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Service Tax - Case Laws

Showing 81 to 85 of 85 Records

• 2023 (1) TMI 108
  

  Levy of service tax - Renting of immovable property service - revenue sharing arrangement - existence of service provider or service recipient relationship or not - respondent was engaged in lending the theatre to the film distributors/sub-distributors for depicting the films, whose copyrights were retained by the distributors - inter-connected services with predominance of the service of renting of immovable property to the distributor.

  HELD THAT:- According to the respondent, the viewers visit the theatre for entertainment and the consideration is paid to the respondent for the same. The distributor and the theatre owner i.e. respondent have come together on a common platform under revenue sharing arrangement. Therefore, the two have provided the service jointly to each other and are working for the mutual benefit of both the parties. Both the parties are working independently and the share of the Distributor is given by the respondent from the gross receipts from movie tickets - This would be apparent from the agreement executed between the respondent and Mukta Arts which provides that out of the total revenue generated from the screening of films, the respondent would retain a fixed gross revenue and pay balance to the distributor. Further, as per the agreement, the gross revenue is to be distributed in the following ratio on weekly basis.

  This Division Bench of the Tribunal in INOX LEISURE LTD. VERSUS COMMISSIONER OF SERVICE TAX, HYDERABAD [2021 (10) TMI 893 - CESTAT HYDERABAD], examined the same issue, as has been raised in this appeal, namely whether service tax would be leviable if revenue is shared between the appellant and the producer of films and held that even in such a situation no service tax can be levied - It was held in the case that Such an arrangement between a distributor/producer and an exhibitor of films was examined by a Division Bench of the Tribunal in Moti Talkies [2020 (6) TMI 87 - CESTAT NEW DELHI]. The Department alleged that the agreement was for ‘renting of immovable property’ as defined under section 65(90a) of the Finance Act. This contention was not accepted by the Tribunal and it was observed that the appellant did not provide any service to the distributors nor the distributors made any payments to the appellant as consideration for the alleged service.

  A revenue sharing arrangement would, therefore, not necessarily imply provision of services, unless the service provider and service recipient relationship is established. This is what was observed by the Tribunal in MORMUGAO PORT TRUST VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX, GOA- (VICE-VERSA) [2016 (11) TMI 520 - CESTAT MUMBAI], M/S. OLD WORLD HOSPITALITY LIMITED VERSUS CST, NEW DELHI [2017 (2) TMI 1176 - CESTAT NEW DELHI] and DELHI INTERNATIONAL AIRPORT P. LTD. & MUMBAI INTERNATIONAL AIRPORT P. LTD. VERSUS UNION OF INDIA & ORS. [2017 (2) TMI 775 - DELHI HIGH COURT] - In the present case, there is no service provider or service recipient relationship. The contention advanced by the learned authorised representative for the department cannot be accepted.

  Thus, no illegality was committed by the Principal Commissioner in discharging the show cause notice - The appeal is dismissed.

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• 2023 (1) TMI 107
  

  CENVAT credit of service tax paid - duty paying documents - service tax on reverse charge basis in respect of ocean freight services - suppression/misdeclaration of facts or not - HELD THAT:- A perusal of the impugned order shows that the order first decides that the appellant are not entitled to cenvat credit invoking Rule 9(1)(bb) of the Cenvat Credit Rules. On that account, the impugned order denies the refund claimed by the appellant.

  The issue regarding admissibility of credit under Rule 9(1)(bb) has nothing to do with the CGST Act and therefore, the reference made to the larger bench in the case of M/S. BOSCH ELECTRICAL DRIVE INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF G.S.T. AND CENTRAL EXCISE, CHENNAI [2021 (10) TMI 1345 - CESTAT CHENNAI] has no relevance in the instant case. The instant case is solely based on the admissibility of credit under Rule 9(1)(bb).

  In view of that, it is apparent that the claim of the appellant to avail credit on the strength of Challan of Service Tax paid by them in the capacity of service recipient cannot be denied under Rule 9(1)(bb). Moreover, there is no evidence on record to show that the appellants have engaged in any mis-declaration, suppression etc. especially in view of the fact that the levy of service tax on Ocean Freight itself was held ultra virus by Hon’ble High Court of Gujarat in case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT].

  It is held that the appellants are entitled to take credit of CENVAT credit paid on ocean freight - matter is remanded to the original adjudicating authority for fresh consideration - Appeal allowed by way of remand.

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• 2023 (1) TMI 106
  

  Denial of cash refund of service tax - Export of final products - period prior to amendment of Notification 41/2007-STdated 06.10.2007 by Notification 33/2008-STdated 07.12.2008 - HELD THAT:- The appellant have exported certain goods and utilized certain services. The appellant have sought refund of service tax paid on those services under Notification 41/2007-ST. the decision of Tribunal in the case of BHARAT ART AND CRAFTS, SHIVAM EXPORT (100% EOU) , BOTHRA INTERNATIONAL VERSUS COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II [2016 (4) TMI 197 - CESTAT NEW DELHI] clearly lays down that if the appellants have availed draw back, the refund under Notification 41/2007 dated 06.10.2007cannot be claimed for the period prior to amendment of Notification 41/2007-STdated 06.10.2007 by 33/2008-ST dated 07.12.2008.

  Appeal dismissed.

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• 2023 (1) TMI 56
  

  Extended period of limitation - Issue involved was subject to various litigation - Correctness of proceedings initiated in show-cause notice dated 15th April 2014 for the period from 2008 to 2012 - inconsistent with bar of limitation prescribed in section 73 of Finance Act, 1994 - HELD THAT:- It is seen from the records that show-cause notice for the period from October 2003 to September 2008 dated 6th April 2009 on the same issue had been adjudicated and was carried to the Tribunal who, while upholding the default, had held that the demand was liable to be restricted only to the normal period in section 73 of Finance Act, 1994. An appeal against this order of the Tribunal, though admitted, is, as yet, pending before the Hon'ble Supreme Court.

  The demand for October 2003 to September 2008 has been, thus, curtailed and the present demand leading to the impugned order relates to the period thereafter till 2012 for which show-cause notice was issued on 15th April 2014.

  This appeal of Revenue seeking recovery as proposed in the demand by invoking of the extended period for subsequent period of time is not correct in law - the appeal of Revenue is dismissed.

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• 2023 (1) TMI 7
  

  Denial of Cenvat Credit - Denial of interest on delayed refund - principles of ejusdem generis - HELD THAT:- It is settled principle that Justice need not only be done but it should be seem to be done. Although a specific plea has been raised by the Appellant but the learned Commissioner failed to give any findings on the said plea - In my view the plea raised by learned Consultant has a bearing on the merits and therefore the learned Commissioner ought to have gone into the submissions of the appellant and recorded a finding thereon. He jumped to the conclusion without recording any finding. Mere recording of conclusion without discussions on submission or case laws is no consideration and the absence of reasons has rendered the impugned order unsustainable.

  Matter remanded back to learned Commissioner (Appeal) with a direction to decide the appeal afresh and to give detailed findings on the pleas raised by the appellant. All the issues are left open. It goes without saying that the said authority must adhere to the principle of natural justice.

  Appeal allowed by way of remand.

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