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Service Tax - Case Laws
Showing 101 to 120 of 133 Records
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2014 (3) TMI 231 - CESTAT AHMEDABAD
Demand of service tax - Receipt of Commission - Denial of the benefit of small scale exemption under Notification No.6/2005-ST dt. 01.03.2005 - Non fulfillment of the conditions contained in para 2 of the exemption notification - Held that:- appellant has admitted that the service tax was leviable during the relevant period. However, it was argued that the benefit of value based exemption Notification No.6/2005-ST dt. 03.01.2005 was admissible to the appellant during the year 2006-07 and the differential service tax for the services provided in excess of ₹ 4 lakhs, provided during the financial year 2006-07 has already been paid by the appellant. The exemption limit of ₹ 4 lakh was enhanced to ₹ 8 lakhs w.e.f. 01.04.2007 vide Notification No. 4/2007 dt. 01.03.2007. It is observed that the total amount received towards services provided was only ₹ 6,58,100/- during 2007-08 which was less than the exemption limit of ₹ 8 lakhs. Prima-facie from the above facts it is evident that appellant was eligible to the exemption during the financial year.
Show cause notice dt. 09.06.2010 issued to the appellant that it is not brought out anywhere that appellant has not fulfilled the conditions specified under exemption Notification No.6/2005-ST. It is also observed that appellant in their defense reply before the adjudicating authority claimed the benefit of exemption under Notification No.6/2005-ST dt. 01.03.2005. In view of the above appellant was not put to notice during the adjudicating proceeding to explain as to how the conditions specified in exemption Notification No.6/2005-ST were not fulfilled.
Regarding duty liability for the period 2006-07 demand of duty over and above the exempted limit of ₹ 4 lakhs for the financial year 2006-07, is required to be discharged by the appellant alongwith the interest applicable - Penalty is also set aside - Decided partly in favour of assessee.
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2014 (3) TMI 230 - CESTAT MUMBAI
Waiver of pre deposit - Demand of service tax - Penalty u/s 78 - Service of providing meals to school students under the Mid-day Meal Scheme - Whether service amounts to Outdoor Catering Services - Held that:- Considering a small amount of consideration received by the appellant towards the labour involved in supplying the mid-day meal, especially, when the transaction is mainly one of sale, the appellant has made out a prima facie case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.
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2014 (3) TMI 229 - CESTAT KOLKATA
Waiver of pre-deposit - GTA service or Cargo Handling Service - Penalty u/s 77 & 78 - Held that:- as per work order dated 06.06.2005 and 26.07.2005 issued by M/s. Tayo Rolls Ltd.(purchase section)in favour of the Applicant namely M/s. Radha Transport Company, gives the discretion of job as ‘transportation of iron ore’ from Tatanagar Goods Shed to M/s. Tayo Rolls Ltd.. Rate is including of loading and unloading from wagon. Note- The above rates include demurrage and warfrage charges. It is thus evident from impugned work order that transportation of iron ore is the principal activity of the Applicant and for the purpose of said transportation they are also doing the job of loading and unloading from the wagon - prima facie Applicant was providing transportation services, which is not covered within the purview of ‘Cargo Handling Services’. Hence, the Applicant has made out a prima facie case for waiver of pre-deposit of entire amount of Tax and penalty. Accordingly, pre-deposit of Tax and penalties is waived till the disposal of the Appeal - Stay granted.
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2014 (3) TMI 228 - CESTAT MUMBAI
Denial of refund claim - Business Auxiliary Services - Eligible for the benefit of Notification No. 13/2003-S.T. - Held that:- The lower appellate authority has come to the conclusion that the appellant is eligible for benefit of Notification No. 13/2003-S.T. as mutual funds are goods as defined in Section 65(50) of the Finance Act. However, the said order does not take into account the amendment made to the said notification vide Notification No. 8/2004, dated 9-7-2004. Vide Notification No. 8/2004, the scope of exemption has been restricted to the services rendered by a Commission Agent in relation to the sale or purchase of agricultural produce. In other words, in respect of Commission Agent dealing with mutual funds, the benefit of Notification No. 13/2003 would apply only for the period prior to 9-7-2004. Since in the present case, the refund pertains to the period July, 2003 to September, 2004 as mentioned in the show-cause notice, it has to be held that for the period from 9-7-2004 to September, 2004, the benefit of Notification No. 13/2003 would not be available to the appellant and therefore, if any service tax has been paid on services rendered during the said period, the appellant will not be eligible for the benefit of refund.
Appellant is eligible for refund of Service Tax period prior to 9-7-2004 in accordance with law. However, for the period subsequent to 9-7-2004, the appellant would not be eligible for any refund. Therefore, we remand the matter back to the original adjudicating authority to consider afresh the appellant’s claim for eligibility to refund in respect of the Service Tax paid for the period 9-7-2004 to September, 2004 after giving a reasonable opportunity to the appellant of being heard - Decided in favour of Revenue.
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2014 (3) TMI 227 - CESTAT NEW DELHI
Denial of CENVAT Credit - Tax paid on reverse charge mechanism - Consulting engineer services - Waiver of pre deposit - Held that:- during the relevant period, the Revenue itself was insisting on payment of service tax on reverse charge basis in terms of the provisions of Rule 2(1)(d)(iv) - no Service Tax was payable before the introduction of Section 66A w.e.f. 18-4-2006. As such, the payment of Service Tax by the appellant prior to the said declaration of law and taking of credit of the said service tax so paid cannot be held to be against the law so as to deny them the credit - said proposal of denial of credit in the show cause notice was on altogether different ground, which, in any case stand accepted by the Adjudicating Authority. He cannot move from the allegation made in the notice and cannot adopt a different ground for denial of the credit, according to the well settled law - Decided in favor of assessee.
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2014 (3) TMI 226 - CESTAT MUMBAI
Penalties under Sections 76, 77 and 78 - Value of spare parts were not included in the consideration received for repair services and service tax liability had not been discharged on the value of such spare parts - Circular No. B.11/1/2001-TRU, dated 9-7-2001 - Held that:- From the reading of the above circular, it would appear that even in a case of composite transaction involving sale of goods and rendering of service, if the bill/invoices issued clearly shows payment of sales tax/VAT on the spare parts, then the value of such spare parts would not be includible in the gross consideration received for rendering of service. The Commissioner has not considered these submissions made by the appellant and also the clarifications issued on the matter.
Therefore, we are of the considered view that the matter has to go back to the adjudicating authority for fresh consideration. First of all, all the transactions involving only sale of spare parts should be excluded for the purpose of computation of service tax demand. Secondly, even in a case where the transaction involves both sale of spare parts and also rendering of service, the value of sale of spare parts should be excluded if sales tax/VAT liability has been discharged on such sales as is evident from the invoices/bills issued in this regard - Decided in favour of assessee.
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2014 (3) TMI 192 - CESTAT CHENNAI
Waiver of pre deposit - Demand of service tax - Man Power Recruitment or Supply Agency - Held that:- Applicants obtained licence under the Contract Labour (Regulation & Abolition) Act. Prima facie, it appears that the applicant is a contractor and supplied the labourers to M/s.TAFE, which would come within the definition of "Man Power Supply" - all the applicants are individual persons and the demands except in two cases are barred by limitation - we direct the applicants to pre-deposit the amounts - Upon making deposit, predeposit of balance amount of tax along with interest and penalty is waived and its recovery is stayed during pendency of the appeal - Conditional stay granted.
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2014 (3) TMI 191 - CESTAT CHENNAI
Refund of cenvat credit due to export - in the case of mPortal India Wireless Solutions (P) Ltd. Vs CST [2011 (9) TMI 450 - KARNATAKA HIGH COURT], It has been decided that refund cannot be refused for the reason that the respondent had not taken registration before taking cenvat credit. Since the respondent was not providing any taxable service, they were not required to get registration. - refund to be allowed.
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2014 (3) TMI 190 - CESTAT CHENNAI
Waiver of predeposit - Valuation - inclusion of value of materials used in repair work - Held that:- the applicant satisfied all the conditions of Notification No.12/2003-ST, since Revenue has not come in appeal against the finding given by the Commissioner. In the previous case of the same assessee [2013 (11) TMI 641 - CESTAT CHENNAI] for a different unit, we called for pre-deposit of about 10% because the applicant did not produce documents to justify submissions before the lower adjudicating authority. In the instant case, no such observation is seen in the adjudication order. - stay granted.
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2014 (3) TMI 189 - CESTAT CHENNAI
Demand of service tax - Advertisement Agency Service - Held that:- applicant was carrying out the work for the advertising agency. The Commissioner (Appeals) observed that the invoices and the payment receipts are not related to each other. It is also observed that the applicant had not produced the invoices and payments receipts for it. Hence, prima facie, we are of the view that the Board’s circular is not applicable in this case. In any event, if they are not producing the documents of payment receipt and other necessary documents then it cannot be shifted to the advertising agency - Conditional stay granted.
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2014 (3) TMI 188 - CESTAT BANGALORE
Waiver of pre deposit - Penalty u/s 76 - Application of Section 80 - Whether the penalty imposed on the assessee under Section 76 is liable to be sustained - Held that:- entire amount of service tax and education cesses was paid with interest in October 2011 after the original authority adjudicated upon the show-cause notice - provision of sub-section 2 of Section 80, prima facie, inapplicable. In the result, the prayer for waiver and stay in respect of the penalty cannot be acceded to - Stay denied.
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2014 (3) TMI 144 - CESTAT KOLKATA
Imposition of equivalent penalty u/s 78 - Benefit of Notification No.32/2004-ST dated 03.12.2004 - Abatement of 75% from the gross taxable value of the services - Held that:- applicant had produced necessary declaration in support of their claim of abatement under Notification No. 32/2004-ST dated 03.12.2004, as amended - original documents are required to be scrutinized, for verifying their claim of abatement. In the result, the matter be remanded to the original authority for consideration of these evidences and examine the eligibility of the benefit of Notification No. 32/2004-ST dt. 3.12.2004 - Decided in favour of assessee.
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2014 (3) TMI 143 - CESTAT KOLKATA
Waiver of predeposit of service tax - Imposition of equal amount of penalty imposed under Section 78 and penalty imposed under Section 76 - Held that:- Applicant had received the service of M/s. Fels Cranes Pvt. Ltd., Singapore, an overseas company, against a contract for designing, manufacturing, supplying, installing, testing and commissioning of 4 numbers of Rubber Tyred Cranes - Prima facie the entire contractual value had been assessed to customs duty, considering the same as goods. Consequently, even if it is considered as ‘works contract’ comprising the value of goods as well as the services, the principle of vivisecting the contract, at this stage, cannot be considered as the issue had been referred to the Larger Bench. Besides, we find that the Applicant Company being a Government of India Undertaking and the issue, prima facie, being not settled, the Applicant could able to make out a case for total waiver of the dues adjudged. Consequently, predeposit of all dues adjudged is waived and its recovery stayed during pendency of the Appeal - Stay granted.
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2014 (3) TMI 142 - CESTAT BANGALORE
Denial of cenvat credit - Outdoor Catering Service received in the factory canteen and used for supplying food to the workers/employees – Waiver of Pre-deposit – Held that:- The food supplied to the workers/employees was subsidised to the extent of 50% - Following Commissioner vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] - subsidy in the matter of serving food to workers by making use of outdoor catering service was held to be immaterial insofar as the manufacturer’s claim of CENVAT credit on the service was concerned - the appellant directed to pre-deposit an amount of Rupees One lakh as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2014 (3) TMI 141 - CESTAT AHMEDABAD
Waiver of the pre-deposit - Demand of service tax - Cargo handling services - Held that:- contract talks about transportation of goods as well as loading and unloading of the goods either at the stock yard or at the godowns. Since the entire issue needs to be appreciated from the evidence on record and the findings recorded by the lower authority, we are of the view that the appellant has not made out a prima facie case for the complete waiver of the pre-deposit of the service tax liability confirmed by the lower authorities - Conditional stay granted.
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2014 (3) TMI 140 - CESTAT NEW DELHI
GTA services can be treated as output service or not – Suo moto credit allowed or refund u/s 11B to be filed - Waiver of Pre-deposit – Held that:- The show cause notice itself mentions that the recredit had been reflected in the ER-I Return as Cenvat credit statement had been filed with the ER-I Return and that it is from this statement that the department came to know about the recredit - the appellant have declared the fact of re-credit in their ER-I Return and this return was available with the department - the demand prima facie appears to be time barred - Pre-deposit of cenvat credit demand, interest and penalty waived till the disposal – Stay granted.
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2014 (3) TMI 118 - CESTAT MUMBAI
Waiver of penalty u/s 80 - Business Auxiliary Service - Ignorance of law - Commissioner (Appeals), gave the benefit of ignorance of law as respondent were not aware that they are under the net of service tax - Held that:- Commissioner (Appeals) has relied on various judicial pronouncements of the Tribunal, where the benefit of Section 80 was given to the assessee for their act which shows that assessee was not having a malafide intention to evade payment of service tax. In this case also, the respondent have said that they were not having knowledge that they are required to pay service tax as they were under the belief that service tax is to be paid by Airtel. In these circumstances, benefit of ignorance of law goes in favour of the respondent and as per Section 80 of the Finance Act, 1994, the respondent has been able to prove beyond doubt that there was no malafide intention - Decided against Revenue.
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2014 (3) TMI 117 - CESTAT MUMBAI
Refund / rebate claims - Period of limitation - Notification No. 11/2005-ST - services provided in India to international inbound roamers registered with the Foreign Telecom Network Operator but located in India at the time of providing of such services treating the supply of services as export of services under Export of Services Rules, 2005. - Held that:- In view of the earlier decision [2013 (7) TMI 178 - CESTAT MUMBAI] appellant should be eligible for refund of the service tax paid on input services used in or in relation to rendering of the output service which has been exported, under Rule 5 of the Service Tax Credit Rules, 2005, read with Notification 11/2005-ST. Therefore, the appellant would be eligible for the refund of service tax paid on input services.
Time bar issue - Held that:- the lower adjudicating authority is directed to verify the date of payment of service tax in respect of seven refund claims pertaining to the period April 2007 to April 2009 and verify whether the refund claims have been filed beyond the period of one year from the date of payment of service tax and if so, the appellant would not be entitled for any refund at all - matter remanded back.
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2014 (3) TMI 116 - CESTAT BANGALORE
Waiver of pre deposit - Demand of service tax - Consulting engineers service - Held that:- prime consultant, to whom the appellant provided ‘consulting engineers service’ and from whom the consideration for such service was collected, has declared that they collected service tax from NHAI and deposited the same to the Central Government in respect of the service rendered from 2004 to 2007 - prima facie case found for the appellant - Stay granted.
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2014 (3) TMI 115 - CESTAT NEW DELHI
Demand of service tax - erection, commission and installation of service - Held that:- erection, installation service shall be brought into tax when such service was dominate in nature. No doubt there may be involvement of goods. We consider the abetment aspect at this stage subject to detailed scrutiny in the course of regular hearing - So far as management, maintenance or repair service is concerned, the discussion made by Adjudicating Authority does not grant immunity to the appellant for taxation. Mere payment of VAT does not take away the activity from the net of the taxing entry under Finance Act, 1994 - stay granted partly.
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