|
Advanced Search Options
Service Tax - Case Laws
Showing 121 to 140 of 29281 Records
-
2024 (4) TMI 66
Classification of service - Business Support Services (BSS) or not - services in relation to providing vehicles to associates, in course of its business activities - Business Auxiliary Services (BAS) or not - business promotion activities provided/rendered in the course of business activities - Authorised Service Station services or not - services involved in ‘servicing of vehicles’ during the ‘free warranty’ period provided/rendered during the course of its business activities - CENVAT Credit - method adopted by the appellants assessee by foregoing certain amount of Cenvat credit in respect of provision of exempted service is correct in terms of provisions of Rule 6(3A) of CCR, 2004 or not - penalty is imposable u/s 77, 78/76 of FA - period of dispute in this case relates to 01.04.2011 to 30.06.2017.
Levy of service tax in respect of services provided in relation to business promotion activities in course of appellant’s business activities - HELD THAT:- The facts of the case need to be examined along with the legal position in respect of levy on payment of service tax. From the facts of the case, it is found that the various schemes under which the discount/incentives were received by the appellants from the manufacturer of motor vehicles by way of credit notes, were essentially in the nature of schemes conceptualized by such manufacturer wherein the discount given to the ultimate consumer is borne by both the manufacturer and the appellants dealer. As per such schemes, the appellants had forwarded to the manufacturer the proposal of discount to be given to the ultimate consumer, for their consideration and approval - The discounts offered in the above manner by issue of credit note also amount to reduction in purchase price of the individual vehicles which are covered during the aforesaid volume/value of sales. In respect of reimbursements scheme, various discounts offered depending on the specific model of the vehicles being sold during a particular specified period, the appellants dealer extends such benefits to all eligible buyers of the vehicles. Hence, the said benefit of discount for incentives/ reimbursable amounts also results in reduction of net sale price of vehicles to the ultimate consumer.
In the case of RELIANCE ADA GROUP PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-IV [2016 (3) TMI 810 - CESTAT MUMBAI], the Tribunal has held that cost sharing arrangement in common services/activity as per agreed arrangement among them cannot be subjected to service tax.
CBIC has vide its circular No. 87/05/2006-ST dated 06.11.2006 has also clarified on the service tax issues relating to authorized motor vehicle dealers and service stations, which have also been discussed elaborately in the case of M/S MY CAR (PUNE) PVT. LTD. VERSUS CCE, PUNE-I [2016 (1) TMI 1155 - CESTAT MUMBAI], wherein the Tribunal has observed that the discount/commission/incentives given for sale of cars, is no way comparable to services provided to customers at "free of charge" for which reimbursement charges are given by the car manufacturer - the Tribunal have held that the incentives/ commission is solely related to trade discounts for sale of cars in accordance with the regular practice as well as the agreement/schemes that were in vogue in the industry, and these cannot be treated as compensation received by the appellant for any services provided to the car manufacturer.
Levy of service tax - Business Support services - services in relation to providing vehicles to associates, in course of its business activities - HELD THAT:- The learned Commissioner had concluded that the nature of activity of supplying vehicle to the goods transport agency, by the appellants is squarely covered by the ambit of the exemption notification No.25/2012–ST dated 20.06.2012 and by agreeing to the points submitted by the appellants, learned Commissioner had held that the said service cannot be categorized/classified under the head ‘Business Support Services’. As there is no grievance expressed by the appellants in the appeals filed, on this issue as it is not against them and there is no appeal filed by the Revenue against the dropping of the demand on this issue, there is no need to deal with the above issue.
Levy of service tax - Authorised Service Station services - Free services provided during the warranty period - HELD THAT:- The issue had also been decided by the Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, PUNE-I VERSUS SAI SERVICE STATION LTD [2017 (5) TMI 1144 - CESTAT MUMBAI], by setting aside the service tax demand it was held that the issue is no more res integra as identical issue came up before the Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, NASHIK VERSUS M/S AUTOMOTIVE MANUFACTURES LTD [2015 (12) TMI 549 - CESTAT MUMBAI] wherein the Tribunal held that service tax liability cannot be on the part of margin given by the manufacturer to the dealers being inclusive of the charges of free sale service.
Reversal of Cenvat credit in terms of Rule 6(3A) of Cenvat Credit Rules, 2004 - HELD THAT:- It is found from records of the case, in particular from the Final Audit Report No.236/2016-17 submitted by the Deputy Commissioner, Service Tax Audit-III, Mumbai, it has been specifically mentioned that the during the course of audit, the Audit wing had observed that the appellants had maintained CENVAT registers as per Service Tax registrations obtained for various premises. The Audit wing had also observed that the appellants had not availed Cenvat credit on inputs services which have been utilized only for exempted services; however, Cenvat credit has been availed common input services within each of the registered location. It is also explained by the appellants that they had not obtained service tax registration in respect of two premises, since no service is rendered in these places and they only undertake trading of vehicles for which they are discharging appropriate VAT before the jurisdictional Sales Tax Authorities - in the present case, neither there is any cursory examination of the same nor any specific findings recorded by the learned Commissioner in the impugned order. In the absence of clear finding for demand of reversal of Cenvat credit and for demand of service tax on ‘other income’ without examination of documents, it is found that the same cannot be legally sustainable.
There are no merits in the impugned order dated 13.10.2020, insofar as the adjudged demands were confirmed on the appellants, holding the activity as taxable services. Consequently, the demands of service tax and imposition of penalties confirmed in the impugned order dated 13.10.2020 is not legally sustainable.
Appeal allowed.
-
2024 (4) TMI 60
Classification of services - cargo handling services or not - providing services of loading, supervisions, weighment and inspection and inter-carting services for the raw materials and finished goods within the factory premises of M/s Essar Steel Ltd. (M/s ESL) - it was held by CESTAT that In the present case too, the service provided for the authorized operation by the appellant to the SEZ based service recipient, demand of service tax is not sustainable - HELD THAT:- The view taken by the Customs, Excise and Service Tax Appellate Tribunal is agreed upon - No case for interference has been made out. The appeal is accordingly dismissed.
-
2024 (4) TMI 36
Classification of service - classification of activities of wireline logging and perforation - period from December 2003 to November 2004 under the category of technical testing and analysis (TTA services) - HELD THAT:- The activities undertaken by the appellant do not involve testing or analysis. It is the data procured by the appellant that is communicated to ONGC which, thereafter, independently analyses the same for determining the course of action. The function required to be performed by the appellant is strictly limited to the scope of measuring different parameters related to the oil rigs, and additionally, perforation, which has no relation to testing and analysis services.
The services like wireline logging, perforation and other wireline related services involving mechanical jobs like cutting, puncture, plug/packer setting, cable splicing, etc., which were undertaken by the appellant at the time of drilling an oil well are integrally connected with the mining of oil or gas and have a direct nexus with the drilling of a well. Thus, these activities would be covered by the taxable category of ‘mining service’ w.e.f. 01.06.2007.
Reliance has been placed on the decision of the Bombay High Court in INDIAN NATIONAL SHIPOWNERS' ASSOCIATION VERSUS UNION OF INDIA [2009 (3) TMI 29 - BOMBAY HIGH COURT], wherein it was held that though the phrase ‘in relation to’ is of wide import but the context in which the same is used has to be kept in mind and that the services rendered by a person must have a direct or a proximate relation to the subject matter of the taxing entry. The Bombay High Court also held that the context in which the words ‘in relation to’ are used has to be borne in mind to examine the extent of the scope of an entry which may be of wide amplitude.
The issue that needs to be decided is whether the activity carried out by the appellant would fall under TTA services prior to 01.06.2007. According to the appellant, the said activity will be covered under the scope of mining related services under section 65 (105)(zzzy) of the Act w.e.f. 01.06.2007. The contention is that on introduction of such a service from 01.06.2007, there was no amendment in the definition of TTA services and, therefore, the activity covered under a new category of mining related services cannot be classified under the existing category of TTA services prior to 01.06.2007.
Thus, it has to be held that as the activity undertaken by the appellant w.e.f. 01.06.2007 pertains to mining services made taxable under section 65(105)(zzzy) of the Finance Act, service tax under TTA services cannot be charged from the appellant prior to 01.06.2007.
Thus, the activities undertaken by the appellant cannot be classified under ‘technical testing and analysis’ service (TTA services) as defined under section 65(106) of the Finance Act and deserve classification under ‘mining services’ made taxable under section 65(105)(zzzy) of the Finance Act w.e.f. 01.06.2007 - impugned order set aside.
Appeal allowed.
-
2024 (4) TMI 35
Levy of service tax - bowling alley income - to be included in the Negative List under section 66D(j) of the Finance Act or not - scope of ‘amusement facility’ - Extended period of limitation - HELD THAT:- Keeping in mind the definition of amusement facility under section 65B(9) of the Finance Act, what is included in the Negative List in the context of the present case is access to amusement facilities where fun or recreation is provided by means of bowling alley in amusement parks, amusement arcades, water parks, theme parks or such other places, but does not include a place within such facility where other services are provided.
The Centre provides recreational facilities to customers by way of offering bowling alley, video and other fun games, restaurant facility, sale of socks and supply of shoes. According to the appellant, the aforesaid facilities are independent of each other and are chargeable separately, depending on the services being availed by the customers. The appellant further claims that there is a clear demarcation between such recreational facilities, and that separate entry/admission fee is not collected for entry into the Centre.
The order has disallowed the appellant from being covered under the scope of section 66D(j) of the Finance Act as it provides services other than bowling alley activity also at the Centre. The definition of ‘amusement facility’ does not disqualify a facility from being covered under its scope only because services other than fun or recreation are provided in any part or place of such facility. The definition only excludes such other places from the scope of amusement facility, which means that charges recovered for access to the excluded premises would continue to be taxable. ‘Amusement facility’ has been defined to mean a facility where recreation or fun is provided by means of bowling alleys. However, a place within such facility where services other than bowling alley are provided would not be covered under the definition of ‘amusement facility’ - The appellant earmarked space for fun or recreation such as bowling alley or video games. In such an area, no other services are provided. Further, charges to such areas are also separate. Thus, provision of access to such a facility (bowling alley) would be covered under the Negative List.
The ‘access to’ an amusement facility would also mean the permission to use such facility against payment of an amount - it has to be held that the income received by the appellant from bowling alley would be covered under section 66D(j) of the Finance Act and, therefore, would not be leviable to service tax.
Extended period of limitation - HELD THAT:- It would, therefore, not be necessary to examine the other contentions raised by the learned counsel for the appellant, including the contention that the extended period of limitation could not have been invoked in the facts and circumstances of the case.
The impugned order dated 31.01.2019 passed by the Commissioner, therefore, deserves to be set aside and is set aside - appeal allowed.
-
2024 (4) TMI 34
CENVAT Credit - marine insurance - credit on premium paid for insurance for software engineers is denied as it is not a statutory requirement - Extended period of Limitation - HELD THAT:- This is a case where Revenue took a stand that the definition of ‘input service’ with effect from 01.04.2011 excluded health insurance, life insurance etc. when used primarily for personal use or consumption of any employee as pleaded in this case, hence tax paid for such insurance premiums were not eligible for credit as ‘input service’. Being a mixed question of fact and law, it was felt by the Commissioner (Appeals) with an intent to do justice between the parties that a verification of facts may be required before deciding the legal point, instead of summarily accepting or rejecting them. Hence the remand of the matter by the Commissioner (Appeals) for examining the facts and deciding the same based on the CENVAT Credit Rules, 2004 cannot be faulted.
The Appellant is agreed upon that the general insurance business which stood specified in Rule 2(1)(BA) of CENVAT Credit Rules 2004 is applicable not for capital goods only. The definition of ‘input service’ as per Rule 2(l) ibid, covers not only the services used directly or indirectly in or in relation to the manufacture of the final product but also includes activities related to business - The CENVAT Credit Rules, 2004 was introduced by superseding the CENVAT Credit Rules, 2002 and Service Tax Credit Rules, 2002, with the object to extend credit of service tax and excise duty across goods and services. Hence the change in the definition of ‘input service’ with effect from 01.04.2011 to excluded health insurance, life insurance etc. when used primarily for personal use or consumption of any employee, cannot be read to restrict tax paid on insurance for capital goods only, without the Rules specifically saying so.
Extended period of limitation - HELD THAT:- The dispute involves interpretation of the statutory provisions of the CENVAT Credit Rules, 2004 involving the definition of ‘input service’ and does not involve mis-declaration, with intention to evade payment of duty. This is also clear from the fact that the matter is being remanded by the Commissioner ((Appeals) for verification of facts in consonance with the law. Hence the extended period could not have been evoked nor penalty could have been imposed.
While allowing the remand, the invocation of the extended period and the imposition of penalty in the impugned order is set aside - Appeal disposed off by way of remand.
-
2024 (4) TMI 33
Providing Services to SEZ unit - Benefit of exemption of Service Tax under N/N. 12/2013 dated 01.07.2013 based on Form A2 issued by the jurisdictional officer - non-submission of the mandatory forms - period of dispute is April 2016 to March 2017 - HELD THAT:- As seen from the Notification, the declaration in Form A1 is submitted by the SEZ unit and based on this declaration, the Form A2 is issued which in turn is given to the non-SEZ service providers to avail the benefit of Service Tax exemption. From the records placed, it is seen that Form A2 is issued by the jurisdictional officer to M/s. Cisco Systems (I) Pvt. Ltd. The appellant is eligible for the benefit of exemption of Service Tax based on this Form A2 issued by the jurisdictional officer. Therefore, the impugned order denying the benefit of exemption for non-production of Form A1 by the appellant is irrelevant.
Since Form A2 is issued based on Form A1, Form A2 being available, the benefit of the exemption cannot be denied.
The impugned order is set aside and appeal is allowed.
-
2024 (4) TMI 12
Demand of service tax on amounts collected as penalties under various contracts - Constitutional Validity of Section 66E(e) of the Finance Act, 1994 - violative of Articles 246 and 265 as well as Articles 14 and 19(1)(g) of the Constitution of India or not - HELD THAT:- It is clear and forthcoming that the contentions sought to be put forth by the petitioner have been interpreted and construed by the respondents by the circular dated 3.8.2022 which is subsequent to the show cause notice dated 20.6.2016. It is also relevant to note that prior to the issuance of the said circular dated 3.8.2022, the CESTAT has rendered its judgment in the case of South Eastern Coalfields Ltd. [2020 (12) TMI 912 - CESTAT NEW DELHI] - The respondents have subsequently issued a circular dated 28.2.2023, where under it has decided not to challenge the judgment rendered in the case of South Eastern Coalfields Ltd. Hence, the reliance placed by the petitioner on the said aspects requires consideration since the same goes to the foundational basis on which the show cause dated 20.6.2016 has been issued.
It is further relevant to note that vide the said show cause notice dated 20.6.2016, the petitioner has been notified that it is liable to pay service tax. Further, it has been called upon to file its reply and place evidence in support of its defence. The petitioner was also required to indicate as to whether they wish to be heard in person before the case is adjudicated.
The petitioner shall appear before the second respondent on 30.4.2024, on which date it shall place on record its defence along with all material it chooses to rely upon - Consequent to the appearance of the petitioner, the second respondent after affording an opportunity to the petitioner to put forth its defence shall consider the same in the light of the circulars dated 3.8.2022 and 28.2.2023 and after conducting further proceedings pass appropriate orders in accordance with law - Appeal disposed off.
-
2024 (4) TMI 11
Classification of service - Business Auxiliary Services or Mining of Minerals, Oil or Gas? - activity/service rendered by the appellant in raising iron ore to the Appellant under agreement dated 03.05.2003 - imposition of penalty - HELD THAT:- It is clear that the agreement entered into by the appellant comprises host of activities/services referred to and necessary and incidental to mining operations within the mining area mentioned in the said Agreement. Broadly, the activity comprises of exploration, development, excavation, extraction, grading, screening, sizing, sorting and stacking, etc. Also, the Appellant is required to built and maintain necessary infrastructure by way of building internal roads, office premises etc. within the mining area in carrying out the mining activities. For undertaking all the activities, the appellant received consideration of Rs.188/- per metric tonne of calibrated iron ore and Rs.25/- per metric tonne of iron ore fines raised and generated, thus, the activities undoubtedly indicate that the appellant has provided services which are akin to the category of ‘mining of minerals’ service inserted in the Finance Act,1994 with effect from 1.6.2007. The activities undertaken by the appellant are composite in nature and involves not merely production of minerals but services before production and after production of the said minerals including building and maintenance of necessary infrastructure; hence, rightly covered under the scope of mining operations and not under ‘Business Auxiliary service’.
The Tribunal following the circulars and the judgments rendered earlier in the case of M/s. G. S. Atwal & Co. Engineers Pvt. Ltd. vs. CST, Kolkata [2023 (6) TMI 310 - CESTAT KOLKATA] considering and comparing the three competing services viz. Cargo Handling service, Business Auxiliary Service and Site Formation and clearance, excavation and demolition services with that of ‘mining services’ held that the activities carried out by the appellants, which are akin to the services rendered by the Appellant in the present case, fall under the scope of mining operations, hence, leviable to tax w.e.f. From 01.06.2007.
The issue involved in the present case is, whether the host of activities/service carried out by the appellant under the Raising agreement, result in the nature of service mentioned under clause(v) of Business Auxiliary Service or ‘Mining of Mineral, Oil or Gas’ services. Also, the Ld. A.R for the Revenue made an attempt to distinguish the case laws referred by the appellant submitting that the nature of competing service involved in these cases is different i.e., Site formation service, cargo Handling Service etc. hence not applicable to the present case. The said argument is devoid of merit. Reading the circulars and relevant entries, it is clear that the services provided by the appellant squarely fall under the category of mining services and in all these cases it has been consistently held that Mining service involves a host of activities and rendered under a composite contract which cannot be divided into individual components/service for levy of service tax on each service separately; and observed all these activities combined are rightly classifiable under ‘Mining of Mineral, Oil or Gas’ service leviable to service tax w.e.f 01.6.2007.
The impugned Order is devoid of merit and accordingly set aside - Appeal allowed.
-
2024 (4) TMI 10
Extended period of limitation - PSU - CENVAT Credit - input services - credit denied holding that the cenvat credit was taken before making the payment of the same - Rule 4(7) of the Cenvat Credit Rules, 2004 - HELD THAT:- There is no restriction for availment of cenvat credit. In that circumstances, the appellant is entitled to take the cenvat credit as held by this Tribunal in the case of M/S MUNJAL SHOWA LTD. VERSUS C.C.E., DELHI-III, GURGAON [2018 (12) TMI 84 - CESTAT CHANDIGARH].
It is found that at the most the appellant is liable to pay interest in the intervening period, but whole of the demand has been raised by invoking extended period of limitation as the appellant being a Public Sector Undertaking owned by the State Government, the element of suppression of facts and malafide intention for extending period of limitation is not invokable. Further the demand of interest has been raised by invoking extending period of limitation is also not invokable as held by this Tribunal in the case of M/s Munjal Showa Limited.
The impugned order is set aside and the appeal is allowed
-
2024 (4) TMI 9
Liability of service tax - directors remuneration - Reverse Charge Mechanism falling under Sl.No.5A of the Notification No. 30/2012-ST dt.20.06.2012 - HELD THAT:- The issue is no longer res integra and the same has been decided against the Revenue and in favour of the Assessee in M/S ALLIED BLENDERS AND DISTILLERS PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, AURANGABAD [2019 (1) TMI 433 - CESTAT MUMBAI] and M/S. MAITHAN ALLOYS LTD. VERSUS CCE & ST, BOLPUR [2019 (4) TMI 1595 - CESTAT KOLKATA] where it was held that Demand of service tax on remuneration paid to whole time directors cannot be sustained.
This Appeal filed by the Revenue is dismissed being without merits.
-
2024 (4) TMI 8
Classification of services - transportation services - Declared service or not - benefit of entry of Section 66D (p)(i)(A) of the Finance Act, 1994 denied - it was held by CESTAT that The case of the appellant is on much better footing on the admitted fact that the appellant’s client FCPL is in fact the GTA who issued ‘Consignment Note’ in respect of the Transportation Service provided to M/s Reliance Industries Ltd. Therefore, appellant is not liable to pay Service Tax - HELD THAT:- There are no reason to interfere with the impugned judgment passed by the Custom Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad.
The Civil Appeal is dismissed.
-
2024 (4) TMI 5
Levy of service tax - Business Support Services - sale of merchandise - payments made to foreign players and staff - receipts from BCCI merchandise sale and import of service - reversal of CENVAT Credit - consideration paid to players could be considered as payment towards brand promotion services - HELD THAT:- Reliance placed in the case of M/S. INDIA CEMENTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CHENNNAI [2023 (8) TMI 1395 - CESTAT CHENNAI] of this very Bench in the appellant’s own case for different periods wherein the coordinate Bench has granted relief to the appellant by following the orders of other coordinate Benches and held that The very same issue was considered by the Tribunal in the case of KPH Dream Cricket Pvt. Ltd. [2019 (5) TMI 1171 - CESTAT CHANDIGARH] where it was held that on player’s fee, no service tax is payable.
Sale of merchandise - it is the case of the appellant that there was no service but only sale, which is not amenable to service tax - HELD THAT:- It is found from the impugned order that there is no dispute that the demand pertains to the sale of merchandise and hence, the same can never be held to be ‘service’ by any stretch of imagination. Hence, the demand as far as this issue is concerned is set aside and the appeal is allowed to this extent.
The impugned orders are set aside and the appeals allowed
-
2024 (3) TMI 1289
Imposition of penalty u/s 76 and 78 of the Finance Act, 1994 - Recovery of service tax - business auxiliary services - payments made by the Appellants to foreign commission agents - period from 2003–04 to 31.12.2007 - HELD THAT:- There is no dispute as regards the fact that the Appellant have paid service tax along with interest upon intimation by the Department. It is the claim of the Appellant that they were under bonafide belief as regards their liability to pay tax and when they were intimated about their obligation, they have discharged the tax liability along with interest there upon. It is found that it is settled legal position as enumerated by the Hon’ble Gujarat High Court in the case of M/S RAVAL TRADING COMPANY VERSUS COMMISSIONER OF SERVICE TAX [2016 (2) TMI 172 - GUJARAT HIGH COURT] that penalty under section 76 and 78 cannot be imposed simultaneously.
Similar view has been upheld by this Tribunal in the case of MD ENGINEERS VERSUS C.C.E. & S.T. -VADODARA-I [2023 (8) TMI 903 - CESTAT AHMEDABAD] wherein it was held that the appellant have been imposed penalty under section 76 and 78 simultaneously.
The penalty under Section 76 and 78 cannot be imposed simultaneously. Accordingly, penalty under section 76 should not be imposed on the Appellant when they have paid the service tax along with interest whereas penalty under section 78 and other penalties is upheld.
The impugned order is modified to the above extent. The appeal is partly allowed.
-
2024 (3) TMI 1288
Benefit of N/N. 1/2006 – ST dated 01.03.2006 - Industrial or Commercial Construction Services - appellant to provide the materials such as cement, steels etc., and in terms of some it was required for the appellant to provide the services along with the materials - Cenvat credit was being availed - HELD THAT:- The issue settled by this Tribunal in the appellant's own case M/S SMP CONSTRUCTIONS PVT LTD VERSUS C.C.E. & S.T. -VADODARA-II [2018 (8) TMI 179 - CESTAT AHMEDABAD] pertains to the condition as prescribed under Notification No. 1/2006-ST as regards exemption and benefit of abatement where it was held that the condition of the Notification was complied with, merely in some of the contract the appellant had availed the cenvat credit, and the same has no effect on the service where the exemption Notification No. 1/2006-ST was availed.
Thus, following the above observations of this Tribunal, the adjudicating authority can reconsider the issue afresh based out of the factual matrix of the present case taking into account the submissions made by the Appellant as regards the effect of availment of Cenvat credit and abatement where credit was not availed at all. Therefore, the issue needs to be remanded back to the adjudicating authority for reconsideration.
The appeal is allowed by way of remand to the adjudicating authority.
-
2024 (3) TMI 1287
Levy of service tax - services of sales promotion and marketing provided outside India - service in the present case is provided in the taxable territory of India or not - failure to fulfil the condition as provided in clause (d) of the Rule 6A as per which the place of provision of service is outside India - Section 66B of the Finance Act read with Rule 6A of the Service Tax Rules - HELD THAT:- The said issue has been settled by this Tribunal in Solvay Specialities India Pvt Limited Versus Commissioner of Central Excise & ST, Surat-II [2023 (4) TMI 828 - CESTAT AHMEDABAD] in the Appellant’s own case where it was held that the service of the appellant in present case being absolutely identical, under the same set of facts, it amounts to Export of Service hence it is not liable to service tax. Accordingly, the demand on the Export of Service i.e. Business Auxiliary Service is not sustainable hence the same is set-aside.
The services have been provided by the Appellant which have been received outside India thereby establishing that the said services have been exported. The issue is no longer res-integra.
The impugned order set aside - appeal allowed.
-
2024 (3) TMI 1286
Refund of CENVAT Credit - services related to Information Technology (ITSS) - export of services or not - eligibility to avail CENVAT credit when the supplier of services pays service tax on a mistaken notion of law - credit can be denied for the difference in the ST-3 Returns and CENVAT credit Register or not.
Whether the appellants are eligible for claiming refund on the ITSS Services claimed to have been rendered to M/s Agilent Technologies, Singapore? - HELD THAT:- On going through the agreement, one gets understanding that the same are not in the field of ITSS. An addendum of a later date cannot be construed to be an order valid during the relevant period. Therefore, there was no specific order placed by M/s Agilent Technologies, Singapore, on the appellant, for providing ITSS Services during the relevant period. It is found that the addendum and the certificate issued much later than the impugned period that to after rejection of the refund cannot take place of an “Order” as envisaged in the proviso to Rule 3(1)(iii) of Export of Service Rules, 2005. It is found that the argument of the appellants that development of Software Services rendered by the appellants is linked to the R & D Agreement is not acceptable.
The appellants have also taken the plea that prior to 16.05.2008, they have claimed refund of Business Support Services and not in respect of ITSS Services and thus, partial refund claim was wrongly rejected to the tune of Rs.2,81,87,493/-. This claim needs to be verified from the records by the Adjudicating Authority. Though, it is held that during the relevant period, the appellants are not entitled to refund of CENVAT credit on services utilized for ITSS Services, they would be eligible for the refund of CENVAT credit on services utilized for other services, if otherwise, applicable. For this reason, it is found that the matter requires to go back to the Original Authority.
Whether the appellants are eligible to avail CENVAT credit when the supplier of services pays service tax on a mistaken notion of law? - HELD THAT:- As there is no dispute regarding the fact of duty being paid on the generator, credit cannot be disallowed at the service receiver”s end. Learned Authorized Representative for the Department submits that all the cases cited by the appellant are in the realm of Central Excise and therefore, not applicable to the issue of service tax. This proposition cannot be accepted. The basic principle of CENVAT credit being same under Central Excise & Service Tax regime, any differentiation in this regard would be artificial.
Whether the credit can be denied for the difference in the ST-3 Returns and CENVAT credit Register? - HELD THAT:- Appellant submitted that learned Commissioner has not given any findings on the same - In the case of M/s Temenos India Pvt. Ltd. [2020 (2) TMI 354 - CESTAT CHENNAI], the Tribunal held Further I find that the Commissioner (Appeals) in the impugned order has observed that the appellants have not submitted any 11 documents to prove their contention that they have rightly availed the cenvat credit. It appears that both the authorities have not examined all the documents which have been filed by the appellant in support of their refund claim. In view of this, I set aside the impugned order and remand the matter back to the original authority to examine the refund claim on the basis of other documents filed by the appellant.
Refund cannot be rejected for the reason that there is a discrepancy between the CENVAT record and ST-3 Returns. However, the submissions of the learned Authorized Representative, agreed upon, that the same can be allowed only if records maintained by the appellants demonstrate that the input services were used/ utilized for the export of services - the issue requires to travel back to the Original Authority for a re-consideration in view of our findings as above.
The appeal is allowed by way of remand to the Original Authority.
-
2024 (3) TMI 1285
Classification of services - Business Auxiliary Services (BAS) or Goods Transport Agency Services (GTA) - extra amount collected from the clients over and above the amounts actually paid to the vehicle owners on back-to-back basis - HELD THAT:- The undisputed fact in the present case is that the appellant renders service of transporting goods of their customers in exchange for a ‘consideration’ and for this purpose, the appellant hires vehicles from third party owners under the agreement. Further, the appellant’s customers are not privy to the agreement for hiring vehicles and the ‘Margin Money’ collected and retained by the appellant is nothing but the surplus of transportation income, over and above the hire charges paid, on which service tax is paid after availment of 75% abatement.
In the appellant’s own case M/S. ASPINWALL & CO. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE TIRUNELVELI [2019 (4) TMI 182 - CESTAT CHENNAI] for the previous period, this Tribunal allowed the appeal of the appellant by holding On perusal of the order as well as records, we do not find any element that would attract the activity or the amount collected by the appellant in relation to hiring of vehicles or transportation of goods to be falling under BAS.
The impugned order is not sustainable in law and the same is set aside - appeal allowed.
-
2024 (3) TMI 1284
CENVAT Credit - input services - erection and commissioning of machines carried out in China and Italy based on invoices / debit notes raised by M/s.Voltas Ltd., Coimbatore - HELD THAT:- The appellant has availed credit in regard to services only upto 01.04.2011. As rightly argued by the learned counsel for appellant that during the period prior to 01.04.2011, the definition of ‘input services’ was wide enough as it included the words “activities relating to business”. Undeniably, the services are related to the business of manufacture of the appellant. For this sole reason, the appellant is eligible for credit. Further, as argued by the appellant, the erection and commissioning has been outsourced by appellant through M/s.Voltas Ltd., Coimbatore. The agreement between the appellant as well as the foreign buyer shows that the appellant has to do erection and commissioning of the machines sold at the buyer’s premises. Therefore, the cost incurred by the appellant to M/s.Voltas Ltd. has gone into the cost of the machines sold/exported by the appellant.
For this reason also, the appellant is eligible for credit - the denial of credit is not justified - impugned order is set aside - Appeal allowed.
-
2024 (3) TMI 1283
Levy of service tax - collection of excess amount from customers over and above the actual ocean freight paid to the shipping lines - period from April 2012 to September 2012 - HELD THAT:- The Adjudicating Authority has considered in Paragraphs 10.4 and 10.5 that the amount collected during the course of providing the Steamer Agent Service is subject to levy of Service Tax. However, he has not stated under which category and how this amount is an excess amount collected as freight would be consideration and the appellant has paid the Service Tax on the commission received as Steamer Agent. The amount collected is some excess of ocean freight as they were not able to quantify the exact freight to be paid to shipping lines. The ocean freight cannot be subjected to levy of Service Tax as it is not a consideration for Steamer Agency Services. The Department itself admits that these are amounts collected in excess of ocean freight. There is no provision for levy of Service Tax on ocean freight.
Further, as per the decision in the case of MESSRS SAL STEEL LTD. & 1 OTHER (S) VERSUS UNION OF INDIA [2019 (9) TMI 1315 - GUJARAT HIGH COURT], the Hon’ble High Court has held that the demand of Service Tax on ocean freight cannot sustain.
It is found that though Department alleges that the appellant has collected excess amount towards freight, the Show Cause Notice does not say as to which category of service the said amount would be liable to Service Tax. So also, it is not stated whether the amount is consideration for Steamer Agency Service. The Show Cause Notice does not propose to include the amount under particular category of service and demand the Service Tax under any category. The Adjudicating Authority has not made any finding as to whether the excess amount collected would be consideration for service. The Show Cause Notice is the foundation of the litigation. When the Show Cause is insufficient as to clarify the category of service, the demand cannot sustain and requires to be set aside.
The impugned order is set aside - The appeal is allowed
-
2024 (3) TMI 1282
Service or not - levy of service tax - collection of liquidated damages for supply of goods and services beyond the due date as per the agreement entered into with various suppliers and service providers - HELD THAT:- The issue is squarely covered by the judgement of the Principal Bench of this Tribunal in appellant’s own case for Bhopal / Dehradun Unit. Referring to the earlier judgment of the Tribunal on the same issue, it is observed The amount cannot be made liable to tax in the name of it being consideration for providing deemed service.
The judgment have been accepted by the Board vide Circular No.214/2023-S.T. dated 28.02.2023.
The impugned order is set aside and the appeal is allowed.
............
|
