and material. Therefore, the appellant is entitled for Notification No. 12/03-ST. The appellant have also argued that since they have provided the composite contract i.e. with material and they have discharged the VAT, their service is classifiable under works contract service.
Thus, it can be seen that as against the abatement of 67% available under Notification No. 15/04-ST and 01/06-ST, the appellant have taken the abatement ranging from 30% to 48%. Thus, despite the availability of abatement as per the above notification, the appellant have paid the service tax on much higher value, for this reason also the demand is absolutely unsustainable.
Appeal allowed.
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2023 (1) TMI 990
Levy of Service tax - Commercial Training or Coaching service - imparting educational programmes in the areas of finance, banking, insurance, accounting, law, management, information technology, arts, commerce, education, science and technology, at bachelor's and master's level on full time campus and distance learning modes - HELD THAT:- The issue in hand has already been considered by this Tribunal at various benches namely, Hyderabad, Delhi and Ahmadabad.
Reliance placed in the order of this Tribunal of Ahmadabad Bench in the appellant’s own branch of Vadodara, ICFAI BRANCH VADODARA VERSUS CCE & ST-VADODARA-I [2018 (8) TMI 556 - CESTAT AHMEDABAD] where it was held that There can not be any doubt as to the fact that the students successfully completing the educational programmes of the appellants are being selected for employment by various organisations, whereas the explanation as to what is vocational training institute indicates that the said exemption can be extended to any vocational training institute which imparts skills to enable the trainee to seek employment or undertake self-employment directly after such training or coaching.
Appeal allowed.
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2023 (1) TMI 989
Maintainability of appeal - non-compliance with Section 35F - Short payment of service tax - works contract service - HELD THAT:- There is controversy with regard to service of the show cause notice on the appellant-assessee. Further, as the Commissioner (Appeals) have dismissed the appeal for want of compliance of Section 35F, this ground could not be decided. Accordingly, this appeal is allowed by way of remand. The matter is remanded to the file of the Original Adjudicating Authority to pass a reasoned order, in accordance with law, after hearing the appellant-assessee.
Appeal allowed by way of remand.
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2023 (1) TMI 942
Legislative disbarment of levy of tax on goods transport agency service - clearing and forwarding agency service - inclusion of the value thereof in support service of business and commerce - Amalgamation of two services - it was held that The two services are rendered independently even if the transactions of the appellant are with the same recipient and, therefore, is not ‘clearing and forwarding agency’ service. The treatment of ‘goods transport agency’ provided after 1st July 2012 continues to remain unchanged and the substitution of ‘support service of business and commerce’ or of ‘clearing and forwarding agent’ service with the omnibus ‘service’ has not altered the delineation to offer any support to the finding in the two impugned orders.
HELD THAT:- Issue notice, returnable in four weeks.
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2023 (1) TMI 941
Exemption from service tax - works contract service - applicability of Clause-14 (a) of Mega Exemption Notification No.25/2012 dated 20.06.2012 issued by the Government of India - HELD THAT:- As per Clause-14.3 of the Circular under No.1053/02/2017-CX dated 10.03.2017, at least three opportunities of personal hearing should be granted by the authorities before the final adjudication of a matter. In the present case, only two opportunities were given o n 16.09.2022 and 29.09.2022. Even after communication of the order dated 21.09.2022 via email on 18.10.2022, the respondent No.3 did not provide the third opportunity to the petitioner in an illegal, arbitrary and high handed manner - the impugned order dated 16.11.2022 passed by the respondent No.3, apart from being illegal, arbitrary and without jurisdiction, is apparently perverse and fraught with patent illegality since it was conclusively decided by the respondent No.2 after consulting the relevant laws that the services rendered by the petitioner during the financial year 2016-17 are exempted from the purview of Service Tax, particularly in view of the Clause-14(a) of the Central Government’s Mega Exemption Notification No.25/2012 dated 20.06.2012. Hence, the impugned order dated 16.11.2022 as well as the order dated 25.03.2022 are liable to be set aside and quashed.
The respondent No.3 while passing the impugned order dated 16.11.2022 has acted without any jurisdiction in view of the admitted position of fact that whatever contractual job was executed by the petitioner during the financial year 2016-17 was under the N.F. Railways within the State of Assam and under the territorial jurisdiction of the respondent No.2 and there was nothing on record to even remotely suggest that any work was executed by the petitioner within the State of Tripura i.e. within the territorial jurisdiction of the respondent No.3.
The impugned demand stands set aside since, a non-speaking order has been passed without dealing with regard to the exemption clauses and the notification issued thereunder - the respondents shall consider the explanation in the light of the exemption notification No.25/2012 and then pass a speaking order after giving an opportunity of personal hearing. It is further made clear that till a decision is taken, no adverse action shall be initiated against the petitioner.
Petition allowed by way of remand.
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2023 (1) TMI 940
Rejection of Application for condoning the delay in filing an appeal - sale of space or time for advertisement - HELD THAT:- The Petitioner stated that discussions & deliberation were made in the Cabinet on the representations of the Railways for exemption from service tax liability and as result of the same, an amendment has been introduced in the Act of 1994 by incorporating section 99 in the Finance Bill-2013. This information was circulated to all the Zonal General Managers of the Indian Railway by the Ministry of Railway through Railway Board by Circular dated 5 March 2013. The Petitioner has stated that thereafter, the Respondents also did not pursue the demand raised by them under the show cause notice presuming that exemption is granted to the Railways for the period in question. When the Petitioner received the demand, the Petitioner informed to the Assistant Commissioner about the amendment and requested to waive the demand with retrospective effect as there was no dues in view of the amendment.
The Petitioner has thus stated that the delay is not deliberate but in view of the fact that since the Railways bona fide believed that the liability of service tax for the period from 2006 to 2009 which is the subject matter of demand stood wiped off.
Further, either allowing the application for condonation of delay or rejecting the same were not the only options available with the Tribunal. Equities could have been balanced by imposing suitable conditions, which option has not been considered by the Tribunal at all - the equities in the case can be balanced by granting application for condonation of delay, subject to the Petitioner depositing 25% of the principal amount.
Petition allowed.
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2023 (1) TMI 939
Sabka Vishwas (Legacy Dispute Resolution) Scheme - declaration of the petitioners rejected by not issuing Discharge Certificate by the Designated Committee under SVLDRS - rejection on the ground that the petitioners did not make payment within the stipulated time as per Rule 7 of the Rules - HELD THAT:- On perusal of the bank statement furnished by the petitioners, it clearly shows that amount of 1,51,15,378/- was debited from the account of the petitioners on 30.06.2020. Therefore, for all intent and purpose once bank account of the petitioners is debited, it amounts to making payment by the petitioners. Even the payment uploaded status provided by the ICICI bank of the petitioners shows that payment was uploaded by the bank on 30.06.2020 at 18:28 hours and 20:23 hours and file status also shows that the same was processed. Therefore, it cannot be said that the petitioners have failed to make payment of amount of Rs. 1,51,15,378/- as determined by the Designated Committee as per Rule 7 of the Rules. Therefore, the petitioners should have been granted benefit of the SVLDRS by the respondent authorities by issuing Discharge Certificate.
The petitioners have filed Form SVLDRS-1 to avail the benefit of the scheme as per section 126 of the Finance (No.2) Act, 2019 with regard to the tax dues determined under section 123 to avail the relief as per section 124 of the Act. The Designated Committee after verification of the declaration under section 126(1) issued a statement under section 127 in Form SVLDRS-3 on 16.03.2020 determining the amount of tax payable by the petitioners of Rs. 1,51,15,378/-. Thus the petitioners were found eligible for the benefit of the scheme. Therefore, the petitioners were required to make the payment of Rs. 1,51,15,378/- within 30 days i.e on or before 16.04.2020 which was extended due to Covid-19 pandemic by the Government upto 30.06.2020.
From the record, therefore, it emerges that the petitioners have paid the amount from its bank account on 30.06.2020. The petitioners are not at fault for amount not transferred in the account of the Government by the bank on the same day on 30.06.2020. The stand taken by the respondent authorities is therefore, not tenable as once the amount has been debited from the bank account of the petitioners on 30.06.2020, for all intent and purpose, it cannot be said that the petitioners have failed to deposit the amount as required under Rule 7 of the Rules.
The respondent authorities ought to have issued the Discharge Certificate to the petitioners without raising any dispute - Petition allowed.
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2023 (1) TMI 938
Levy of service tax - Business Support Service or not - Cirket Player - service tax levied under this head on the ground that Appellant wear the team clothing which bears the brands/ marks of various sponsors and they are also required to participate in promotional /public events of the franchisee thus they are providing Business Support Service - existence of employer – employee relationship or not - HELD THAT:- Though in the impugned order the appellants were made liable to pay service tax under the business support service but as, no specific entry as mention in the definition of “Business Support service” has been shown to be applicable to levy service tax. It is not appearing from the finding of the impugned order as how the activity of appellant covered under the above category of services. The apparel that they had to wear was team clothing, which bears the brand/marks of various sponsors. The Appellants was not providing any service as an independent individual. It cannot be said that the appellants was rendering any services which could be classified as business support services. Appellants are not promoting any particular brand or product or service and also not taking part in any business activity of promoting the sale of any product or service of any entity. The entry for “Business Support Service” envisages taxing activities which are needed for doing business activities almost in the nature of outsourcing of activities connected with business. The definition of “Business Support Service” does not specifically cover the activity done by Appellant.
Further, on perusal of the agreement title “Indian Premiere League Playing Contract” it clearly emerges that it is the appellant who is recognized as player first. Clause -2 of this agreement even makes it all the more clear that the franchisee is engaging players as professional cricketer who shall be employed by the franchisee. From this, it is abundantly clear that a person who has earned the reputation and recognition as a player is employed by the franchisee and it is not the other way round - the employer – employee relationship cannot be disputed and therefore the decisions relied upon by the Learned Counsel are squarely applicable to the present case.
Reliance can be placed in the case of CCE & ST, CHENNAI VERSUS L. BALAJI, S. BADRINATH, DINESH KARTHICK, MURALI VIJAY, VIDYUT SIVARAMAKRISHNAN, ANIRUDA SRIKKANTH, SURESH KUMAR, YO MAHESH, HEMANG BADANI, ASHWIN R,C. GANAPATHY, ARUN KARTHIK KB, KAUSHIK GANDHI, PALANI AMARNATH C, ABHINAV MUKUND (VICE-VERSA) [2019 (5) TMI 377 - CESTAT CHENNAI] where it was held that A set of services alleged to be falling under BSS by the Revenue is also held to be covered under another set of services namely Brand Promotion Services. Admittedly, the brand promotion service was introduced w.e.f. 01.07.2010 and as observed as having been argued by the Ld. DR in paragraph-6 above of this order, cannot be made use to fit into another service ie., the categorization of the same set of activities under two different services for two different periods is not permissible. Having taxed under BSS, the Revenue should not have changed its stands for a different period when there is no change in the nature of services alleged.
Reliance also placed in the case of C.E,C & CGT-DELHI VERSUS PIYUSH CHAWLA [2018 (7) TMI 1009 - CESTAT NEW DELHI] where it was held that It is settled legal position that services provided by an employee, for the activities undertaken by the employer, for and under the instruction of the employer, cannot be termed as service provided by the employee.
Reliance also placed in the case of SHRI KARN SHARMA VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., MEERUT-L [2018 (4) TMI 111 - CESTAT ALLAHABAD] where it was held that Hon’ble Calcutta High Court in the case of Shri Sourav Ganguly Vs Union of India and Others [2016 (7) TMI 237 - CALCUTTA HIGH COURT] has dealt with an identical issue and held that It was not the intention of the legislature that any and every kind of activity which can loosely be termed as ‘Business’ would attract service tax. It being a taxing provision, the same must be construed strictly and any benefit of doubt in the matter of interpretation of the provision must go in favor of the assessee.
Thus, the Appellants are not liable to service tax under the Business Support Service - the demands of service tax are not sustainable against the appellants - appeal allowed.
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2023 (1) TMI 937
Non-payment of service tax - advances received from clients in relation to the services to be provided - irregular availment of CENVAT credit of in respect of capital goods and utilization thereof - extended period of limitation.
Whether the amount of Rs. 6,72,23,160/- received by the appellant from M/s. Indus Towers Ltd. should be treated as an advance, on which service tax is to be levied as contented by the department, or it should be treated as a security deposit which is not susceptible to levy of service tax, as contented by the appellant? - HELD THAT:- Paragraph 6.7 of the Agreement provides that the appellant shall, at its own cost, install, operate and maintain the Hybrid Solar Solution for a period of 10 years for which M/s Indus Tower Ltd. shall 5. Service Tax Appeal No. 52426 of 2019 decided on 22.10.2021 pay an advance in respect of each of the sites which amount shall be calculated as equivalent of two months estimated fee and such advance shall be liable for adjustment with the fees payable for the last two months of the term. The Agreement, therefore, specifically refers to the amount as an advance which would be adjusted with the fees payable for the last two months. There is nothing in the Agreement which may even remotely suggest that the said amount can be treated as a security deposit. This is what has also been held by the Commissioner.
Whether the appellant had correctly availed the CENVAT credit on goods which according to the appellant are capital goods? - HELD THAT:- This issue has been decided in favour of the appellant by the Tribunal in PRINCIPAL COMMISSIONER, CGST DELHI SOUTH COMMISSIONERATE VERSUS M/S. AST TELECOM SOLAR (P) LTD. [2021 (11) TMI 244 - CESTAT NEW DELHI] where it was held that an output service provider under Rule 3 of CCR is entitled to take cenvat credit on all such goods without any distinction as to inputs or capital goods for rendering taxable output service.
In the present case, items like MS angles, GI sheets, Bolts, Shelter Cabins, Structures of iron & steel, MS nuts, fabricated and galvanized structures, have gone into the making of solar system, through which the appellant rendered taxable output service. The appellant, therefore, has rightly availed CENVAT credit on MS angles, GI sheets, Bolts, Shelter Cabins, Structures of iron & steel, MS nuts, fabricated and galvanized structures - the Tribunal in AST Telecom Solar entitled to avail CENVAT credit and the Commissioner was not justified in disallowing the credit.
Invocation of the extended period of limitation in the show cause notice - HELD THAT:- The Commissioner has recorded a finding that though the Agreement referred to the amount as advance but still the appellant made an attempt to treat it as a security deposit, which clearly shows that there was suppression of facts with an intent to evade payment of tax - there is no error in the finding recorded by the Commissioner in this regard, as indeed the appellant did try to evade payment of service tax by treating the amount as a security deposit when in fact it was clearly an advance, which fact was very specifically mentioned in the Agreement. The intention to evade payment of service tax by suppression of material facts is writ large.
The denial of CENVAT credit by the impugned order is set aside but the rest of the order of the Commissioner is maintained - Appeal allowed in part.
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2023 (1) TMI 936
Levy of Service Tax - Business Auxiliary Service - providing service to M/s Vodaphone Essar Digilink Ltd. as their franchisee for sale/distribution and marketing of the SIM cards and recharge coupons - demand of service tax alongwith the penalties - Extended period of limitation.
Whether extended period of limitation has been correctly invoked in the show cause when on an identical issue a show cause notice was earlier issued to the appellant by the Department? - HELD THAT:- As per Section 73 of the Finance Act, 1994 demand invoking the extended period of limitation can be issued where service tax was not paid by reason of (a) fraud or (b) collusion (c) wilful mis-statement (d) suppression of facts or (e) violation of act or rules with an intent to evade payment of duty. It is a well settled legal principle that “suppression” does not mean mere omission but a positive act of suppressing information with an intent to evade payment of service tax. It is undisputed that in this case, the Department was fully aware of the activities of the appellant and had issued a show cause notice on 26.04.2011. Therefore, the Department cannot allege that it was not aware of the activities of the appellant and that the appellant had suppressed any information - the entire demand in this case is beyond the normal period of limitation.
According to the appellant it is trading in SIM cards and recharge coupons and, is not rendering any service to the principal. It is buying the SIM cards from it and selling them to others. Such arrangements are made by various telecom operators whereby they appoint distributors to buy and sell their SIM cards. The case of the Revenue is that since the Supreme Court has held in the case of IDEA MOBILE COMMUNICATION LTD. VERSUS CCE. & C., COCHIN [2011 (8) TMI 3 - SUPREME COURT], that SIM card is not goods and its value is includible to the value of the service provided by the telecom operator, buying and selling of SIM cards can be considered as rendering business auxiliary service to the principal - it is found that this Tribunal has consistently held that buying and selling of SIM cards and recharge coupons does not amount to providing business auxiliary service to the principal in several cases.
In the case of M/S. DEVANGI COMMUNICATIONS, M/S. BOOPALAM ELECTRONICS, INDEPENDENT ASSOCIATES, M/S. SOMAYA MARKETING, M/S. VINAYAKA AGENCIES, M/S. MAGNUM VISION, M/S. BHOOPALAM MARKETING SERVICES PVT. LTD. VERSUS THE COMMISSIONER OF SERVICE TAX, & THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-II AND CCE VERSUS SHRI V.M. NAYAK BENNE [2018 (8) TMI 960 - CESTAT BANGALORE], CESTAT has continuously held that telecom operators discharging service tax on the whole MRP value of SIM cards and recharge cards there could be no further service tax liability on the persons who are dealing / selling the said SIM cards or recharge cards to the public.
The impugned order cannot be sustained either on merits or on the limitation - Appeal allowed.
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2023 (1) TMI 935
Short payment/nonpayment of service tax under RCM - Tour Operator Services - Event Management Service - Business Auxiliary Service - Business Support Services - extended period of limitation - revenue neutrality - Imposition of penalty under Section 78 and 78 A on the Director - HELD THAT:- The appellant is entitled to and have rightly taken cenvat credit on the invoices addressed to the Bangalore office, and the invoices in the name of the Director, due to business exigency. Further, admittedly the appellant have received services in question and the payments have been made for such services by the appellant/assessee only. Further, the service is qualified as input service. Accordingly, the cenvat credit of Rs.3,01,045/- is allowed.
Disallowance alleging short payment of service tax - short payment is due to non-recognition by Revenue of the ST-3 Return for the period April to September, 2015, which was filed manually - HELD THAT:- The ground has been allowed by way of remand for re-quantification of the demand after allowing the abatement. So far the adjustment of tax is concerned, the order is modified to the extent that the appellant shall be entitled for cenvat credit as well as cash. The Adjudicating Authority shall verify the payments made through invoices by the appellant and allow the credit after verifying the same.
Disallowance of Rs.12,27,087/- - amount relates to import of package software, which are goods, as defined and has been explained by the Revenue - HELD THAT:- Service tax of Rs.2,150/- in respect of receipt of package software from INVATOMARKET is not taxable being goods. Further, the services received from Cloudinary Ltd. and Amazon Web Services involving service tax of Rs.1,16,063/- and Rs.3,67,045/- are not liable to be taxed as the services have been provided in the nature of immovable property as the server has been located outside India. Accordingly, the demand of Rs.4,85,258/- being not taxable to service tax is set aside - So far the balance demand is concerned of Rs.12,27,087 – 4,85,769 = Rs.7,41,821/- is concerned, it is found that the appellant have maintained proper books of accounts and transactions were duly reflected in books of accounts and proper vouchers were maintained. Further, situation is wholly Revenue neutral as the appellant was entitled to cenvat credit on the same. Further, admittedly, the appellant have discharged their service tax liability on the taxable services provided by them. Accordingly, the balance demand is also set aside on the ground of Revenue neutrality.
Time Limitation - HELD THAT:- The appellants have maintained proper records and earlier also, they were subjected to audit in the month of Feb. – March, 2016. In this view of the matter, it is held that the demand upto the period October, 2015 is time barred and extended period of limitation is not available.
Imposition of penalty under Section 78 and 78 A on the Director - HELD THAT:- The show cause notice has been issued by way of interpretation and/or change of opinion. The appellant company was set up in the year 2010-2011 and have been availing similar credits and filing ST-3 Returns accordingly from year to year, and in the past, never such dispute was raised by Revenue till the period 31.03.2014. Hence, the show cause notice has been issued by way of change of opinion or change of interpretation at the end of the Revenue - the benefit of extended period of limitation is not available to Revenue. The demand is confirmed only for the normal period. Accordingly, penalties under Section 78 and 78 A (on the Directors) are set aside. Penalty under Rule 15(3) of CCR is also set aside.
Appeal disposed off.
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2023 (1) TMI 934
Levy of service tax - business of extraction and selling of coal from open cast mines - declared service or not - amount received by the appellant towards penalty, earnest money deposit forfeiture and liquidated damages - whether this would amount to consideration “for tolerating an act” on the part of the buyers of coal/contractors, for which service tax would be levied under section 66 E(e) of the Finance Act? - period of dispute in the present appeal is from July 2012 to March 2016.
HELD THAT:- Section 65B (44) defines ‘service’to mean any activity carried out by a person for another person for consideration, and includes a declared service. Under section 66E (e), a declared service shall constitute agreeing to the obligation to refrain from an act, or to tolerate an act or situation, or to do an act. Section 66 B provides that service tax shall be levied at the rate of 12 per cent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. Section 66D contains a negative list of services, while section 66E contains a list of declared services.
A service conceived in an agreement where one person, for a consideration, agrees to an obligation to refrain from an act, would be a ‘declared service’ under section 66E(e) read with section 65B (44) and would be taxable under section 68 at the rate specified in section 66B. Likewise, there can be services conceived in agreements in relation to the other two activities referred to in section 66E(e).
It would also be pertinent to refer to the Circular dated 03.08.2022 issued by the Department of Revenue regarding applicability of goods and service tax on liquidated damages, compensation and penalty arising out of breach of contract in the context of ‘agreeing to the obligation to refrain from an act or to tolerate an act or a situation, or to do an act’ - This Circular emphasizes that there has to be an express or implied agreement to do or abstain from doing something against payment of consideration for a taxable supply to exist and such an act or a situation cannot be imagined or presumed to exist merely because there is a flow of money from one party to another.
Appeal allowed.
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2023 (1) TMI 933
Levy of Service tax - deposit insurance service - whether the banks can avail credit of the service tax paid by the banks for the service provided by the Deposit Insurance Corporation? - HELD THAT:- A Division Bench of the Tribunal in M/S. INDIAN OVERSEAS BANK AND SHRI S. CHOCKALINGAM VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, CHENNAI [2022 (6) TMI 539 - CESTAT CHENNAI] followed the decision rendered by the Larger Bench in M/S. SOUTH INDIAN BANK VERSUS THE COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX-CALICUT [2020 (6) TMI 278 - CESTAT BANGALORE] and held that credit of the service tax paid on premium paid to DICGC is eligible.
Appeal allowed.
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2023 (1) TMI 932
Extended period of limitation - Classification of services - Clearing and Forwarding Agent services or not - working as a consignment agent of various oil manufacturers and had been receiving commission for such services - demand alongwith interest and penalties - HELD THAT:- The period of dispute is 2006-2007 to 2008-2009 and the show cause notice was issued on 12.04.2011. During the relevant period, the normal period of limitation was one year. The show cause notice was issued clearly beyond the period of one year and the proviso to section 73 (1) was involved - As may be seen, the demand could only be raised within a period of one year from the date unless the short payment of service tax was by reasons of (a) fraud or (b) collusion or (c) wilful mis-statement or (d) suppression of facts or (e) contravention of any of the provisions of Chapter V of the Finance Act or the rules made thereunder with intent to evade payment of service tax.
The detection of any escapement of service tax during audit is not a ground on which extended period of limitation as per section 73. Neither does the fact that the audit was conducted prove that the appellant suppressed, let alone willfully suppressed taxable services. On this ground itself, the demand invoking the extended period of limitation needs to be set aside.
As may be seen, if the assessee fails to furnish the returns or having made a return fails to assess the tax in accordance with the provisions of law, the Central Excise officer may require the assessee to produce such accounts, documents or other evidence as he may deem necessary and determine the same payable by the assessee or refundable to the assessee on the basis of such assessments. This is the responsibility of the Jurisdictional Superintendent of Central Excise with whom the return is filed. In this case, the entire basis on which the audit raised the objection was in the books of accounts and documents of the appellant - If the audit detected escapement of service tax, it does not establish, in the factual matrix of this case, that the assessee has indulged in fraud or collusion or wilful mis-statement or suppression of facts or violation of legal praising with an intent to evade payment of service tax. It only establishes that the officer tasked with the best judgment assessment has not done his job. This cannot be the ground on which extended period of limitation can be invoked.
The entire demand is time barred - Appeal allowed.
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2023 (1) TMI 918
Short payment of service tax - Renting of Immovable Property Services - clubbing of amount received by individual owner (39 individual owners) for renting of their immovable property - HELD THAT:- The rented property are owned by 39 individual in their name individually and separately and they had entered into lease agreement with the State Bank of India to provide their individual property collectively to the Bank through single lease agreement. The Appellants also placed on records a copy of Lease deed signed by each individual owner, copies of Municipal Tax Bills issued in the name of each owner separately.
It is also found that in the present matter individual owner received the rent separately and independently. As per the payment terms, Bank paid different amount of rent to individuals as per their property. Therefore irrespective of associations of the property, the important aspect is that who are the parties in the agreement and who have received the payment on account of renting of immovable property and who is the service provider. The amount received by individual owner for renting of their immovable property cannot be clubbed for the purpose of service tax demand. Therefore, the demand is apparently not sustainable.
It is very much brought out by the documents that the appellant is not the absolute owner of the rented property. The lease deed as well as the related documents shows that the property is owned by the individual owners and it is not disputed that the income by way of rent is received by individual owners separately and reflected in their income-tax returns separately. When the property is not owned by the appellant and they have not received the rent, the demand of service tax raised on the appellants alone, therefore, cannot be sustained.
Appeal allowed.
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2023 (1) TMI 917
Refund claim - rejection on the ground that balance in the CENVAT register should not be taken into consideration for the purpose of grant of refund benefit and that certain input services were not considered for refund inasmuch as those services have no nexus with the output services provided by the appellant - HELD THAT:- The CBE&C vide Circular No. 120/01/2010 dated 19.01.2010 has clarified that the closing balance of the previous quarter can be considered for utilization towards export as opening balance for the subsequent quarter.
Establishment of nexus between the input services and the export of services - HELD THAT:- The Department has not initiated any proceedings for recovery of the irregular credit of input services under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. Since availment of CENVAT credit has not been questioned at the material time, subsequent claim of refund under Rule 5 on fulfillment of conditions laid down therein cannot be questioned by the Department at a later stage for denying the refund benefit.
The issue arising out of the present dispute is no more res integra in view of the decisions of the Tribunal in the case of NESS TECHNOLOGIES (INDIA) PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX DIVISIONV, MUMBAI [2015 (11) TMI 53 - CESTAT MUMBAI], ACCELEYA KALE SOLUTIONS LTD. VERSUS COMMISSIONER, CGST, THANE [2018 (7) TMI 1217 - CESTAT MUMBAI] passed in the case of M/S. TPG CAPITAL INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST, MUMBAI. [2019 (9) TMI 1592 - CESTAT MUMBAI] passed in the case of M/S M. NET PARTNER TECHNOLOGIES PVT. LTD. VERSUS COMMISSIONER OF C.G. ST, MUMBAI EAST [2020 (1) TMI 73 - CESTAT MUMBAI]. The ratio laid down in the said orders of the Tribunal is to the effect that while granting the refund benefit under Rule 5 ibid read with the notification issued thereunder, the Department cannot object to such claim of the assessee on the ground that there was no nexus between the input services and exportation of the output service.
There are no merits in the impugned order, insofar as the Commissioner (Appeals) has denied the refund benefit to the appellant - appeal allowed.
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2023 (1) TMI 807
Exemption from Service Tax - works contract service other than commercial nature to the Government, local bodies, statutory authorities, etc. - contention of the petitioner is that the service tax was exempted for the service rendered to the Government for public utility by notification No.25 of 2012 by the Central Government - HELD THAT:- The Honourable Division Bench, in M/S. RAJU CONSTRUCTION, [2022 (12) TMI 1336 - MADRAS HIGH COURT], dismissed the said batch of writ petitions with certain observations - it was held that Services provided by these petitioners were “declared services”. Thus, the services provided by these petitioners would have been liable tax at 12% on the taxable value and later at 14% vide Notification No.14/2015-ST, dated 19.05.2015 with effect from 01.06.2015 but for the exemption vide Entry 12(a), (c) & (f) to Mega Exemption Notification No.25/2012-ST, dated 20.06.2012 - services provided by these petitioners were exempted from payment of service tax vide Entry 12(a), (c) & (f) to the Mega Exemption Notification No.25/2012-ST dated 20.06.2012.
Writ petition is dismissed.
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2023 (1) TMI 806
CENVAT Credit - demand raised on the difference of Cenvat credit balance shown as of June, 2017, in their ST-3 returns and the actual closing balance - claim of the appellant is that certain Cenvat credit was left to be shown in ST-3 returns for the month of June, 2017 - whether the credit claimed by the appellant for Rs. 31,67,294/- is correct or otherwise? - HELD THAT:- On perusal of the original order as well as other documents, it is found that appellant have submitted statement, wherein complete details was given about the Cenvatable documents. It is also observed that the balance of Cenvat Credit considering the credit of Rs. 31,67,294/- was also declared in the books of accounts by the appellant. This evidence cannot be brushed aside on the presumption that the appellant might have taken the credit earlier unless it is proved by the revenue.
Therefore, the detail submitted by the appellant along with copies of invoices no doubt can be raised that the appellant were entitled for the Cenvat credit of Rs. 31,67,294/- on consideration of this credit the balance remains is only Rs. 37,321/- which has been paid along with interest, with this payment there is no demand exist.
The appellant are entitled for the Cenvat credit of Rs. 31,67,294/- - the demand raised in the impugned order except the demand of Rs. 37,321/- , does not sustain - appeal allowed - decided in favor of appellant.
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2023 (1) TMI 805
Condonation of delay in filing appeal - whether the Appeal was field beyond the statutory period of 60(sixty) days, but within the condonable period of 30(thirty) days? - HELD THAT:- The Order-in-Original dated 24.04.2019 was communicated to the Appellants on 07.05.2019 and the Appeal before the First Appellate Authority was required to be filed on or before 07.07.2019. But the Appeal was filed on 02.08.2019. Accordingly the Appeal was field beyond the statutory period of 60(sixty) days, but within the condonable period of 30(thirty) days. The Appellant inadvertently mentioned the date of communication of the Order-in- Original in the Appeal Memo as 26.04.2019 instead of the actual date of receipt of the Order-in-Original. Accordingly, the Ld.Commissioner(Appeals) considering the date as 26.04.2019, dismissed the Appeal before him.
The correct date of communication of the Order-in-Original is on record i.e. 07.05.2019, it is clear that the Appeal though filed beyond the statutory period, but was field within the condonable period. Accordingly, the delay is condoned in filing the Appeals before the First Appellate Authority and find it appropriate to remand the matter to the Ld.Commissioner(Appeals) to decide the Appeals on merits without further visiting the aspect of limitation.
The Ld.Advocate for the Appellant has submitted some documents which shows that the Department had taken coercive steps for realization of demand. However, subsequent to the order of the Tribunal dated 11.01.2023, a letter was issued on 13.01.2023 to all the banks of the Appellant that the order for freeze may be treated as withdrawn w.e.f. 13.01.2023 onwards. It cannot be apprehended what developments took place over the weekend that again on Monday itself i.e. on 16.01.2023 there was a fresh letter to all the banks requesting to put the letter of defreeze on hold and not to disburse any amount from the accounts until another confirmation is issued to them. These actions are beyond comprehension and cannot be appreciated since the Appeals were pending before the Tribunal and it is observed from the Order-in-Original that substantial amount has already been paid by the assessee and also appropriated in the Order-in-Original.
The impugned orders are set aside and the Appeals filed by the Appellants are allowed by way of remand to Ld.Commissioner(Appeals).
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