- 2019 (9) TMI 706
Classification of services - services of facilitating disposal of hazardous solid waste generated by various industrial units - whether classified under Support Services of Business or Commerce or otherwise? - Benefit of N/N. 42/2011-ST, dt.25.07.2011 - HELD THAT:- The learned Advocate has fairly submitted that this ground has been raised for the first time before this Tribunal, hence, all aspects of the said plea could not be examined by the Adjudicating authority. We find that the eligibility of Notification which was given retrospective effect, need to be examined to consider its applicability to the facts of the present case. It is prudent to remand the matter to the Adjudicating authority to examine the issue afresh by taking into consideration the eligibility of said exemption N/N. 42/2011-ST, dt.25.07.2011 to the services provided by the Appellant to various industrial units - appeal allowed by way of remand.
- 2019 (9) TMI 670
Recovery proceedings - demand of service tax - management consultancy service - fees paid to Hyatt International for the operation of Hotel - Business Auxiliary Service - miscellaneous payment to Hyatt International - Maintenance or repair service - subscription and maintenance of Software - Business Auxiliary Service - Reservation expenses, Hyatt Gold Passport, Hyatt chain services - Interior Decorator Service - penalty on Design and Consultancy charges - penalty on Advertising Agency Service - Business Auxiliary service - Currency Conversion Fee - Convention Centre Services - miscellaneous Revenue like photocopies etc - Management consultancy service - fees paid to Hyatt International for the operation of Hotel - period 18 April, 2006 to 31 March, 2007 - HELD THAT:- In the present case, as the period in dispute is from 18 April, 2006 to....... + More
- 2019 (9) TMI 667
Renting of immovable property service - period August, 8/2008 to June, 6/2012 - eligibility for abatement of 40% in terms of notification no.26/2012 - service tax on letting out plant/machinery and fixtures to M/s. Mahindra Holidays & Resorts India Ltd. - Supply of tangible goods service - extended period of limitation - penalty u/s 77 and 78 of FA. HELD THAT:- The facts are akin to the ruling in the case of M/S JAI MAHAL HOTELS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (7) TMI 540 - CESTAT NEW DELHI], wherein it has been held that on true and fair construction of the provisions of Exclusionary Clause under Explanation I to Section 65(105) (zzzz) and in particular, sub-clause (d) thereof, it was held that renting of building used for the purpose of accommodation including hotels, meaning thereby renting of a building for a h....... + More
- 2019 (9) TMI 648
Re-opening of assessment made under VCES - wrong declaration of service under the scheme - Department was of the view that services are to be classified under Works Contract Service and not Construction of Residential Complex Service - HELD THAT:- The facts of the case reveal that there is no dispute as to the value of services declared by the respondents. The allegation of mis-declaration is only with respect to classification of the services. The respondent classified the services as Construction of Residential Complex Services whereas department classifies it as Works Contract Service. This is only an issue of interpretation. Construction of residential complex services provides a more specific classification than works contract service and accordingly will prevail over the other classification. Also, the issue covered by the decision ....... + More
- 2019 (9) TMI 647
Classification of Services - Business Auxiliary Service or not - contribution made by members which are sugar Mills - demand of service tax alongwith penalty - HELD THAT:- The issue stands covered by the decision in the case of M/S UP CO OPERATIVE SUGAR FACTORIES FEDERATION LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & S.T., LUCKNOW [2017 (8) TMI 1004 - CESTAT ALLAHABAD] where it was held that no service tax would be chargeable on the amount being received by the appellant from its Member Sugar Mills - demand set aside - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 583
Classification of services - Business Auxiliary Services or not - amounts received by the Appellants from the vehicle manufacturer/ dealer and accounted by them in their book of accounts as subvention income - Case of appellant is that since the subvention income is nothing but interest against the advances the same should not be subjected to service tax - recovery of amount not/short paid. Whether the amounts received by the Appellants from the vehicle manufacturer/ dealer and accounted by them in their book of accounts as subvention income should be subjected to service tax under the category of ‘Business Auxiliary Services’ as defined by Section 65 (19) of Finance Act, 1994? HELD THAT:- We are not in agreement with the submissions made by the appellants. Once we hold that the amounts received by the appellants as “sub....... + More
- 2019 (9) TMI 582
Rejection of Refund claim - time limitation - relevant date - Rule 5 of the CCR, 2004 - HELD THAT:- The relevant date for the purposes of deciding the time-limit for consideration of refund claims under Rule 5 of the CCR has been held to be the end of the quarter in which the FIRC is received in cases where the refund claims are filed on a quarterly basis and this finding is required to be applied to these cases as well since no contrary decision or order is placed on record. Reliance placed in the case of C.C.E., Cus. & S.T., Bengaluru Vs. M/s. Span Infotech (India) Pvt. Ltd. [2018 (2) TMI 946 - CESTAT BANGALORE] where it was held that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis. Refund allowed - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 581
Renting of immovable property service - Demand of Service Tax - CBEC vide DoF No. 334/01/2007-TRU dated 28.02.2007 - HELD THAT:- There is substantial merit in the argument of the appellant that the entire scheme was devised and executed much before the levy of service tax was introduced under the head of renting of immovable property service and therefore, the allegation that the appellant disguised the receipt of rent as non-refundable contribution is totally misplaced. A perusal of the SCN shows that there is no evidence whatsoever to support the allegation that what was collected was in fact rent and not non-refundable contribution. It is also seen that the entire scheme was devised under the supervision of Ministry of Textiles and it’s representatives. In these circumstances the allegation appears to totally baseless - demand is....... + More
- 2019 (9) TMI 580
Classification of services - Cargo Handling Service or port service - appellant has been providing the service of stevedoring service at Karwar Port and discharging the goods from the vessel to the wharf - HELD THAT:- The services rendered by the appellant does not fall in the category of Cargo Handling Service prior to 1.7.2003. Further, during the impugned period, the services rendered by the appellant fall in the category of Port Service and not Cargo Handling Service as held by the apex court in the case of DCCE vs. Sushil & Co. [2016 (4) TMI 987 - SUPREME COURT] and also clarified by the Board Circular dated 1.8.2002 - demand of service tax on Cargo Handling Service for the period 16.8.2002 to 30.6.2003 is not sustainable in law. Time Limitation - HELD THAT:- The entire demand is also barred by limitation because the show-cause n....... + More
- 2019 (9) TMI 531
Valuation - inclusion of reimbursable expenses in assessable value - C&F Agent service - HELD THAT:- The Commissioner (Appeals) though has set aside the demand on TDS and on reimbursement of certain expenditure but he has not given any specific finding on each of the reimbursable expenses viz. Godown rent, damage allowance, loading charges and demurrage charges - Further, all these expenses were reimbursed by the appellant for the various purposes incurred for carrying on the business of C&F Agent Service. The impugned order to the extent of Service Tax on reimbursement is liable to be set aside - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 530
Classification of services - Supply of Tangible Goods service or otherwise - appellant had received income under the head “Gas Connection Charges” from Industrial, Commercial and Domestic customers and perusal of the sale agreements and invoices, revealed that such charges were collected for supply of pipes and measuring equipments at the time of providing new gas connections to the customers - recovery alongwith Interest and penalty - benefit of cum-tax value. HELD THAT:- The service should be provided by any person to any other person for use of that person. In the present case, the appellant is distributing gas to its customers through pipes and for this purpose, it has installed an equipment called SKID at the customers’ site. It is true that the equipment is installed at the site of customer and at the cost the cust....... + More
- 2019 (9) TMI 469
Recall of an order - rectification of mistake - non-speaking order - case of appellant is that the conclusion of this Bench that the appellant had rendered other than legal services is an apparent mistake - HELD THAT:- There is no mention nor discussion as to the applicability or otherwise of various decisions relied on by the appellant in the impugned final order - There is no dispute that non-consideration of a judgment of the jurisdictional High Court or Supreme Court is itself a mistake/error on the face of the very order which could be rectified. Apparently, there is no discussion also on various documents like invoices etc., relied on by the applicant and furnished in the paper compilation, suffice it to say that non-consideration of the same amounts to passing a non-speaking order. The impugned final order is recalled and the Registry is directed to relist the appeal for fresh hearing in due course - application allowed.
- 2019 (9) TMI 464
Validity of show cause notice - Audit objections were already settled - Erection Commissioning and Installation Service - availment of abatement on job-work - benefit of N/N. 19/2003 dated 21.08.2003 as amended and N/N. 1/2006-ST dated 01.03.2006 - the objection was raised on the ground that the appellant has not sold any goods and material while providing services to the appellant, but, have received only the amount on job work done by them vide audit objection dated 17.01.2007. HELD THAT:- As the audit objection raised by the revenue has already been settled by them on 18.05.2007, in that circumstances, on the same audit objection, show cause notice cannot be issued to the appellant on 28.07.2009. Therefore, the whole of the demand on the basis of said objection is not sustainable and is also time barred. Benefit of N/N. 19/2003 dated 2....... + More
- 2019 (9) TMI 463
Commercial or Industrial Short payment of service tax - Construction Services - Work Contract Services - demand of differential service tax - case of appellant is that they have provided service alongwith material and have paid VAT thereon - HELD THAT:- As it is a fact on record that the appellant is paying VAT on the works contract amount, in that circumstances, the appellant has rightly paid service tax @2% of the value of works contract. Thus, the appellant is not required to pay further service tax on their activity and whatever service tax has been paid by the appellant is the correct payment of service tax payable by the appellant. Demand do not sustain - appeal allowed - decided in favor of appellant.
- 2019 (9) TMI 462
Classification of services - health services or support services of business or commerce? - revenue sharing basis - agreement with various doctors/consultants on revenue sharing basis whereby a part of the doctor‟s/consultants fee is retained by them in lieu of providing administrative support to them - HELD THAT:- The issue has been settled by this Tribunal in the case of M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI] where it was held that the service provided by the respondent hospital would merit classification under Health Care Services extended to the patients. The appellant had not provid....... + More
- 2019 (9) TMI 413
Levy of penalty u/s 76 and 77 of FA - taxability of Renting of Immovable Property Services - non payment of tax under Bonafide belief - no suppression of facts - HELD THAT:- The undisputed facts are that the appellant is a local authority and hence, there can be no issue as to suppression of any facts and that too, with an intent to evade any tax. Further, though the activity of renting of building is not a statutory function, the building has been rented to earn revenue to perform the statutory functions entrusted on the appellant under Article 243W of the Constitution of India. Further, the bona fide belief of the appellant can be vouched from the Circular No. 13052/2016/D2 dated 03.05.2017 issued by the Commissioner of Municipal Administration to all the Municipal Commissioners clarifying the exemption available under Sl. No. 39 of Meg....... + More
- 2019 (9) TMI 395
Taxability - Health Services - appellants M/s Vivek Sewa Samiti received amount of approximately ₹ 1.5 crores & M/s Gayatri Hospital received amount of approximately ₹ 82 lakhs from M/s ICICI Lombard General Insurance Company for providing health services to members of society who were below the poverty line under ‘Rastriya Swastha Bima Yojana’ - period from 01.07.2010 to 30.04.2011 - HELD THAT:- The requirement in the definition of said service is that the treatment is provided by service provider and payment is made by insurance company directly to the service provider then it satisfies the definition of health services provided under Section 65(105) (zzzzo) of Finance Act, 1994. The appellants during the relevant period had provided said services - demand of service tax upheld - appeal dismissed - decided against appellant.
- 2019 (9) TMI 283
Validity of remand order - Refund claim of excess amount - cum-tax benefit - case of appellant is that this is a case of gross negligence on the part of the Departmental Officer who in spite of so many representations made by him did not fix the personal hearing and did not determine the amount of refund which is due to the appellant from the Department. HELD THAT:- The Commissioner (Appeals) vide his order dated 03.08.2012 has given cum-tax benefit to the appellant and the said benefit was to be determined after proper verification by the jurisdictional officer. Further, the Commissioner (Appeals) has also dropped the penalty by resorting to Section 80 of the Finance Act, 1994. After the decision of the Commissioner (Appeals), the appellant has been writing various letters to various Departmental Officer for proper verification as per th....... + More
- 2019 (9) TMI 243
Reduction in the quantum of penalty u/s 78 - Failure to deposit the tax amount with Government - services of transportation of passengers by air - April 2009 to March 2014 - HELD THAT:- The Learned Commissioner (Appeals) has extended the statutory benefit of discharging 25% of the penalty imposed under Section 78 of Finance Act, 1994 subject to fulfillment of the condition laid down under the said provision. Appeal dismissed - decided against Revenue.
- 2019 (9) TMI 242
CENVAT Credit - processing of certain goods by job work items at hands of job workers providing services to the appellant - HELD THAT:- There is no dispute that the said material is used in provision of the services on which the appellants are paying Service Tax - The SCN seeks to deny the credit on the ground that the activity undertaken by the appellant is not manufacturing but repair of goods and thus, no credit on input can be allowed. It ignores the fact that the appellants are also a service provider and said goods are used in provision of said services in which the appellants are discharging the Service Tax liability. In these circumstances, there is no merit in denial of CENVAT credit to the appellants - credit allowed. Demand of Duty - irregular availment of CENVAT Credit - HELD THAT:- Irrespective of the facts whether the credit....... + More