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- 2021 (7) TMI 1026 - CESTAT NEW DELHI
Classification of services - GTA services or not - appellant is transporter of timber/firewood for forest Department of Government of Madhya Pradesh - cartage Challan equivalent to the consignment note or not - period 2013-14 to 2015-2016 - HELD THAT:- The carting Challan in this case is only for internal control of forest department. Such carting Challan is not equivalent to a consignment note which is issued by the transporter. The consignment note is a negotiable instrument and the transporter is bound to deliver the goods to bonafide holder of title, as mentioned in the consignment note. Such element of ‘consignment note’ are absent in the ‘carting Challan’. The carting Challan is not equivalent to consignment note. Accordingly, the appellant has not rendered the services as per the definition of GTA under the Finance Act - appeal allowed - decided in favor of appellant.
- 2021 (7) TMI 1001 - CESTAT AHMEDABAD
Benefit of abatement of 76% under N/N. 01/2006-S.T., 21/97-S.T., 39/97-S.T., 40/97-S.T., 12/2001-S.T., 8/2003-S.T., 12/2003-S.T., 18/2003-S.T., 19/2003-S.T., 2/2004-S.T., 9/2004-S.T. and 10/2004-S.T. - appellant had availed the Cenvat credit in respect of GTA Service - HELD THAT:- The same issue for previous period in the appellant’s own case came before this Tribunal in M/S NJ DEVANI BUILDERS PVT. LTD VERSUS C.S.T. & S.T. -AHMEDABAD [2019 (6) TMI 213 - CESTAT AHMEDABAD] and this Tribunal has held that the appellant is entitled for the abatement Exemption Notification subject to reversal of Cenvat Credit. This very order was challenged before the Hon’ble High Court in MESSRS NJ DEVANI BUILDERS PVT. LTD VERSUS UNION OF INDIA [2020 (11) TMI 798 - GUJARAT HIGH COURT] wherein the Hon’ble Gujarat High Court set aside the ....... + More
- 2021 (7) TMI 982 - CESTAT NEW DELHI
Condonation of delay in filing appeal before Commissioner (Appeals) - appeal was filed beyond the period prescribed under section 85 (3) of the Finance Act - Rejection of refund claim - HELD THAT:- Initially the appellant was advised to file a representation before the Chief Commissioner against the order dated 26.10.2009, but subsequently, the counsel who was contacted, after the Range Officer informed the appellant that no appeal had been filed before the Commissioner (Appeals), advised that an appeal was required to be filed before the Commissioner (Appeals), that an appeal was filed on 13.05.2010. We are satisfied from the averments made in the delay condonation application that the appellant was prevented by sufficient cause from filing the appeal before the Commissioner (Appeals) within a period of three months from the date of rece....... + More
- 2021 (7) TMI 931 - CESTAT DELHI
GTA Services - service of transport operator or owner and not of any transport agency for inward transportation of raw material to their factory - adjudicating authority took the ground that there was no existence of ‘goods transport agency’ - reverse charge mechanism - HELD THAT:- There is no such provision in the scheme of Acts and Rules permitting assumption of facts to be made by the Adjudicating Authority, without reference to the facts on record. In this view of the matter, the basic fact and /or the requisite for charging service tax under GTA service i.e. service being provided by ‘goods transport agency’ as defined, nor existence of consignment note being there, the demand has been raised improperly as well as whimsically. The penalties imposed are also set aside - the appeal is allowed.
- 2021 (7) TMI 899 - CESTAT CHENNAI
Refund of CENVAT credit - Certain FIRCs were addressed to unregistered premises - certain FIRCs were not produced can be considered as Export Turnover or not - invoices addressed to unregistered premises - non-compliance with the conditions 2(g) and 2(h) of N/N. 27/2012-CE(NT), dated 18.06.2012 - ceiling of the provisions of section 142(3) of CGST Act, 2017 - amount of refund claimed in ST-3 return, not debited - HELD THAT:- The appellants have not been able to explain the required documents before the refund sanctioning authority. The learned counsel has submitted that they would be able to produce and also explain in regard to necessary documents if they are given further chance. The matter requires to be remanded to the refund sanctioning authority - Appeal allowed by way of remand.
- 2021 (7) TMI 898 - CESTAT CHENNAI
Refund of credit availed on the service tax paid on input services - Information Technology Services and also export of same service - reverse charge mechanism - period July, 2013 to September, 2013 - refund denied on the ground that the said credit has not been shown in the ST-3 returns - HELD THAT:- It is not in dispute that the appellants are eligible for credit to the tune of ₹ 16,93,074/- on the service tax paid by them under reverse charge mechanism on input services availed by them. The only reason for denying the credit is that they have not reflected such availment of credit in ST-3 returns for July, 2013 to September, 2013 - The services having been exported, the service tax paid on the input services used for export of services should be refunded to the appellants as per Rule 5 of Cenvat Credit Rules, 2004. The appellants....... + More
- 2021 (7) TMI 887 - CESTAT CHANDIGARH
SSI Exemption - branded service or not - service falling under threshold limit or not - Cable operator service - benefit of N/N. 6/2005-ST dated 1.03.2005 - exemption denied on the ground that appellant provided Branded service - HELD THAT:- Similar issue decided in the case of MS BLUE STAR COMMUNICATION, MS EK ONKAR DIGITAL SERVICES, MS SHARMA CABLE, MS EK ONKAR ENTERPRISES, MS SHIVA CABLE VERSUS C.C.E. & S.T. -LUDHIANA [2019 (2) TMI 1385 - CESTAT CHANDIGARH] where it was held that appellants are entitled for exemption under Notification No.6/2005-ST dated 01.03.2005 and Notification No. 33/2012-ST dated 20.06.2012, extended period of limitation is not invokable, and appellants are liable to pay service tax on the gross value of services received by them and is entitled to avail cenvat credit of service tax paid on the amount remitte....... + More
- 2021 (7) TMI 854 - CESTAT NEW DELHI
Short payment of service tax - Service Tax Voluntary Compliance Encouragement Scheme, 2013 - abatement sought for material components - availment of Composition Scheme - substantial false declaration or not - HELD THAT:- The calculation of tax short paid, as made by the ld. Commissioner in the impugned order, is not due to any mis-declaration or false declaration under VCES. Ld. Commissioner has categorically observed that difference in tax liability is mainly due to interpretation and change in calculation of service tax, therefore, the mistake of the respondent/assessee in the declaration is bona fide and there is no malafide on their part. In view of the decision of the Larger Bench in the case of M/S BHAYANA BUILDERS (P) LTD. & OTHERS VERSUS CST, DELHI & OTHERS. [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)], the respondent is not....... + More
- 2021 (7) TMI 814 - CESTAT NEW DELHI
Interest on delayed refund (of pre-deposit) - relevant time - to be granted from the date of communication of the final order of the Tribunal till the date of grant of refund, or from the date of pre-deposit? - HELD THAT:- The issue is no longer res integra and in the case of M/S J.K. CEMENT WORKS VERSUS COMMISSIONER, CENTRAL EXCISE, CENTRAL GOODS AND SERVICE TAX, UDAIPUR [2021 (3) TMI 123 - CESTAT NEW DELHI], wherein under the similar facts and circumstances, this Tribunal following the ruling of the Hon’ble Supreme Court in the case of SANDVIK ASIA LIMITED VERSUS COMMISSIONER OF INCOME-TAX AND OTHERS [2006 (1) TMI 55 - SUPREME COURT] as well as of the Hon’ble Allahabad High Court in the case of HELLO MINERALS WATER (P) LTD. VERSUS UNION OF INDIA [2004 (7) TMI 98 - ALLAHABAD HIGH COURT] held that interest is payable from the ....... + More
- 2021 (7) TMI 735 - CESTAT MUMBAI
Valuation - life insurance business - treatment of surrender value’ exacted, on premature exit, from holders of ‘unit linked insurance policy (ULIP)’as consideration for provision of service - whether the ‘surrender charge’ is consideration for a service that comes within the ambit of the levies pertaining to the insurance sector during the period of dispute? HELD THAT:- It is common ground that upon an insured ceasing to comply with the obligation to pay the premium at stipulated intervals, the policy is deemed to be surrendered and the holder entitled to ‘surrender value’ representing the portion of the receipts that had been invested in the appropriate funds. There is also no dispute that the amount disbursed is lesser than the value of the funds on the date of surrender. The proposition of Lea....... + More
- 2021 (7) TMI 731 - CESTAT CHENNAI
Refund of Cenvat Credit - Air Travel Agency Services - Short-term Hotel Accommodation Services - Cleaning Services - Pest Control Services - Krishi Kalyan Cess - HELD THAT:- Though, the authority below has denied the credit availed on these services alleging that these services have no nexus with the output services, the department has no case that the services were not availed by the appellants for the purpose of providing output services. As also, there is no evidence to establish that these services were used for personal consumption - From the documents furnished, it is convincing that these services have been availed by the appellants for export of their output services - Further, this issue is covered by the decision of the Tribunal in the appellant’s own case M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD. VERSUS COMMISS....... + More
- 2021 (7) TMI 661 - CESTAT BANGALORE
Refund claim of input service tax credit - input service or not - Erection, Commissioning & Installation Services - denial of refund on the ground that the definition of input service exclude service portion in executing of works contract service, including services listed under clause (b) of Section 66E of Finance Act, 1994, insofar as used for construction of executing of works contract services of building of civil structure or part thereof - HELD THAT:- The Commissioner(Appeals) has not properly appreciated the definition of input service as provided in Rule 2(l) of CENVAT Credit Rules, 2004. On perusal of definition of 'input service', it is found that the credit which has been excluded from the definition of input service under clause 2(A) are (a) construction or execution of works contract of a building or a civil struc....... + More
- 2021 (7) TMI 633 - CESTAT BANGALORE
Refund of service tax paid - refund arose as a consequence of introduction of Section 104 of the Finance Act w.e.f. 31.03.2017 - rejection on the ground of non-submission of necessary documents - requirements under Section 11B of the Central Excise Act, 1944 as made applicable to Finance Act, 1944 vide Section 83 of the Act not complied with - N/N. 41/2016 dated 22.09.2016 - HELD THAT:- N/N. 41/2016 dated 22.09.2016 has exempted taxable service provided by the State Government Industrial Development Corporation/Undertakings to industrial units by way of granting long term lease on industrial plot from so much of service tax leviable thereon under Section 66B of the said Act, as is leviable on the one time upfront amount payable for such lease. Vide Section 104 (1), exemption was provided from said services for the period from 01.06.2007 t....... + More
- 2021 (7) TMI 629 - CESTAT CHENNAI
Maintainability of appeal - non-compliance of pre-deposit under Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - It is argued by the Ld. Consultant that amount deposited by the appellant towards the service tax should be considered as payment towards mandatory predeposit and the appeal ought to have been considered on merits - HELD THAT:- The appellant has not been given the benefit of Sabka Vishwas Scheme as there was delay in payment of the service tax under the said scheme. Since the amount paid by the appellant is towards the service tax confirmed under the Order-in-Original dt. 24.06.2019, the said payment ought to have been considered towards compliance of pre-deposit having been made before the appeal is taken up for hearing. The Commissioner (Appeals) has issued reminders to the appellant....... + More
- 2021 (7) TMI 628 - CESTAT BANGALORE
Refund of unutilised cenvat credit of service tax - export of services - receipt of convertible foreign excahnge through third party - rejection of refund on the ground of non-fulfilment of conditions prescribed under Rule 6A of Service Tax Rules, 1994 - ineligible input services or not - HELD THAT:- The appellant have entered Sourcing Service Agreement with WMGS Services Ltd. Located in British Virgin Island and WMGS Netherlands located in the Netherlands and as per the JV agreement, the appellant was directed to raise the invoices in the name of WMGS China JV and accordingly the appellant have been raising invoices directly to WMGS China JV. Further after perusing the terms of both the agreements placed on record by the appellant, it is found that the appellant is providing services to WMGS BVI and WMGS Netherlands in accordance with th....... + More
- 2021 (7) TMI 606 - CESTAT CHANDIGARH
Maintainability of appeal - time barred in terms of Section 85(3) of the Finance Act, 1944 - HELD THAT:- As the issue has already been decided by this Tribunal in the case of M/S DEEP COMMUNICATION AND M/S LALLI COMMUNICATION, M/S CHIK SHACK CABLE NETWORK, M/S DJ COMMUNICATION, M/S UNITED COMMUNICATION VERSUS C.C.E & S.T. LUDHIANA [2021 (3) TMI 1227 - CESTAT CHANDIGARH] where it was held that if we consider the time consumed by the appellants before the Hon’ble High Court is to be excluded than also appeals have been filed before the Ld. Commissioner (Appeals) beyond the time limit prescribed in statute, in that circumstances, I hold that the appeals filed by the appellants are highly time barred. The appeals are rightly dismissed as time barred by the Ld. Commissioner (Appeals) - Appeal dismissed.
- 2021 (7) TMI 573 - CESTAT CHENNAI
Refund of service tax - Service Tax was erroneously paid by SIPCOT on developmental charges - rejection on the ground of time limitation - HELD THAT:- The issue involved is no more res integra as the same issue has been dealt with by the Chennai Bench of the CESTAT in M/S. DYNAMIC TECHNO MEDICALS PVT. LTD. VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE [2021 (4) TMI 888 - CESTAT CHENNAI] where reliance placed in the case of Teknomec Vs. CGST & CE, Chennai [2019 (7) TMI 1416 - CESTAT CHENNAI], where this Tribunal held that when claim has been filed within reasonable time from the date when appellant received intimation from SIPCOT, the refund has to be granted. The Adjudicating Authority shall ascertain whether the date of refund application satisfies the time limit under Section 11B of the Central Excise Act, 1944 and if so, then the refund shall be issued with consequential benefits - appeal allowed by way of remand.
- 2021 (7) TMI 415 - CESTAT NEW DELHI
Levy of service tax - Agreeing to the obligation to tolerate the Act - providing maintenance services to the appellant - declared services - whether the Machine Availability clause of agreement dated 17.12.2014 creates the service tax liability upon the appellant? - HELD THAT:- It is clear from the facts that there is no denial on the part of the department, as is apparent from para 4 of the Show cause notice to the fact that the appellant/ service recipient, has already suffered service tax on the invoices raised by M/s. SGSL from time to time. The credit note issued by M/s SGSL, service provider is a refund of excessive amount paid by the appellant on account of defined service to be provided by M/s SGSL. It does not represent any service rendered by the appellant to M/s SGSL so as to attract any service liability of the appellant. The ....... + More
- 2021 (7) TMI 379 - CESTAT KOLKATA
Refund of service tax - export of goods made under Bills of Export - denial on the ground that the conditions as prescribed in Clause (i) of Paragraph 3 of the Notification No.41/2012-ST dated 29.06.2012 has not been complied with - non-submission of certificate of the Chartered Accountant as prescribed in sub-clauses (A) & (B) - HELD THAT:- The learned Deputy Commissioner of Service Tax has passed a detailed order incorporating the shipping Bill number, date, name of the service provider, invoice number, date etc.etc.. In short he has gone through all the documents and has discussed the conditions of the Notification or eligibility of the refund claim and after making a point-wise observation, has finally sanctioned the refund - The learned Commissioner(Appeals) could have called for the copy of the Cross Objection filed by the asses....... + More
- 2021 (7) TMI 374 - CESTAT BANGALORE
Refund of service tax paid - claim hit on the ground of time limitation - allegation also that appellant did not produce documentary evidence to prove that the burden of service tax paid by him had not been passed on to their customers - principles of unjust enrichment - HELD THAT:- There is no dispute regarding the taxability of the impugned activity. Further, even before the issuance of the said Circular by the Board, the Tribunal Chennai in the case of Indian Hume Pipe Company Limited vs. CST, Trichy [2008 (7) TMI 71 - CESTAT, CHENNAI] has held that the impugned activity is not taxable under the category of “Erection, Commissioning and Installation Service”. Unjust enrichment - HELD THAT:- The appellant has placed on record the letters issued by both the service recipient i.e., BSNL and TATA Teleservices in Annexure - D and....... + More