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Service Tax - Case Laws
Showing 101 to 120 of 181 Records
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2018 (1) TMI 564 - RAJASTHAN HIGH COURT
Principles of Natural Justice - Held that: - It will be open for the tribunal to reconsider the matter afresh after considering two decisions relied upon by the assessee and give reasons independently without influenced by the fact that this court has set aside the order on merits to maintain jurisdictional discipline since two decisions are not considered - matter remitted back for fresh consideration.
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2018 (1) TMI 563 - CALCUTTA HIGH COURT
Whether it was proper for the Tribunal to dismiss the appeal of the appellant on the ground of delay without considering the fact that the appellant was pursuing remedy before the Appellate authority of the first instance?
Held that: - since for about three years the appellant was pursuing relief from the First Appellate authority, that factor ought to have had been considered by the Tribunal while considering the appeal - the appellant’s case on the merit was not heard at the appellate stage because the First Appellate authority also passed its order ex parte. No material was produced before us from the revenue to demonstrate that the First Appellate authority had heard the appeal after issuing notice of the hearing to the appellant.
Matter remanded to the First Appellate authority for hearing afresh.
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2018 (1) TMI 562 - CESTAT NEW DELHI
Commercial or industrial construction service - Works contract service - taxability - Held that: - the contracts for construction executed by the appellant/assessee are of composite nature. These are liable to be taxed only w.e.f. 1.6.2007 under “works contract service” - No tax liability on such contracts will arise for the period prior to 1.6.2007 - The rate to be applied for the relevant period should be examined along with the taxable consideration for re-quantification. Cum duty valuation in terms of Section 67(2) benefit can be extended subject to verification of invoice/contract to the satisfaction of the provisions of Section 67(2). - matter on remand.
Repairs and maintenance of roads - Held that: - the period in the present demand is fully covered by the retrospective exemption in terms of the Section 97 of Finance Act, 2012. Accordingly, no tax liability will survive.
GTA service - Held that: - no demand has been made to the assessee/appellant on such category. In absence of any demand for this tax liability, we find that the service tax liability confirmed cannot be sustained.
Benefit of composition to the appellant post 1.6.2007 - Held that: - Though no specific form for intimation has been prescribed under 2007 Scheme for composition payment of service tax, payment of tax in terms of said provision from the beginning can be construed to be such option - these aspects require verification by the Original Authority along with re-quantification and other issues mentioned above.
Penalties - Held that: - the tax liability on composite works contract are subject matter of litigation - no penalty is leviable for such tax liability against the appellant/assessee.
Appeal allowed by way of remand.
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2018 (1) TMI 561 - CESTAT NEW DELHI
Refund claim - time limitation - Section 11B of the Central Excise Act, 1944 - unjust enrichment - Held that: - Since Section 11B ibid mandates that the refund claim has to be filed within the prescribed time limit of one year from the relevant date, such time limit has to be strictly adhered to by the statutory authorities functioning under the Central Excise statute - In this case, the refund claim was lodged within the period prescribed u/s 11B and a part thereof is beyond the period of one year. Thus, the refund application filed within one year from the relevant date should be eligible for refund to the appellant.
For granting refund within the provisions of Section 11B, doctrine of unjust enrichment will not have any application, inasmuch as, the appellant had paid the service tax on GTA service under reverse charge mechanism.
The refund claim filed by the appellant within one year from the relevant date is maintainable and eligible for refund - appeal allowed in part.
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2018 (1) TMI 560 - CESTAT NEW DELHI
Demand of service tax - difference between the value shown in the ST-3 returns vis-à-vis TDS certificate - Held that: - the appellant was not able to explain the difference in the value shown in the TDS certificate vis-a-vis the ST-3 returns filed by it before the department. Thus, the demand confirmed against the appellant for short payment of service tax of ₹ 1,23,769/- is proper and justified - that part of service tax demand is barred by limitation of time inasmuch as the show cause notice was issued beyond the normal period of limitation provided under Section 73(1) of the Act.
The matter is remanded to the original authority for quantification of the service tax liability along with interest within the normal period of limitation - Appeal allowed in part by way of remand.
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2018 (1) TMI 559 - CESTAT NEW DELHI
Refund claim - time limitation - Section 11B of the CEA, 1944 - Held that: - the refund application was filed by the appellant and decided by the authorities u/s 11B of the Act, the time limit prescribed therein should be strictly followed in entertaining the refund application - The law is well settled that the adjudicating/appellate authorities being the creature under the statute, are duty bound to obey the provisions of statute contained therein - rejection of refund justified - appeal dismissed - decided against appellant.
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2018 (1) TMI 558 - CESTAT NEW DELHI
Construction of Complex Service - residential complex for use by the staff of M/s Aditya Cement - scope of “personal use” - Held that: - the assessee-Appellants are directly engaged by the client for building the staff quarters which are for “personal use” - The Tribunal in the case of Khurana Engineering Ltd. Vs CCE, Ahmedabad [2010 (11) TMI 81 - CESTAT, AHMEDABAD] held that the staff quarters meant for use by the Income Tax Department for their employees is clearly covered by the explanation “personal use” - appeal allowed - decided in favor of appellant-assessee.
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2018 (1) TMI 557 - CESTAT NEW DELHI
Business Auxiliary Service - services rendered by the foreign based vendors - onsite services performed outside India - service rendered to one of their clients in USA - reverse charge mechanism - Held that: - the appellant’s services to the main client, which is not being taxed being exported service is facilitated and supported by various vendors. The same is covered under the tax entry “Business Auxiliary Service” - It is clear that the destination has to be decided on the basis of the place of consumption, not the place of performance of service - As such, the appellants are liable to pay service tax on the services, which they received from various vendors located outside India.
Extended period of limitation - Held that: - there is no sustainable reason to uphold the demand for extended period in absence of ingredients like fraud, suppression or willful statement with intention to evade tax. Such elements are missing in the present case - demand only for normal period upheld.
Appeal allowed in part.
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2018 (1) TMI 556 - CESTAT ALLAHABAD
Penalties u/s 77 and 78 of FA, 1994 - Valuation - inclusion of salary of the security personnel in the value of the service to be provided by security agents services or not? - Held that: - the issue was the subject matter of litigation before various higher forums. As such, it can be concluded that the issue was not free from the doubt, thus leading to a bonafide belief on the part of the appellant that no service tax is liable to be paid on the same - As soon as the Revenue pointed out the said fact to the appellant, they deposited the service tax alongwith interest - penalty cannot be invoked - appeal dismissed - decided against Revenue.
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2018 (1) TMI 533 - CESTAT MUMBAI
100% EOU - Refund of unutilized CENVAT credit - rejection on the ground that refund claims have been filed prior to the registration of the particular services exported - Held that: - reliance placed in the case of mPortal India Wireless Solutions P. Ltd.[2011 (9) TMI 450 - KARNATAKA HIGH COURT], wherein it is held that registration of a unit which exports the services is not required for claiming the refund of the cenvat credit lying in balance - appeal dismissed - decided against Revenue.
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2018 (1) TMI 532 - CESTAT MUMBAI
Penalty - non-payment of service tax - Held that: - the reason for setting aside the penalty by the appellate authority is lack of evidence reflecting upon the malafide intention of the respondent. Revenue in their memo of appeal has not produced sufficient evidence to rebut the above finding of the Commissioner(Appeals) - appeal dismissed - decided against Revenue.
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2018 (1) TMI 501 - GUJARAT HIGH COURT
Classification of services - Cargo Handling Service or Goods Transport Agency Service? - Circular:B11/1/2002-TRU dated 1.8.2002 - Circular: 186/5/2015-S.T. dated 5th October, 2015 - Negative List - abatement - Held that: - From the nature of the services rendered by the petitioners as emerging from the record, in essence and substance, the contract is a contract for transport of goods from the place of the consignor to the place of the consignee or to the port in South India from where the consignee picks up the goods. The petitioners do not carry on any activity of packing and unpacking of goods - Insofar as loading and unloading of goods is concerned, the consignor loads the goods into the container and the consignee unloads the same. It is only when the container reaches the port that it has to be unloaded and loaded on the ship, which is done by the shipping company or a cargo handling agency, which renders such services to the petitioners who act on behalf of the customers - insofar as the service of loading and unloading at the port and shipping of goods from one port to the other is concerned, the petitioners are the recipients of such service from the shipping line and/or the cargo handling service on behalf of the customers.
In the facts of the present case, while the petitioners provide the service of transportation, they do not provide any service of packing which is an essential ingredient of “cargo handling service” when transportation is a component thereof - in terms of the definition of “cargo handling service” as amended with effect from 16.5.2008, transportation was brought within its ambit, but only when transportation was in conjunction with packing (packing being the principal element) that it amounted to “cargo handling service”.
In the facts of the present case, when the petitioners satisfy the ingredients of the “goods transport agency” as defined under the Finance Act, there is no question of placing the petitioners under the amorphous category of “cargo handling service” which is no longer defined under that Act - if a service meets with a specific description, such specific description has to be given a preference over a general description - In the present case, when the service provided by the petitioner falls within the specific description of “goods transport agency”, the same has to be given preference over the general description of cargo handling service, which is not defined under the Finance Act after the introduction of the negative list regime.
Insofar as the applicability of sub-section (3) of section 66F of the Finance Act is concerned, the same is applicable where taxability of bundled service is involved.
The entire SCN is based upon a fallacious premise that even if the service provided by the petitioners is mainly goods transport agency, even if any ancillary service of loading or unloading is provided, the transaction would fall within the ambit of cargo handling service.
Petition allowed.
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2018 (1) TMI 494 - CESTAT BANGALORE
Penalties - non-payment of service tax - renting of immovable property services - Held that: - during the relevant time there was a dispute as to whether the activity of Renting of Immovable Property is subjected to levy of service tax and even today the matter has not been finally settled and the same is pending before the Apex Court - the appellant has paid the service tax along with interest in spite of the fact that he has not collected the same from his service recipient - Further there was no suppression of fact on the part of the appellant as he has shown the rent in the ST-3 returns and he had a bona fide belief that no tax was payable during the relevant period - penalty u/s 78 dropped.
The appellants have not filed the returns during the material period and therefore, is liable to pay penalty u/s 77(2) which is a residuary clause and provides that any person who contravened any of the provisions of this Chapter or any Rules made thereunder for which no penalty is separately provided in this chapter, shall be liable to a penalty which may extend to ₹ 10,000/- (Rupees Ten Thousand only).
Appeal allowed in part.
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2018 (1) TMI 493 - CESTAT MUMBAI
Classification of services - clearing and forwarding agency services - amounts received by the respondent as commission for negotiating the purchase and sale of particular items - Held that: - the issue now stands settled in their favor by the Larger Bench decision of the Tribunal in the case of Larsen & Toubro [2006 (6) TMI 3 - CESTAT NEW DELHI], where it was held that mere procuring or booking orders for the principal by an agent on payment of commission basis would not amount to providing services as "clearing and forwarding agent", within the meaning of the definition of that expression under Section 65(25) of the FA, 1994 - demand set aside - appeal dismissed - decided against Revenue.
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2018 (1) TMI 492 - CESTAT NEW DELHI
Classification of services - Cargo Handling Services - Held that: - Tribunal in the case of Singh Transporters, M/s Sardar Roadlines, Shri Govind Constructions and Jet Construction and Carriers Versus Commissioner of Customs & Service Tax, Raipur and Commissioner of Central Excise, Bhopal [2016 (9) TMI 241 - CESTAT NEW DELHI] has decided the bunch of appeal, wherein the present appellant was also a party. The Tribunal has held that the services provided to M/s. SECL pursuant to the agreement, should not fall under the taxable category of Cargo Handling Service.
Supply of tangible goods service - Held that: - the submissions of the appellant regarding payment of tax under the taxable category of Cargo Handling Service has not been discussed by the adjudicating authority - matter should go back to the original authority for a proper fact finding with regard to payment of Service Tax as claimed by the appellant.
Appeal allowed in part and part matter on remand.
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2018 (1) TMI 491 - CESTAT ALLAHABAD
CENVAT credit - Valuation - Classification of services - business of manufacture, supply and erection at site of pre-fabricated/pre-engineered steel buildings and parts thereof at its three manufacturing units - classified under Works Contract Service or under Commercial or Industrial Construction Service? - the entire case of Revenue is based on the provisions under Rule 2A of Service Tax (Determination of Value) Rules, 2006 and Composition Scheme in respect of Works Contract Service. It is the contention of the Revenue that after 01.06.2007, the services of the appellant were appropriately classifiable under works contract service only in terms of Section 65 (105) (zzzza) of the Finance Act, 1994 and that the appellant had only two options for valuation of its service and that is, either Rule 2A of Valuation Rules, 2006 of under the composition Scheme.
Held that: - the benefit of Cenvat credit on inputs cannot be denied to the appellants in the absence of any specific bar or prohibition in the Cenvat Credit Rules, 2004 or the Finance Act, 1994 or the rules made there under. We do not find any such restriction or prohibition nor the ld. D.R. has been able to show any such restriction to us. We find that in the present case, assessments were done by the appellant in accordance with the provisions.
The issue in hand is squarely covered by the decision in the case of M/s SV Jiwani Versus CCE & ST, Vapi [2014 (3) TMI 454 - CESTAT AHMEDABAD], where it was held that it is undisputed that the appellant had provided output services which covered by works contract for setting up of plant, it has to be held that cenvat credit availed by the appellant is in consonance with the provisions of the CCR 2004.
Appeal allowed.
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2018 (1) TMI 429 - CESTAT CHANDIGARH
CENVAT credit - input services - denial on the premise that during the warranty period, the appellant has provided exempted service of Repair and Maintenance - Revenue is of the view that free warranty service of Repair and Maintenance is an exempted service - Held that: - Repairs and Maintenance service is taxable service with effect from 01.07.2003 in terms of provisions of Section 65 (105) (zzg) of Finance Act, 1994 and the said activity thereafter has never been exempted by the Government by way of any notification thereof - merely because the appellant are not charging any amount towards providing this service, does not mean that the service is an exempted service - appellant is providing taxable service of Repairs and Maintenance to the customers free of cost during the period of warranty.
Whether the appellant is engaged in the activity of trading or not? - Held that: - the appellant is a branch office of their head office and they are getting the goods on stock transfer basis from head office for sale. Therefore, the appellant are selling their own goods, manufactured by them. If the person selling the goods manufactured them, in that circumstance, the appellant cannot be said that he is a trader - the appellant is not engaged in the activity of trading.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 428 - CESTAT CHENNAI
Short payment of service tax - CHA service - Business Auxiliary services - Held that: - the SCN itself gives the break-up of the charges collected, such as wharfage charge, CHA, transportation and other expenses. This being so, the contention of the ld. AR that respondent has to pay service tax on 15% of the lump sum amount is not acceptable - the Commissioner has dealt in detail the break-up of the charges as well as the amount paid to RSPL by respondents out of the amount received from M/s.NPCIL. Thus, he has found that the differential taxable value would be only ₹ 0.2 per MT - demand upheld.
Services rendered to FHB under BAS - Held that: - on verification, it was revealed that respondents had entered into agreement with FHB to act as agent of FHB for handling and distribution of a portion or all the contents of a consolidated shipment for delivery or re-consignment. Respondents have agreed to provide all such services on behalf of FHB in respect of cargo as are normally rendered by break bulk agents. Therefore the charges received by respondent for such activities from NPCIL are actually on behalf of FHB. In such circumstances, the observation of the Commissioner that the respondents have not rendered services for and on behalf of FHB does not appear to be in consonance with law - for the limited purpose of verifying and reconsidering the demand of service tax in respect of Annexure III (BAS), the matter requires to be remanded to the adjudicating authority - matter on remand.
Partly decided against Revenue and part matter on remand.
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2018 (1) TMI 427 - CESTAT NEW DELHI
Jurisdiction - power of Superintendent to finalize provisional assessment - provisional assessment finalized in November, 2006 itself - Held that: - Finalization of provisional assessments is within the powers of Assistant/Deputy Commissioner in terms of Rule 6 (6) of Service Tax Rules, 1994. The endorsements of the Superintendent, though refers to an approval by the Deputy Commissioner, cannot be considered as finalization of provisional assessment - The assessment has to be done by the Assistant Commissioner in his name and signature. The same cannot be delegated to the Superintendent.
Belated order of finalization - Held that: - the Central Excise provisions for finalization of provisional assessment do have limit of six months for such finalization form date of furnishing the particulars by the assessee - the present order has been issued much belatedly - In any case, the duty payments as already deposited by the appellants have found to be correct. There is no grievance regarding any demand for extra payment or liability that was put on appellant on such finalization.
Appeal dismissed.
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2018 (1) TMI 426 - CESTAT AHMEDABAD
Validity of SCN - Section 73(4A) of the Finance Act, 1994 - Held that: - if during the course of investigation it has been found that the assessee has first paid service tax, in that circumstance, if the amount is short paid has been paid by the assessee along with interest and penalty equal to 1% of such tax for each month for the period default continues, in that circumstance, no SCN is required to be issued to the assessee.
Admittedly, in this case the respondent has paid amount of service tax during the period of default. Therefore, the provisions of Section 73(4A) of the Act is squarely applicable to the facts of this case.
Appeal dismissed.
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