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Service Tax - Tribunal - Case Laws
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- 2019 (11) TMI 681
Demand of service tax - amounts received as consideration i.e. on the deployment charges - period April 2009 to June 2012 - demand of interest as well - HELD THAT:- The appellants are providing security services to various Central Government organizations. The service recipient gives various facilities to the staff of the appellant like Accommodation, Medical facility, Vehicle, POL and Petrol, Telephone, Stationary, Newspaper, Transportation, the value of which was not included in the cost of deployment charges and the Department entertained a view that cost of all these facilities should be included and service tax is required to be paid on that - Further the appellant is a service unit of the Union of India to protect the sovereign property i.e. the property belonging to the Union which includes its undertakings - the activity of the ap....... + More
- 2019 (11) TMI 680
Levy of service tax - Steamer Agent Service - appellant is engaged in providing services in the nature of clearing and forwarding, business auxiliary and logistics management pertaining to import and export of cargo - Business Auxiliary services - HELD THAT:- Revenue has failed to bring any evidence on record while issuing the SCN and while passing the impugned order which justifies the categorization of appellant in the definition of ‘Steamer Agent’. Further, the impugned order is contradictory because Learned Commissioner (A) in the impugned order has, in fact, admitted that the appellant has not provided any ‘Steamer Agent Service’ but still confirms the demand on the ground that the appellants are carrying out ancillary activity, that of a steamer agent - Also, with regard to the same nature of service, the Dep....... + More
- 2019 (11) TMI 679
Construction services - Construction of Complex Service - appellant had a strong belief that they are not liable to pay service tax but still they calculated the service tax liability and interest for the period from 16.6.2005 to 31.3.2006 after applying the abatement provided under Notification No.1/2006-ST for ‘Construction of Complex Service’ - demand of service tax - Health Club and Fitness Centre Service - Real Estate Agent Service - Interior Decoration Service - Maintenance or Repair Service - CENVAT credit - credit utilization in excess of 20% or not. HELD THAT:- It is not in dispute that the entire activity of the appellant is construction of residential apartments and such activity is in the nature of indivisible works contract involving transfer of property in goods along with provision of service. The appellants are....... + More
- 2019 (11) TMI 678
Classification of services - Construction Services or Works Contract Services? - Valuation - Benefit of abatement claim - N/N. 15/2004-ST dated 10.09.2004 and Notification No. 01/2006-ST dated 01.03.2006 - It was observed that the appellant did not pay service tax on TDS deducted from the payments released by various parties, amount adjusted on account of electricity charges, water expenses and ESI expenses, retention money and mobilisation advance for the period 10.09.2004 to February 2006 - denial of abatement on the ground that the appellant has availed cenvat credit on Telecom Services. Classification of services - Whether the activities of construction of complex developed by Nagar Panchayat, building of private college and boundary wall of different parties undertaken by the appellant and are liable to be taxed under Construction Se....... + More
- 2019 (11) TMI 677
CENVAT Credit - common input services utilised for taxable as well as exempt activity - reversal of proportionate credit - non-maintence of separate records - common input service tax credit availed by them in respect of Telephone and Renting of Immovable Property Service, since the consumables sold by the appellant while rendering service was alleged to be a trading activity - Rule 6 (3) of the CENVAT Credit Rules, 2004 - C.B.E.C. Circular No. 699/15/2003-CX - extended period of limitation. HELD THAT:- The C.B.E.C. Circular No. 699/15/2003-CX has clarified the issue regarding Service Tax on Authorized Service Station during the course of providing service, wherein such ASS replaces engine oil, gear oil, coolants, etc., as per the request of the customer that the sale of consumable during the course of providing service is akin to sale of....... + More
- 2019 (11) TMI 676
Valuation - Commercial and Industrial Construction Service - benefit of N/N. 1/2006-ST (Abatement) - It appeared to Revenue that appellant have wrongly availed benefit of Notification No. 1/2006-ST (Abatement) and that they have undervalued the gross value of service. Revenue was of the view that appellant should pay service tax on the gross value (including the material components) - extended period of limitation. HELD THAT:- The admitted fact is that the contracts executed by the appellant, the copies of which were scrutinised by the Department, are composite, or to be performed alongwith supply of material. No separate cost of material to be supplied was shown. The invoices raised, also contained classification of the material as “sales-tax free”, “sales against D-Form” etc. Further in para 9 of the SCN, it is r....... + More
- 2019 (11) TMI 675
Erection, Commissioning or Installation Service - Composite works contract or not - Demand of service tax - project which they have undertaken for construction of floodlighting along the Indo-Bangladesh Border - Benefit of N/N. 45/2010-ST, dt. 20.07.2010 and 11/2010-ST, dt. 27.02.2010 - demand of mobilization advance which they have received from their clients which was subsequently adjusted in the final bill - service tax under reverse charge mechanism on the freight paid to the vendors under GTA services - extended period of limitation - penalties. Project for construction of floodlighting around Indo Bangladesh Border in the State of Tripura - demand of service tax - HELD THAT:- It is evident from the records before us that the project was awarded by Ministry of Home Affairs to M/s Coastal Projects Private Limited, A Government of Indi....... + More
- 2019 (11) TMI 616
Refund of service tax - Rule 5 of CCR 2004 - export of services - service of the appellant are classifiable under BAS and being ineligible service, duly exported, the appellant filed refund claim for the period 2008-09 - HELD THAT:- Except as provided in the agreement, the appellant have not raised any invoices for after sale service. They have raised invoices for the marketing services rendered, classifiable under BAS and have received commission from the manufacturer located in Japan - Accordingly in terms of the export of service rules, 2005 rule 3 (2) (a) read with Rule 3(2)(b)(ibid), the appellant have satisfied both the conditions, as the receiver of the services is located outside India and have received remittance for the services in convertible foreign exchange. The appellant have exported their services outside India. Accordingly they are entitled to refund under Rule 5 of CCR 2004 - appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 615
Denial of abatement claim - GTA Service - reverse charge mechanism - N/N. 32/2004-ST dated 3.12.2004 - Department proceeded to deny such abatement claim for the reason that the appellant was unable to submit declaration in respect of all the consignment notes from the Goods Transport Agencies to the effect that they have not availed the benefit of CENVAT credit - HELD THAT:- The issue in dispute is the claim of abatement by the appellant to the extent of 75% in terms of N/N. 32/2004 dated 3.12.2004. The issue is no more res integra and stands settled in favour of the appellant in the case of LYKES LINE LTD. VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [2016 (11) TMI 192 - CESTAT MUMBAI] in which the Tribunal has taken the view that the condition if any imposed on the GTA cannot be practically complied by the recipient of service - As such, the Tribunal held that the benefit of abatement cannot be denied to the recipient of service. Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 614
Voluntary Compliance Encouragement Scheme - the condition of payment of 50% of the declared tax dues under the scheme not fulfilled - section 107 (3) of the Finance Act, 2013 - whether the VCS- 1 application filed by the appellant have been rightly refused observing that they have declared tax dues for the period October, 2007 to December, 2012, for not satisfying/ fulfilling the condition of payment of 50% of the declared tax dues under the scheme, on or before 31st December, 2013 as stipulated under section 107 (3) of the Finance Act, 2013? HELD THAT:- There have been a clerical error on the part of the appellant in filling up the form VCES-1 properly, as already aforementioned. Accordingly, I hold that the substantial benefit should not be disallowed for venial mistake of clerical nature. Moreover, in the calculation sheet annexed to f....... + More
- 2019 (11) TMI 567
Refund of service tax - time limitation - export of services - commission paid to overseas agents - claim was rejected on the ground that the claim pertaining to the period October 2008 to December 2008 was filed on 28.05.2009 i.e. within the period of six months as prescribed in notification however, without the duty paying challans which was dated 11.08.2009 - HELD THAT:- In the appellant’s own case, the issue has been decided by the Tribunal in M/S SOPARIWALA EXPORTS PVT LTD VERSUS CCE & ST- VADODARA-I [2018 (5) TMI 1460 - CESTAT AHMEDABAD] where it was held that the refund claim cannot be rejected on the ground of time bar, since, they have complied with the condition of filing the refund claim within 6 months from the date of export of goods for the relevant quarter i.e. from July, 2008 to Sept., 2008. Refund allowed - appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 566
Refund of service tax - unjust enrichment - section 11B of CEA - SCN was issued detailing unjust enrichment provisions in Section 11B as well as on the ground that sub-contractors are liable to pay service tax as well as main contractor - HELD THAT:- The Commissioner (Appeals) should have decided the matter only on the aspect of unjust enrichment as all other issues were either not raised at the first stage of SCN or settled in favour of the appellant. Though the appellant claimed that they have submitted various records however there is no particular records which show that incidence of service tax initially borne by the appellant was not passed on any other person. The fact remains that the sub contractor has charged the service tax and the same was reimbursed by the appellant to the sub contractor. The provision of the service tax was ....... + More
- 2019 (11) TMI 565
Nature of activity - service or not - Levy of service tax - service of erection and installation are provided by the foreign party to the appellant - reverse charge mechanism - N/N. 19/2003-ST dated 21/03/2003 - HELD THAT:- The entire transaction is of purchase of imported bubble wrap machines. The appellants have discharged custom duty considering the total value of machine shown in the invoice. There is no separate charge for service such are erection and installation of such machinery. On the total value of the invoice, Custom duty was paid. The erection and installation is incidental to the sale/supply of the machine. Therefore, the entire transaction is of sale and purchase of the machine and, hence, no service is involved. Therefore, no Service Tax can be demanded. Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 564
Recovery of the service tax amount collected from the customer - Invocation of Section 73A of the Finance Act, 1994 - recovery sought on the ground that the appellant had claimed the benefit of N/N. 24/2007-ST dated 22.05.2007 and the benefit of the said notification was availed by the appellant, was not passed on to the customer - HELD THAT:- It is an admitted fact on record that the disputed amount in question was paid back by the appellant to its customer subsequent to issuance of the show cause notice. Thus, under such circumstances, it cannot be said that the provisions of Section 73A ibid should be applicable for recovery of such amount, considering the same as a collection of excess service tax from the customer. Under an identical situation, this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR VERSUS VINAYAK AGROTEC....... + More
- 2019 (11) TMI 563
Waiver of penalty - short paid service tax paid later - intent to evade or not - HELD THAT:- Nowhere the appellant has made any defence regard the short fall of service tax paid by them. If the same is not detected by the Revenue, the said short fall remains a short fall of service tax which the appellant would have enjoyed - As the short fall has come during the investigation itself and the appellant did not explain the reasons and kept lingering on the matter for two years, in that circumstance, melafides of the appellant have been established by the Revenue. The appellant is not entitled for any relief from this Tribunal - Appeal dismissed.
- 2019 (11) TMI 562
100% EOU - Refund of service tax - export of services - applicability of Section 11B of the Central Excise Act, 1944 - HELD THAT:- This Bench after considering the plea of the Ld. Consultant Shri. S. Ramachandran that the payment of service tax in respect of Renting of Immovable Property was by mistake however, concluded, that the refund could not be claimed under Rule 5 ibid - It is surprising to note as to how the adjudicating authority chose to read conclusion as direction, which was not there, in her order dated 31.10.2017 as to the filing of a separate claim under Section 11B ibid. She has also gone farther, when she concludes that clause (ec) to Explanation B of Section 11B ibid would come to the rescue of the appellant. The appellant consciously filed its application for refund under Rule 5 ibid and even though there were no such d....... + More
- 2019 (11) TMI 561
Demand of service tax - works contract service - reverse charge mechanism - demand of interest and penalty - HELD THAT:- The revenue could not establish the said service as ‘works contract service’ throughout the proceedings - the demand as also interest and penalty set aside related to confirmation of service tax on ‘works contract service’ under reverse charge mechanism from the appellant who is service receiver. The document produced before the Original Authority established that the said service was ‘repair and maintenance service’. The issue is no more res-integra and stands settled by this Tribunal’s decision in the case of SIEMENS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PONDICHERRY [2013 (2) TMI 609 - CESTAT CHENNAI] wherein it was held that if the adjustment of excess paid amount is de....... + More
- 2019 (11) TMI 539
Exemption from service tax - Works Contract Services or Commercial or Industrial Construction Services? - construction of railway lines for private parties and construction of private roads - case of the revenue is that both CICS and WCS exclude railways or roads - Demand of interest and penalty as well - HELD THAT:- In respect of one of the appeals herein viz., M/S UNITED RAIL ROAD CONSULTANTS PVT LTD VERSUS COMMISSIONER OF CUSTOMS CENTRAL EXCISE & SERVICE TAX, HYDERABAD-III [2019 (6) TMI 1409 - CESTAT HYDERABAD] has decided that the charging section of works contract under section 65(105)(zzzza) of the Finance Act, 1994 excludes railways. Since it does not qualify the term by saying “railways for public carriage or railways by the Government”, it was held that the term “railways” includes any form of railways....... + More
- 2019 (11) TMI 538
Refund of service tax - time limitation - refund claims has been rejected as time barred filed under N/N. 27/2012-CE N.T dated 18.06.2012 - period April 2016 to June 2016 and January 2016 to March 201 - refund rejected on the ground that the foreign remittances were received prior to one year from the date of filing the refund claims are barred by limitation in terms of the Notification - HELD THAT:- In the cases, in hand, the refund claim required to be filed on quarterly basis in terms of Rule 5 of CCR, 2004. Therefore, the appellant were required to file refund claims within one year from the date when the quarter ends and the same view was taken by this Tribunal in the case of M/S. NEO GROUP SERVICES INDIA PVT LTD VERSUS COMMISSIONER OF CENTRAL TAX, BENGALURU EAST [2018 (11) TMI 978 - CESTAT BANGALORE]. The refund claims filed by the appellant are in time - Appeal allowed - decided in favor of appellant.
- 2019 (11) TMI 537
Refund of service tax - benefit of N/N. 41/2007-ST dated 06.10.07 - rejection of refund on the ground that the appellant has not exported the goods, the services for which the refund claim has been filed i.e. transportation of goods from their factory premises to the port of export and terminal handling charges at port are not port services and the documents produced by the appellant are not in their name for availment of Cenvat credit. Denial of refund on the ground that the appellant has not produced the proof of export - HELD THAT:- As it is a case of revenue that appellant has not exported the goods, in that case, the adjudicating authority was not required to go into the issue no. 2 & 3 and straight way could have rejected the refund claim as they have not exported the goods, but it is evidence on record that the appellant has fi....... + More