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Service Tax - High Court - Case Laws
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- 2020 (3) TMI 1004
Maintainability of appeal - appropriate forum - Recovery of service tax - classification of services - Construction of Complex Services or Commercial or Industrial Construction Service - period from April, 2005 to March, 2010 - HELD THAT:- Indeed, whether the services provided by the Respondent were classifiable directly as 'Construction of residential Complexes and Commercial or Industrial Construction Service' or as 'Works Contract Service' was a neat question of law. The case involves the issue of classification and, therefore, in such instance an appeal against the order of the CESTAT would lie in the Supreme Court under Section 35L of the Central Excise Act, 1944, even if there are other questions involved. The present appeal before this Court is not maintainable.
- 2020 (3) TMI 1003
Clubs or association service - doctrine of mutuality - scope and exclusions from the definition of “club or association” or not - HELD THAT:- The issue decided in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] where it was held that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members’ clubs in the incorporated form. It is evident that the proposed demand in the impugned show cause notice can no longer be sustained - petition allowed - decided in favor of petitioner.
- 2020 (3) TMI 917
Supply of Tangible Goods Services - non-payment of Service Tax - appellant had been collecting Service Tax from its customers since 2008, but had not deposited the same with the Government Exchequer - demand alongwith interest and penalty - extended period of limitation - HELD THAT:- The appeal is admitted on substantial questions of law. Issue notice - List on 28.05.2020 in the category ‘After Notice Miscellaneous Matters’ for final disposal.
- 2020 (3) TMI 811
Power of service tax department to Audit and seek information - Post GST era - Rule 5A of the Service Tax Rules, 1994 as having lapsed w.e.f. 01.07.2017 - Held that:- From Section 94 of the Finance Act, 1994 it would be seen that the Central Government has been empowered to make Rules for carrying out the provision of Chapter 5 of the Finance Act, 1994, which contains the provisions in relation to levy of service tax. Power of Central Government to frame Rules - Held that:- The specific aspects in respect of which the Rules may be framed as enumerated in clauses (a) to (m) of Section 94(2) do not take away the general and omnibus power to make Rules conferred by the opening words of Section 94 (2). The Parliament consciously while enumerating the specific matters in respect of which Rules may be framed, preserved the general Rule making p....... + More
- 2020 (3) TMI 758
Condonation of delay in filing appeal - HELD THAT:- By this application the applicant seeks condonation of delay of 150 days in re-filing the appeal. For the reasons stated in the application, the delay is condoned. Application disposed off.
- 2020 (3) TMI 661
Validity of SCN - SCN challenged on the point that the procedure set out for adjudication/assessment has not been followed, insofar as there is no pre-consultative process that has been followed in this case - HELD THAT:- Evidently, the pre-adjudication/consultation envisaged is with the Assessing Officer and not with the Audit Commissioner and this error has been rectified by order dated 09.01.2020. To this extent paragraph 11 of the impugned show cause notice is set aside. With the regularisation of the procedure, proceedings under the impugned show cause notice will continue. Petition disposed off.
- 2020 (3) TMI 660
Refund of Service Tax - Time Limitation - reverse charge mechanism - Benefit of N/N. 41/2007-ST dated 6th October 2007 (amended by the notification No. 17/2008-ST dated 1st April 2008) - HELD THAT:- The clause 2 (e) of the Notification No. 41/2007-ST must be applied strictly, and the Appellant cannot selectively seek relief of the said notification. The CESTAT has passed a laconic, well-reasoned and thorough order upholding the order of the Commissioner (Appeals), which merits absolutely no interference. It is trite, that while interpreting exemption notifications, such notifications have to be interpreted, stricto sensu. The question of law raised in this appeal is answered against the Appellant and in favour of the Respondent - appeal dismissed.
- 2020 (3) TMI 459
Rectification of Mistake - Error apparent on the face of record or not - benefit of the extended period was denied on the ground that the Appellant had not invoked the plea, or that it was a registered as a not-profit organization under the Societies Registration Act, 1860. Whether the CESTAT suffered from any error apparent on face of record in light of the contention of the appellant that it had on numerous instances invoked the plea of the extended period? HELD THAT:- Honorable Supreme Court in COMMISSIONER OF CENTRAL EXCISE, MUMBAI VERSUS BHARAT BIJLEE LIMITED [2006 (4) TMI 136 - SUPREME COURT] has held that Failure to take into considerations the material evidence, which is present on the record, would certainly amount to mistake apparent on the face of record and the tribunal under the circumstances would have the jurisdiction to co....... + More
- 2020 (3) TMI 378
Principles of natural justice - opportunity for cross-examination denied - alleged evasion of tax - HELD THAT:- There are no merit in this appeal. The question of cross-examination of petitioner No.2 by himself and the adjudicating authority does not arise. Even otherwise, the rights of the petitioners are protected. The liberty is granted to the petitioners to adduce any evidence to substantiate their stand and the respondents - authority was also directed to consider the same and pass appropriate orders. Therefore, there is no denial of the rights of the petitioners. The order of the learned Single Judge is sufficient and well reasoned to protect the legal rights of the petitioners. They are entitled to make a statement or otherwise as held by the learned Single Judge - there are no good ground to consider the case of the petitioners - appeal dismissed.
- 2020 (3) TMI 377
Interest on refunds - Revenue rejected the claim with regard to the interest on the refund amount on the ground that no effective steps were taken by the petitioners subsequent to the order passed by the assessing authority - HELD THAT:- The assessing authorities orders are of the year 2006 and the respective writ petitions are filed in the year 2017. Even if the petitions are not entertained on the ground of delay, on equity, the petitions are to be considered as the matters pertain to demand of tax amount. Admittedly, the delay cannot come to the aid of the respondents. The respondents have retained the money which belongs to the writ petitioners. Therefore, once the learned Single Judge has ordered for refund of the tax amount, necessarily, interest should follow. The order of the learned Single Judge is not challenged by the responden....... + More
- 2020 (3) TMI 264
Audit/verification of documents/records - Rule 5(A) of Service Tax Rules, 1994, read with Section 174(2)(e) of the Central Goods and Services Tax Act, 2017 - petitioner states that under Section 174 (2)(e) of the CGST Act, 2017, which is the repeal and saving clause, Rule 5A of the Service Tax Rules, 1994 has not been saved and having regard to the fact that the said provision only saves a proceeding that has already been instituted at the time of repeal or omission of the 1994 Act and not thereafter, the respondents cannot be permitted to conduct an audit/verification of the accounts of the petitioner for the relevant financial years. HELD THAT:- No interim relief of the nature as prayed for, can be granted without calling for a reply by the respondent. We are also not persuaded to come to the aid of the petitioner right away for the rea....... + More
- 2020 (3) TMI 155
Filing of revised return - time limit for filing of revised return - Rule 7B of Service Tax Rules-1994 - HELD THAT:- On perusal of the Rule 7B of the Rules-1994, it permits the assessee to file revised return in form ST-3, in triplicate, to correct a mistake or omission, within a period of ninety days from the date of submission of return under Rule 7. Rule 7 prescribes for return to be filed under Form ST-3. As per rule 7B, it appears that the assessee can revise the return filed under Rule 7 within a period of 90 days from the date of submission of the original return under Rule 7 of the Rules 1994. Rule 7B only permits the assessee to revise the mistake or omission in the return filed under Rule 7 within a period of 90 days. If the assessee finds any mistake in the form ST-3 file under Rule 7 of the Rules1994, he can revise the same in....... + More
- 2020 (3) TMI 154
Maintainability of appeal - Classification of services - Whether or not, the Boards and the University are educational institutions. If the Boards and University are found to be educational institutions, the services provided to them are exempt? Maintainability of appeal - HELD THAT:- Against an order passed by the Appellate Tribunal, appeal lies to the High Court; however, the order which is subject matter of challenge should not relate to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment. Since classification of goods or services has a direct relation with the rate of duty, an appeal against an order of the Appellate Tribunal relating to a classification dispute would also lie before the Supreme Court and not the High Court - Since an appeal against ....... + More
- 2020 (3) TMI 153
Club and Association service - It has been alleged that since the petitioner was an incorporated company and therefore, the services rendered by it cannot be said to be excluded from the definition of “club or association” in view of specific exclusion sub-clause (iii) to the above definition - demand of service tax - extended period of limitation- HELD THAT:- Normally, writ against show cause notices ought not to have been entertained in the 1st place. The petitioner ought to have been directed to reply to the said show-cause notice. However, in the present writ petition an interim injunction was ordered on 16.11.2011 in M.P.No.2 of 2011 and therefore the impugned Show Cause Notice has not been adjudicated till date. Meanwhile, the Honourable Supreme Court has now given its verdict in the case of STATE OF WEST BENGAL & OR....... + More
- 2020 (3) TMI 19
Demand of service tax from the partnership firm - appropriation of service tax by the proprietorship firm - a partnership firm was constituted and the proprietorship business was taken over by the partnership firm with all the assets and liabilities - HELD THAT:- The service tax for some period was being paid in the name of the sole proprietorship business, and not in the name of partnership firm. Subsequently the partnership firm claimed that the tax for the relevant period be treated as the tax paid by partnership firm - It is pointed out by learned counsel for the petitioner that a representation given for the same on 22.7.2019, as contained in Annexure-13 to the writ application, is still pending before the Commissioner of CGST, Central Excise & Service Tax, Ranchi, which has not yet been disposed of. Application disposed off with....... + More
- 2020 (2) TMI 1208
Maintainability of appeal - monetary amount involved in the appeal - HELD THAT:- In the present case, there is no challenge to the constitutional validity of any particular Provision, Act or Rule nor there is any challenge to the legality, validity of any Notification/Instruction/Order or Circular. In such circumstances, the Instruction dated 17th August 2011 referred to in Paragraph-4 of the Instruction dated 22nd August 2019 will have no application. In view of the monetary limit prescribed by the Ministry of Finance, Department of Revenue, this appeal is disposed of accordingly.
- 2020 (2) TMI 1167
Service tax audit - Jurisdiction post GST era - Sections 173 and 174 of the GST Act of 2017 - respondent authorities has placed reliance on a coordinate Bench judgment of the Calcutta High Court in M/S. GITANJALI VACATIONVILLE PRIVATE LIMITED & ANR. VERSUS THE UNION OF INDIA & ANR. [2019 (1) TMI 917 - CALCUTTA HIGH COURT] wherein the Court had refused to pass any interim order. HELD THAT:- The impugned notices dated December 13, 2018 and April 25, 2019 should be stayed till June 12, 2020 or until further orders whichever is earlier. Let the matter appear in the combined monthly list for the month of June 2020 under the heading ‘Hearing’.
- 2020 (2) TMI 1071
Maintainability of appeal - appropriate forum - Classification of services - real estate agent services or not - Sahara was to acquire the land, including the cost and development expenses - case of appellant is that Tribunal erred in not treating the respondent as providing “real estate agent” service, and in treating the transaction, between the respondent and Sahara, as one of trading - HELD THAT:- Appeals to the High Court, against orders passed by the learned Tribunal, in matters relating to service tax, lie under Section 83 of the Finance Act which, in turn, refers to Section 35G and 35L of the Central Excise Act, 1944. It stands authoritatively held by this Court, in catena of pronouncements, including COMMISSIONER OF SERVICE TAX VERSUS GECAS SERVICES INDIA PVT. LTD. [2015 (9) TMI 889 - DELHI HIGH COURT], COMMISSIONER O....... + More
- 2020 (2) TMI 965
Scope of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - whether the proposed confiscation is covered by the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019? - HELD THAT:- Prima facie, it appears to us that the respondent’s legacy scheme should be broad enough to cover not only the aspect of demand of duty, but also to cover cases where goods are liable to be released upon payment of redemption fine in lieu of confiscation. Otherwise, the Scheme may itself provide only partial relief to the parties and also leave disputes unsettled thereby defeating the very object of the Scheme. The respondents are directed to examine the aforesaid aspect and place their response on record within four weeks - Rejoinder be filed before the next date. List on 10.09.2020.
- 2020 (2) TMI 815
Levy of Service tax - Whether the tribunal was correct in accepting the contention of the respondent BSNL that service tax is leviable on the actual receipts and not the gross receipts? - HELD THAT:- Section 35C of the Central Excise Act, 1944 confers jurisdiction upon the Appellate Tribunal to pass such orders which are indicated therein, including orders confirming, modifying or annulling the decision or order appealed against. However, Section 35C of the Act of 1944, does not confer any jurisdiction upon the learned Tribunal to carryout assessment of the tax liability and records its own conclusion on that behalf. Thus, a function which has to be left to the assessing authorities had been undertaken by the learned CESTAT in a manner, which is, impermissible in law, more so, when such an exercise was not attempted even by the Commission....... + More
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