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Service Tax - Case Laws
Showing 61 to 80 of 124 Records
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2023 (3) TMI 579
Levy of penalty under Section 78 and 77 (1)(c) of FA - suppression of turnover and/or mis-classification of taxable service - Extended period of limitation - disallowance of cenvat credit along with interest and further penalty - abatement under N/N. 30/2012-ST - HELD THAT:- It is evident on the face of the impugned order, that no case of suppression or fraud, or misrepresentation is found on the part of the appellant/assessee. In this view of the matter, I set aside the penalty under Section 78 of the Finance Act and also under Section 77(1)(c) of the Act. The appellant is entitled to cenvat credit of Rs.1,25,018/-, which is towards Group Insurance taken for the medical and accident claim benefits. In the facts and circumstances, the penalty under Rule 15 of Cenvat Credit Rules read with Section 78 of the Act also set aside.
It is further noticed that the appellant have also deposited the differential amount payable (during adjudication proceedings) as per the impugned order - the Adjudicating Authority is directed to recalculate their tax liability as per order of this Tribunal and after adjustment, if any, amount is found paid in excess, grant the refund to the appellant of the balance amount in cash.
Appeal allowed.
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2023 (3) TMI 578
Misdeclaration in SVLDR Scheme - Non-payment of Service tax - appellant engaged in providing services as Direct Selling Agent of M/s. Safe & Secure Online Marketing Private Limited - no summons were served upon the appellant before filing of the declaration in Form-SVLDRS-I under the Scheme - HELD THAT:- The issue herein is squarely covered by the ruling of Hon’ble Bombay High Court in the case of M/s. New India Civil Erectors Pvt. Ltd. [[2021 (3) TMI 545 - BOMBAY HIGH COURT]].
Further, it is observed that no mis-declaration has been found in the declaration filed under the Scheme by the appellant. Further, no enquiry was pending against the appellant as on the date of filing of the declaration under the scheme.
Appeal allowed - decided in favor of appellant.
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2023 (3) TMI 577
Non/short payment of service tax - advertisement expenses incurred by the local franchisees - non-payment of service tax on management consultancy services by wrongly claiming the same as ‘export service’ - Interest on late payment of service tax on franchisee fees to McDonald’s USA - HELD THAT:- In the instant case it has been stated by the appellant that the appellant had filed an application with the Reserve Bank of India on 17 August, 2021 for granting permission for adjustment of the receivables. In response to the request made, the Reserve Bank of India accorded the approval and the appellant made the remittance of the net amount of Rs. 3,38,13,31,677/- to McDonald’s Corporation USA on 30 March, 2022.
The impugned order in so far as it seeks to confirm the demand of service tax in regard to the first issue, namely non-payment of service tax on advertisement expenses incurred by franchisees deserves to be set aside.
Non-payment of service tax on ‘management consultancy’ services by wrongly claiming the same as export service - HELD THAT:- The matter needs to be remitted to the Commissioner to pass a fresh reasoned order in the light of the observations made above and the additional facts brought to the notice of the Tribunal by the appellant.
Appeal allowed in part and part matter on remand.
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2023 (3) TMI 576
Refund of unutilized CENVAT Credit - part of the refund claims were rejected stating that the CENVAT Credit in respect of such rejected amounts are not admissible to the appellants - Time Limitation - Rule 14 of the CENVAT Credit Rules - HELD THAT:- There was no initiation of proceedings to recover alleged inadmissible CENVAT Credit by invocation of provisions of Rule 14 of CENVAT Credit Rules, 2004 in the present case. The appellants were entitled for the refund of CENVAT Credit which was rejected to them.
Appeal allowed.
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2023 (3) TMI 575
CENVAT Credit - services provided by the Commission Agent - appellant submits that the Services of the Commission Agent is not in relation to either sale of their product or for providing any sales promotion services - HELD THAT:- Hon’ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] has held that the commission agent merely acts as an agent of the principal for sale of goods and such sales are directly made by the commission agent to the consumer - it can be observed that the issue before the Hon’ble High Court was in respect of sale of goods, promotion of sale of goods, etc. by the Commission Agent The Hon’ble High Court held as Commission Agent in this case is only selling the goods and not undertaking any Sales Promotion work, the Respondent would not be eligible for the Cenvat Credit. Further it would be relevant to note here that an amendment was brought in w.e.f. 3.2.2016 to allow Cenvat Credit on ‘Sales Promotion’ also, so as to overcome the difficulty faced by the assesses in view of Gujrat High Court Decision.
In the present case, the Commission Agent is not rendering any service towards sale/Sales Promotion of the present Appellant. The Commission Agent is only an Agent engaged in collection of debts from various subscribers. Therefore, the very premise to issue Show Cause Notice basing on the decision of the Hon’ble Gujarat High Court is erroneous on the part of Department. The Hon’ble Gujarat High Court judgment is on an entirely different type of Commission Agent and is not applicable to the facts of present case.
The Hyderabad Tribunal in the case of PEPSICO INDIA HOLDINGS (PVT.) LTD. VERSUS COMMISSIONER OF CENTRAL TAX, TIRUPATI [2021 (7) TMI 1094 - CESTAT HYDERABAD] has held that Services used in setting up the factory are, therefore, unambiguously covered as ‘input services’ under Rule 2(l)(ii) of the Cenvat Credit Rules, 2004 as they stood during the relevant period (post 1-4-2011). The mere fact that it is again not mentioned in the inclusive part of the definition makes no difference. Once it is covered in the main part of the definition of input service, unless it is specifically excluded under the exclusion part of the definition, the appellant is entitled to Cenvat credit on the input services used.
Extended period of limitation - HELD THAT:- The fact of taking Cenvat Credit on Commission Agent Service is regularly reported in the periodical STReturns filed by the Appellant. Further, the issue of Cenvat Credit on Commission Agent Service is a matter of interpretation and the Department was in error in equating Collection Agent’s service in the present case with that of the service provided by the Commission Agent towards sale of goods/sales promotion in the Cadilla Case [[2013 (1) TMI 304 - GUJARAT HIGH COURT]]. Therefore, the allegation of suppression with an intent to evade cannot be sustained. Hence, the proceedings are hit by limitation and the confirmed demand for the extended period is set aside.
Appeal allowed - decided in favor of appellant.
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2023 (3) TMI 574
Liability to pay service tax for the period post 01.07.2003 - franchise service was provided post its enactment i.e on 01.07.2003, and prior to that date, but the contract for the franchise service and payment therefore, was made prior to 01.07.2003 - whether the appellant’s demand under commission service is time barred when the service of commission provided by giving table space to the finance company for sale of their finance product?
HELD THAT:- The fact which is not under dispute is that the appellant have entered into a contract of franchise agreement before 01.07.2003. and the payment of such contract was also made at the time of entering into the contract. In this fact the Hon’ble Rajasthan High Court in [[2018 (3) TMI 1288 - RAJASTHAN HIGH COURT]] has decided the matter holding that when the contract was entered and payment thereof was made at a subsequent stage if the service was brought under the levy of service tax, the appellant is not liable to pay the service tax, for the reason that the the provision of services shall be treated as provided on the date of contract on payment of service value - it is settled that in respect of Franchise Service the service tax will arise as per the date of contract and date of payment for the service and if the same is at a time when there is no levy, no service tax can be charged. Accordingly, in the present case also the service tax on franchise service is not chargeable.
Levy of service tax - Business Auxiliary Service under the head of commission - HELD THAT:- The issue was not free from doubt and this Tribunal in the case of SILICON HONDA VERSUS COMMISSIONER OF C. EX. (APPEALS-II), BANGALORE [2007 (4) TMI 27 - CESTAT, BANGALORE], & TRIBHUVAN MOTORS LTD. VERSUS COMMISSIONER OF SERVICE TAX, MANGALORE [2009 (5) TMI 382 - CESTAT, BANGALORE] held in favour of the assessee that mere providing the table space to the financial institutions, it is not taxable. However, the issue was subsequently referred to the larger bench and in the case of M/S PAGARIYA AUTO CENTER VERSUS CCE, AURANGABAD [2014 (2) TMI 98 - CESTAT NEW DELHI (LB)], It was held that the commissioner received from the financial institution shall be liable to service tax.
Extended period of limitation - suppression of facts - HELD THAT:- The suppression of fact cannot be alleged against the appellant. Therefore, the demand being covered under the extended period will not sustain as the same is hit by limitation.
Appeal allowed.
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2023 (3) TMI 571
Refund of service tax paid on input services - export of services - April 2016 to September 2016 and October 2016 to March 2017 - Rule 5 of CENVAT Credit Rules, 2004 - HELD THAT:- When the CENVAT Credit is availed by the assessee so long as the same has not been recovered by proceedings initiated by invocation of Rule 14 of CENVAT Credit Rules 2004, such credit remains on the books of accounts of the assessee and he can utilize the same in the manner provided by law. In the present case, the appellants had exported the services and, therefore, were eligible for refund of unutilized CENVAT Credit.
The appellants were entitled for refund of Rs.23,73,694 claimed by them for the period from April 2016 to March 2017 - Appeal allowed.
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2023 (3) TMI 570
Works Contract Service - demand for the period before and after 01.06.2007 - HELD THAT:- So far as the period prior to 01.06.2007 is concerned it is not in doubt that the demand has been made in the category of “works contract service”. The works contract service was not taxable prior to 01.06.2007 has held by Hon’ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] consequently the demand for the period 01.06.2007 made under the category of the “works contract service is set aside.
The definition of residential complex excludes from the levy of Service Tax “complex which is constructed by a person directly engaging any other person for designing or planning of the lay out and the construction of such complex is intended for personal use as residence by such persons.” - Reliance can be placed in the case of M/S. SIMA ENGINEERING CONSTRUCTIONS, S. RAJANGAM, T.M. SARAVANAN, M/S. MARIMUTHU GOUNDER & SONS VERSUS CCE, TRICHY [2018 (5) TMI 405 - CESTAT CHENNAI] where it was held that the appellant, has engaged sub- contractors and therefore rightly all the sub-contractors have paid the service tax. In such a situation in our opinion, there is no liability on the appellant to pay the service tax.
The use of the residential complex by (GSPHCL) is excluded from the definition of residential Complex as “intended for personal use as residence by such persons”.
Appeal allowed.
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2023 (3) TMI 569
Remand of the matter - It is the grievance of the petitioners that the Tribunal instead of deciding the matter has remanded it to the Assessing Officer in view of the fact that the matter being a case of M/s. PCM Cement Concrete Private Limited vs. Commissioner of Central Excise Customs and Service Tax [2017 (9) TMI 1382 - CESTAT KOLKATA] is pending before the Hon’ble Supreme Court.
HELD THAT:- It is true that Civil Appeal Nos.005702-005703/2018 is pending before the Hon’ble Apex Court. We notice that entire basis of remand ordered by the Appellate Tribunal in the present case is on the ground of pending aforesaid Civil Appeal. Secondly, the Tribunal has noted that to adjudicate the issue involved the matter needs to be reconsidered taking into account not only position of income tax but also on basis of terms and conditions of the employment of Directors.
The petition requires consideration. Present petition stands disposed of with following direction:-
“In the instant case also, we notice that the approach of the Tribunal is to abdicate its duty of deciding the matter on the merits or to retain the matter till the outcome of the pending matter before the Apex Court. This approach of Tribunal is not proper. We deem it appropriate to direct the Tribunal to decide the matter on merits. We further reserve liberty to the parties to raise all contentions as raised by both the sides before this Court. Let the same be decided without further loss of time.”
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2023 (3) TMI 540
Wrongful availment of CENVAT Credit - Input Services - Medical Insurance Services provided to its employees for the period 2007 – 08 to 2011 – 12 - rejection of appellant’s VCES declaration on the ground that the working of the audit through the Internal audit report was the determination of liability by the Central Excise Officer - HELD THAT:- The show cause notice dated 19.10.2012 has been issued to the appellant alleging wrongful availment of CENVAT credit of Rs. 1,34,18,976/- on Medical Insurance Services provided to its employees for the period F.Y. 2007 – 08 to F.Y. 2011 – 12. This Notice was adjudicated in favour of the Appellant vide order dated 28.10.2016. A perusal of the list of services on which the appellant declared under the VCES does not include “Medical Insurance Services”.
The VCES declaration indicates that appellant had declared nine other services on which they had chosen to pay the service tax dues under the VCES, 2013. So the argument that a notice on the said issues was pending as on 01.03.2013 is factually incorrect.
Whether an Audit report forms determination of liability under section 106(1) & 160(2) of the Finance Act, 2013? - Commissioner (Appeals) has rejected the appellant’s VCES declaration on the ground that the working of the audit through the Internal audit report was the determination of liability by the Central Excise Officer - HELD THAT:- An order of determination under sections 72, 73 or 73A would be an order in relation to a show cause notice issued under such indirect tax enactment. An audit report cannot be regarded as an order of determination. If that be the case, it would render clause (b) of section 106(2) infructuous - the Commissioner (Appeals) has erred in holding that the audit report is akin to an order of determination under the relevant sections of the Scheme.
The VCES declaration filed by the Appellant was correct - Appeal allowed.
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2023 (3) TMI 539
Classification of services - manufacturing railway sleeper falling under chapter heading 68109990 of the Schedule to the Central Excise Tariff Act, 1985 - reverse charge mechanism - whether the service received by the appellant is Manpower Supply Service or job work service? - HELD THAT:- As per the clause 1A(u) of N/N. 30/2012 – ST dated 20.6.2012, supply of manpower for any purpose by the individual/proprietary firm, Hindu Undivided Family or partnership firm whether registered or not to a business entity registered as body corporate is liable to pay service tax. In this regard, the Commissioner (Appeals) has relied on the GAR-7 challans of M/s Balaji Udyog, one of the five service providers, who has classified their service under Manpower Recruitment Agency. Therefore, the Commissioner (Appeals) has concluded that the service received by the appellant are to be covered under reverse charge mechanism and service tax is payable on 75% of the value of service.
A plain reading of Agreement between the appellant and service provider, M/s Balaji Udyog Ltd. clearly indicates that the service received is that of job work. Perusal of the invoices raised by the service provider to the appellant along with the statement of the job work done by them also shows that the appellant was receiving job work service from this service provider viz., Ms/ Balaji Udyog. It is not material to rely on the definition of the service indicated by the service provider in the GAR 7 challans, when the agreement between the appellant and the service provider is crystal clear.
The issue is no longer res integra as Tribunal, in several decisions rendered in SHIVSHAKTI ENTERPRISES VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE [2015 (12) TMI 682 - CESTAT MUMBAI] and M/S. SHAILU TRADERS VERSUS C.C.E., INDORE [2018 (3) TMI 1282 - CESTAT NEW DELHI] has held that where the service provider had deployed his employees in the manufacturing premises of the appellant for specified job works, the same cannot be held as Manpower Supply Services.
Appeal allowed - decided in favour of appellant.
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2023 (3) TMI 538
Levy of Service Tax - banking and other financial services or not - State Financial Corporation / undertaking of the Government of Rajasthan and has been formed for non-business/ non commercial purposes to facilitate the growth of the industry in Rajasthan - renting of immovable property - sale of loan application forms - concessional interest charged under Seed Capital Assistance Scheme - foreclosure charges for premature payment of loans - annual service charges against Working Capital Term Loan - levy of penalty invoking section 80 of FA.
Sale of loan forms - HELD THAT:- This issue stands decided by the Tribunal vide its order in the case of SADHANA EDUCATIONAL & PEOPLE DEVELOPMENT SERVICES PVT LTD, SADHANA EDUCATIONAL & EMPOWERMENT FOUNDATION, INSTITUTE OF MANAGEMENT EDUCATION VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2015 (6) TMI 694 - CESTAT MUMBAI] wherein it has held that amount collected for sale of forms prospectus etc. would not be includible in the taxable value for levy of service tax - thus, the sale of loan application forms is not a taxable service and therefore, no demand is leviable on such sale of loan forms.
Seed Capital Assistance Scheme - HELD THAT:- Though the term used in ‘service charge’ but the underlying nature of the 1% and 10% is nothing but interest on the seed capital loan, extended to the entrepreneurs. Therefore the same is not liable to service tax. As observed, it is a settled principle of law that interest on loans is not taxable to service tax.
Service charge for prepayment/foreclosure of premature payment of loan - HELD THAT:- The leviability of Service Tax on foreclosure has been examined in detail by this Tribunal in COMMISSIONER OF SERVICE TAX, CHENNAI VERSUS M/S REPCO HOME FINANCE LTD. [2020 (7) TMI 472 - CESTAT CHENNAI] where it was held that Foreclosure charges collected by the banks and non-banking financial companies on premature termination of loans are not leviable to service tax under “banking and other financial services” as defined under Section 65(12) of the Finance Act - thus, the service charges for pre-payment or foreclosure of loan amount by the customer cannot be treated as taxable service and is not chargeable to service tax.
Service charge against Working Capital Term Loan - HELD THAT:- The scheme document has clearly differentiated between the interest liable to be charged on such loans and the service charges on such loan. Therefore service charges of 1% indicated separately clearly shows that this amount is a consideration for the services being provided by the appellant to the borrowers. It is apparent that the said service charge is a financial charge on account of providing financial services of loans and advances. In view of the same, it is held that service tax is leviable on the service charge, realized on Working Capital Term Loan by the appellant.
Levy of penalty under Section 76, 77 & 78 of the Act - Suppression of facts or not - HELD THAT:- The Appellant is a State Government enterprise, and in such a case allegation of willful suppression of facts with an intention to evade the duty payment cannot be made. It is seen that the Tribunal in several cases has held that where the waiver of penalty under Section 80 of the Act is based on the bona fide belief on the part of the appellant that the extended period would not be invokable in as much as the same ingredients are required for invocation of extended period of limitation - there was certainly a bonafide belief of the Appellant that no service tax was leviable on the financial services provided by them. In view of the above, the waiver of penalty under section 80 of the Act has been correctly invoked by the Commissioner (Appeals).
The demand of Rs. 16,99,443/- with applicable interest upheld. The remaining demand is set aside - appeal disposed off.
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2023 (3) TMI 537
Levy of Service Tax - various projects executed by the appellant under Construction of Residential Complex Service - Section 73(1) read with Section 73(2) of the Finance Act, 1994 - period from September 2007 to November 2009 - HELD THAT:- The issue involved is no more res integra as the same stands settled by the decision of the Hon’ble Apex Court in the case of Commissioner of C.Ex. & Cus., Kerala v. M/s. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], which has been followed by the Chennai Bench of the CESTAT in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI] where it was held that For activities of construction of new building or civil structure or new residential complex etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under “Works Contract Service‟ as defined under section 65(105)(zzzza) ibid.
In view of the above ruling of the Chennai Bench of the CESTAT covers the period post 01.06.2007 also and hence, the ratio laid down therein applies to the case on hand. Therefore, the submissions of the Learned Advocate for the appellant that the issue is settled in favour of the appellant, is accepted.
Appeal allowed.
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2023 (3) TMI 536
Violation of principles of natural justice - services provided by the appellants of providing scores of candidates appearing in the CAT Examination, conducted by IIM-Ahmedabad to other IIMs was covered under Mailing List Compilation and Mailing Service or not - SCN issued by invoking extended period of limitation - HELD THAT:- The appellant has tried to produce some evidences to justify that the service was indeed provided to education institutions. However, since there is finding to the contrary and appellants have not been given a fair chance to produce all evidences in support of their claim, even in a matter where Commissioner (Appeals) was differing from findings of the original authority and has done his own fact findings, there has been violation of natural justice. He has only provided limited opportunity to the appellants to rebut the fresh case and the same needs to be afforded fully, to allow to produce all evidences to justify their claim. Appellants have also raised the legal issue of whether the sequel demand by way of a letter only will be justified in the facts and circumstances of the case.
The limited opportunity afforded to the appellants in view of specific facts of this case, whereby the order-in-original has been differed with, does not meet the ends of justice and full opportunity to adduce evidence needs to be afforded by the Commissioner (Appeals).
Appeal is allowed by way of remand.
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2023 (3) TMI 500
Classification of services - Business Auxiliary Service (BAS) or Business Support Services (BSS) - rendering services to foreign companies for evaluation of prospective garment manufacturers, processing purchase orders, customer management, tracking of delivery schedules, operational assistance for marketing, customer service, pricing policies, managing, distribution, logistics etc. - export of services or not - HELD THAT:- It is found from a plain reading of clause (104c) of Section 65 that “support services of business or commerce” specifically relates to evaluation of prospective customers, telemarketing, processing of purchase orders and fulfilment services, information and tracking of delivery schedules, managing distribution and logistics, etc., which were the activities undertaken by the appellant, while the definition of business auxiliary service under clause (19) of Section 65 of the Act is more general in nature. Hence, the services have been correctly classified under the specific heading of ‘support services of business or commerce’ and does not require us to traverse through section 65A(2) of the Finance Act, 1994.
This Hon’ble Tribunal’s judgment in the case of the appellant in M/s. Fifth Avenue v. Commissioner of Service Tax Chennai [2009 (3) TMI 133 - CESTAT, CHENNAI] and referred to by Revenue, has at paragraph 4.1, clearly found without ambiguity that the services rendered to the vendors and the companies by the appellants therein conformed to the statutory definition of SSBC and hence, the services rendered to the vendors and companies were classifiable under SSBC and not under BAS. Hence section 65A of the Finance Act, 1994 was not required to be discussed in the order.
As regards Revenue’s claim that the LC margin retained by FASPL was nothing but consideration received for the marketing services rendered for vendors and identification and procurement services rendered to the buyers and hence, could not be classified as “export of service” - it is found that the matter has also been examined in detail by the Hon’ble Tribunal in M/S. FIFTH AVENUE SOURCING PVT. LIMITED VERSUS CST, CHENNAI [2017 (9) TMI 895 - CESTAT CHENNAI]. The issue hence does not survive for fresh consideration.
Appeal allowed.
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2023 (3) TMI 499
Classification of services - works contract service or interior decorator service - services such as partition work, metal glass works, civil works, wood work finishing, flooring, ceiling, false ceiling, hardware fittings, blinds, wall paper fixing, electrical work, plumbing work, AC ducting and other similar services in relation to constructed buildings/ offices provided by the appellant during the period 2011-12.
This show cause notice dated 08.07.2013 refers to an earlier show cause notice dated 19.10.2011 that was issued to the appellant for the period 2006-07 to 2010-11. It is not is dispute that both the show cause notices contain the same charges and in fact, the impugned order notes in paragraph 37 also that since the demand proposed in the earlier said show cause notice dated 19.10.2011 was confirmed by order dated 28.11.2013, the demand proposed in the present show cause notice also deserves to be confirmed.
HELD THAT:- It is not in dispute that the earlier order dated 28.11.2013 passed by the Commissioner holding that the services would fall under ‘interior decorator’ service was set aside by order in RUSSELL INTERIORS PVT LTD VERSUS C.S.T., SERVICE TAX, DELHI [2018 (10) TMI 1478 - CESTAT NEW DELHI] - it was held in the case that Once such activity is acknowledged by the Department to be a work contract services there is no justification by concluding the similar activities to fall under any other category.
The order passed by the Tribunal confirming the demand under interior decorator service deserves to be set aside and is set aside - Appeal allowed.
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2023 (3) TMI 498
Levy of Service Tax - appellant undertakes to operate and maintain power plants of various clients in terms of the agreements entered with them - liability of tax on operational charges provided to the owners of the power plants - levy of penalty - HELD THAT:- The issue whether service tax is required to be discharged on operational charges by the appellant has already been examined and decided in favour of the appellant by this Bench in the appellant’s own case OPERATIONAL ENERGY GROUP INDIA PRIVATE LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI SOUTH COMMISSIONERATE [2019 (1) TMI 1236 - CESTAT CHENNAI] where it was held that The issue as to whether activity of production of electricity in power plant would amount to management of immovable property or otherwise has been analyzed and discussed by this Bench in the case of M/S. SHAPOORJI PALLONJI INFRASTRUCTURE CAPITAL COMPANY LIMITED, M/S. OPERATIONAL ENERGY GROUP OF INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [2017 (6) TMI 225 - CESTAT CHENNAI] and held in favour of assessee.
Thus, the assessee is not liable to pay service tax on the operational charges provided by them to the owners of the power plants and, imposition of penalty does not arise.
Appeal allowed.
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2023 (3) TMI 497
Levy of penalty u/s 76 & 78 of FA - the service tax along with interest had already been paid - Applicability of Section 73 (3) of Finance Act 1994 - HELD THAT:- As regard, the imposition of penalty under Section 76 in the present case, it is found that the issue is settled by various High Court judgments in CCE VERSUS FIRST FLIGHT COURIER LTD. [2011 (1) TMI 52 - PUNJAB AND HARYANA HIGH COURT] where it was held that simultaneous penalty under Section 76 cannot be imposed when penalty under Section 78 is imposed - thus, the penalty imposed under Section 76 is not sustainable, hence, the same is set aside.
Penalty under Section 78 - HELD THAT:- The adjudicating authority even though invoked the extended period but by invoking Section 80 set aside the penalty by considering the fact that the appellant had admittedly paid the entire service tax along with interest before issuance of show cause notice. It is further found that the non payment of service tax was detected only during audit of the appellant’s books of accounts, therefore, the transaction on which the service tax demanded were very much entered in the books of the appellant’s account.
The adjudicating authority has rightly set aside the penalty under Section 76 & 78 of the Finance Act, 1994 - there are no infirmity in the order of the adjudicating authority - appeal allowed - decided in favour of appellant.
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2023 (3) TMI 447
Refund of sum deposited as pre-deposit during investigation - petitioner’s grievance as against this communication is premised in the contention that the petitioner’s request for refund of a sum deposited as pre-deposit during investigation, is decided without due opportunity - violation of principles of natural justice - HELD THAT:- It is obvious on perusal of the impugned communication, the petitioner’s claim is not considered in the light of whether the petitioner, if entitled to credit of pre-deposit under the SVLDR Scheme and has deposited a similar amount to avail the benefit of the Scheme because there was no communication, would be entitled for refund. This Court is of the considered view that this question should have been considered with due opportunity to the petitioner which admittedly is not accorded. Therefore, this Court must intervene quashing the impugned order and restoring the petitioner’s application for re-consideration by the first respondent within a time frame.
The petition is allowed in part, and the impugned communication dated 01.06.2021 [Annexure-S] is quashed restoring the petitioner’s request for refund to be reconsidered by the first respondent, who shall within eight [8] weeks from the petitioner’s first date of appearance after this order decide on such request.
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2023 (3) TMI 446
Refund of unutilised CENVAT Credit - exporter of services - rejection of refund on the ground that credit is not reflected in the ST-3 return - HELD THAT:- From the perusal of the order of tribunal while remanding the matter it is evident that tribunal has held that the appellant is eligible to avail the Cenvat Credit of the input services for the period prior to 14.03.2006. It is not even the case of revenue that the CENVAT Credit is not available in respect of these services however said credit has not been reflected in the return filed by the appellant during the period 2005-06 or as opening balance in the ST-3 return filed for the period April to September 2006.
It is evident that ST-3 return has not been mentioned as the document relevant for the purpose of considering the admissibility of the credit and the refund. Accordingly rejection of refund claim by referring to the ST-3 return, cannot be justified, provided the fact of the admissibility and availability of the credit claimed as refund can be determined from the records maintained under the Central Excise Rules, 2002, the CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994.
Reliance placed in the case of PRINCIPAL COMMISSIONER OF SERVICE-TAX VERSUS BROADCOM INDIA RESEARCH PVT. LTD. [2016 (6) TMI 877 - KARNATAKA HIGH COURT] where it was held that the relevant documents on the basis of which credit was taken, nature of service and its nexus and utilization of the service for there was some mistake in the ST-3 returns, substantive right of assessee for refund cannot be rejected.
Thus, the refund claim could not have been denied for this reason. It is stated/ unstated policy which govern the exports of goods or services across the globe that the local taxes should not be exported along with the goods or services exported.
Appeal allowed.
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