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Service Tax - Case Laws
Showing 121 to 140 of 181 Records
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2018 (1) TMI 425 - CESTAT AHMEDABAD
Penalty u/s 70 of FA 1994 - non-filing of ST-3 returns - Held that: - in case the assessee on detection has paid the amount of service Tax to the department, in that circumstances, SCN is not required to be issued. Admittedly, the ld. Commissioner (Appeals) has accepted the provisions of Section 73(3) of the Act is applicable to the appellant - the ld. Commissioner (Appeals) has fell in error for imposing late fees on the appellant by invoking Section 70 of the Finance Act, 1994 - penalties set aside - appeal allowed.
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2018 (1) TMI 424 - CESTAT AHMEDABAD
Entitlement of interest - interest on the amount of refund of pre-deposit debited through cenvat account - interpretation of statute - Held that: - statute itself provides for an interest on refund of an amount deposited in furtherance of Sec. 36F consequent on the order of the Appellate Authority from the date of payment of the amount till the date of refund of such amount. The said Section does not differentiate between the deposits made in cash or by debit in cenvat account - denial of interest to appellant under Section 35FF for only for the reason that there is no loss that has occurred to appellants which needs compensation is unsustainable findings - It is settled law that Section of the statute needs to be interpreted as they are.
Interest has to be paid to the appellant as per Sec. 35FF of the CEA, 1944 - appeal allowed.
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2018 (1) TMI 423 - CESTAT AHMEDABAD
Refund claim - rejection mainly on the ground of time bar - Held that: - The appellants’ claim that within six months from the date of payment of service tax to the service provider consequent to the raising of the invoices by the service provider, the refund claims were filed; the facts need to be verified - the claim of payment of service tax to the service provider on which refund was claimed also needs to be verified.
Refund claim relating to telephone services installed in the premises - Held that: - The telephone services are used in receiving calls from outside and also used in calling outside number as a part of the communication in performance of its business - rejection of refund set aside.
Appeal allowed by way of remand.
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2018 (1) TMI 379 - CESTAT CHANDIGARH
CENVAT credit - input/input services - construction of commercial, industrial and residential premises - whether the service tax paid on Works Contract Services, Project Management and Architectural Professional Services can be considered as input services for the appellant when these services are used for construction of hotel? - Held that: - the adjudicating authority was in error to rely upon the Board Circular No. 98/1/2008-ST dated 04.01.2008 in as much, the definition of input services during the relevant period does not bar availment of CENVAT credit all input services.
Input services includes the services used in relation to settingup, modernization, renovation of premises of provider of output services - In the case in hand, the definition is reproduced as above categorically will apply and the clarification given by the Board in CBEC Circular dated 04.01.2008 is going beyond the definition.
It is not disputed that jetty was constructed and input credit was claimed on cement and steel. The aforesaid definition of Rule 2(k) was applicable and Explanation 2 did not provide that cement and steel would not be eligible for input credit. According to learned Counsel for the appellant, the appellant is not manufacturer and, therefore, the provisions of Explanation 2 of Rule 2(k) would be applicable only to the factory and manufacturer. The appellant is neither having any factory nor he is manufacturer. The appellant is a service provider of port.
As all the inputs/inputs service has been used by the appellant for construction of a building which has been let out by the appellant and paying service tax thereon under the category of Renting of Immovable Service therefore, the appellant is entitled to avail cenvat credit - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 378 - CESTAT CHANDIGARH
Business Auxiliary Services - non-competing agreement - extended period of limitation - whether the activity undertaken by the appellant is taxable prior to 01.07.2012 or not? - Held that: - prior to 01.07.2012, non-compete agreements were not specifically taxable under Finance Act, 1994. It is only with effect from 01.07.2012 when Section 66E(e) of the Finance Act agreeing to the obligation to refrain from an act, or to tolerate an act or a situation or to do an act constituted a declared service on which service tax was payable with effect from 01.07.2012 - the period prior 01.07.2012, the amount recovered by the appellant by way of non-compete agreements are not liable to tax under the Finance Act, 1994.
Whether the activity undertaken by the appellant falls under the category of Business Auxiliary Service or not? - Held that: - the sale promotion means that in case of sale promotion a large population of consumer is targeted - Admittedly, the appellants are not involved in such activity but they were paid for not to target the consumers. Therefore, the activity undertaken by the appellant do not qualify under Business Auxiliary Service.
Whether the extended period of extension is invokable or not? - Held that: - As there were divergent view on classification of services in question, therefore, extended period of limitation is not invokable in the facts and circumstances of the case - demand barred by limitation.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 377 - CESTAT MUMBAI
Penalty u/s 78 - services of foreign commission agents - reverse charge mechanism - Held that: - Tribunal in the case of Modern Woolens vs. Commissioner of Central Excise, Jaipur-II [2016 (11) TMI 1353 - CESTAT NEW DELHI], in similar circumstances, set aside the penalty imposed upon the assessee, and held that whatever Service tax was required to be paid by the appellant, was available to them as cenvat credit. As such, the entire situation is revenue neutral, in which case, no malafide can be attributable to the appellant.
There is no evidence of mala fide on the part of the assessee - penalty set aside - appeal allowed.
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2018 (1) TMI 376 - CESTAT NEW DELHI
Club or association Service - supply of tangible goods - Held that: - the issue is no more res-integra as there are no services provider-service recipient relationship between the club and the members as held in various juridical pronouncements - there could be no liability of Service Tax on the appellant under the category of Club or Association Service.
Repair and Maintenance Service - repair of aircraft engine - Held that: - the appellants received taxable service of repair and maintenance. The said service has been carried out and provided by M/s Honeywell partly in India and partly in France. M/s Honeywell used another sub-contractor on their own to render the part of repair service in India will bring the tax liability to the appellant in view of the proviso to Rule 3 (ii) of Taxation of Services Rules, 2006 - repair and maintenance service is liable to tax.
Time limitation - penalties - Held that: - the ingredients for invoking extended period could not be sustained in the present demand. There could be no malafide or misrepresentation attributable in such circumstances of the case - demand should be restricted to the normal period - the penalties imposed on the appellants are also not sustainable.
Appeal allowed in part.
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2018 (1) TMI 375 - CESTAT NEW DELHI
CENVAT credit - sale and servicing of vehicles - denial on the ground that the entire services on which credits have been availed by the appellant get exhausted for sale of vehicles only, which is outside the purview of output service - Held that: - the appellants have given detailed chart of various services, period-wise, under 3 categories as mentioned earlier in this order. It is necessary to verify each one of the tax paid documents to identify the nature of service, whether can be attributed exclusively to taxable output services or listed under Rule 5 of the CCR or common to both trading and taxable service activity - matter on remand.
GTA services - Held that: - appellant are not apparently covered by any one of the 7 categories mentioned under N/N. 35/2004-ST. Further, the appellants were consignees of goods (vehicles). M/s. Maruti being a consignor have undertaken the transport using GTA and paid freight on such transport. The appellant’s assertions on these facts are relevant to decide their liability under GTA service - demand set aside.
Appeal allowed in part and part matter on remand.
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2018 (1) TMI 374 - CESTAT NEW DELHI
Liablity of tax - construction activities - works contract service - Held that: - Admittedly, in the present case the construction activity of the appellant is with reference to student’s hostel and the public hospital. These are non-commercial buildings. Accordingly, these are excluded from tax liability under works contract service - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 373 - CESTAT MUMBAI
Recovery of liability - security service provider - Rule 6(2) of the STR, 1994 - Held that: - Revenue and appellant shall draw a proper schedule in the presence of Chief Commissioner of Service Tax, who shall be a monitoring authority for execution of this order. He shall nominate representative for Revenue to undertake reconciliation of facts and figures with the representative of appellant with due verification of payment particulars - Year wise liability following rule 6(2) of Service Tax Rules, 1994 shall be ascertained - matter on remand.
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2018 (1) TMI 343 - CESTAT MUMBAI
CENVAT credit - input service - restoration of appeal - Held that: - the Hon’ble High Court of Bombay has, in Coca-Cola India Pvt Ltd v. Commissioner of Central Excise, Pune-III [2009 (8) TMI 50 - BOMBAY HIGH COURT], accorded wide latitude to the expression “input service” and approves the allowing of CENVAT credit if any of the five enumerated limbs are satisfied - no case has been made out for Revenue that none of the specified limbs are applicable in the disputed services - appeal dismissed - decided against Revenue.
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2018 (1) TMI 309 - CESTAT AHMEDABAD
CENVAT credit - credit availed before registration - penalty - Held that: - immediately after incorporation, the appellant applied for PAN for which the Income Tax department took time to issue PAN to the appellant and without the PAN the appellant could not registered with the department. Therefore, there was no malafide intent of the appellant for non-registration within time - penalty set aside.
The issue has also been examined by the Hon’ble Karnataka High Court in the case of mPortal India Wireless Solutions Private Limited [2011 (9) TMI 450 - KARNATAKA HIGH COURT], where it was held that for the period prior to registration the appellant is entitled to avail cenvat credit of input services.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 308 - CESTAT NEW DELHI
Refund of excess service tax paid - unjust enrichment - Held that: - the excess amount paid by the appellant is from the own pocket and not recovered separately from the service recipient. In that circumstances, bar of unjust enrichment is not applicable.
Time limitation - Held that: - The excess amount paid by the appellant is not service tax as it is not legally payable by the appellant. In that circumstances, the excess amount paid by the appellant does not invoke provision of Section 11B of the Act - the limitation is not applicable.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 272 - RAJASTHAN HIGH COURT
Refund of unutilized CENVAT credit - Goods sold by a DTA Unit to a 100% EOU unit - Rule 5 of CCR 2004 - monetary limit - Held that: - The issue is now covered by the decision of this court in the case of The Commissioner of Central Excise & Service Tax V/s M/s Gulshan Chemicals Ltd, A 595, Industrial Area, [2018 (1) TMI 197 - RAJASTHAN HIGH COURT] where it was held that the appeal is of less than ₹ 20,00,000/- tax effect and covered by latest circular F.No.390/Misc./163/2010-JC/Pt Government of India - Central Board of Excise & Customs fixes the monetary limit below which appeal shall not be filed in the High Court as ₹ 20,00,000/- - refund allowed - appeal dismissed - decided against Revenue.
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2018 (1) TMI 271 - CESTAT NEW DELHI
Security Agency Service - demand of service tax - Held that: - identical issue decided in the case of The Deputy Commissioner of Police Jodhpur, Superintendent of Police Versus Commissioner of Central Excise and Service Tax, Jaipur [2016 (12) TMI 289 - CESTAT NEW DELHI], where it was held that police department, which is an agency of the State Govt., cannot be considered to be a person engaged in the business of running security services. Consequently, the activity undertaken by the police is not covered by the definition of Security Agency under Section 64(94) of the Act - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 270 - CESTAT MUMBAI
Classification of services - whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under Maintenance & Repair Service (MMRS)/ Commercial & Industrial Construction Service (CICS)/Erection, Commissioning or Installation Services (ECIS)? - Held that: - It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which has been executed by the appellants are with material - Learned Counsel was correct in bringing to our notice that the said findings of the adjudicating authority that the appellant is eligible for abatement of 67% of the value of the goods is in itself the acceptance of the fact that the contracts were executed with material. It is also on record that the Revenue has not contested these findings of the adjudicating authority before the Tribunal.
Demand raised in some of the SCN in other classification, which was not proposed in the SCN - Held that: - the law is fairly settled by the judicial pronouncement on this point i.e. the adjudicating authority cannot classify services if it is not proposed in the SCN.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 269 - CESTAT CHENNAI
Refund claim - denial on the ground of invoices without address and missing invoices and input services on which credit taken are ineligible input service since they did not have any nexus with output services exported - Held that: - the processing of refunds after the amendment to Rule 15 w.e.f 1.4.2012 is required to be done on a more liberal basis without insisting for one to one correlation. That however will not mean that the input service can also be one which is specifically barred by Rule 2(l) of the CCR 2004 - Even after the amendment to Rule 2(l) w.e.f. 1.4.2011, it has been consistently held that so long as a particular input service is not specifically barred by Rule 2(l) or is not used for the personal consumption of an employee etc. that would very much an eligible input service - refund allowed.
In the instant case, appellants have waived their right to show cause notice. However in case, sanctioning authority finds that any particular credit amounts are liable for rejection for the reason that they fall foul of the Rule 2(l), a SCN should have been issued to the appellant. This is certainly was not done.
For the limited purpose of providing an opportunity to the appellant to produce necessary documents in respect of credits availed without STC code, missing invoices etc., the matter is remanded to the original authority concerned.
Appeal allowed in part and part matter on remand.
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2018 (1) TMI 268 - CESTAT MUMBAI
N/N. 9/2009 - ST dt. 03.03.2009 - denial on the ground that the Appellant was required to discharge the service tax liability and follow refund procedure prescribed under notification - Held that: - the Tribunal in case of Reliance Port and Terminals [2013 (10) TMI 339 - CESTAT AHMEDABAD] held that Section 51 of the SEZ Act which defines export shall have overriding effect in case of any inconsistent provisions in any other Act - no service tax can be levied on services provided to units situated in SEZ nothwithstanding anything contained in N/N. 9/2009-ST as amended by N/N. 15/2009-ST as the said exemptions were only to operationalise exemption from payment of duty on services supplied to SEZ unit and Developer - the Appellant are eligible for exemption from payment of service tax on services provided to SEZ unit - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 267 - CESTAT MUMBAI
Short payment of service tax - Manpower Supply services - Held that: - We do not find any evidence in the form of contract or purchase order - the demand has been correctly made against the Appellant.
Penalty - the Appellant were paying a meager amount towards service tax and in between November’ 06 to Aug’ 08 no amount was paid by them. They also did not file any ST - 3 Return and it was only detection by the department that they discharged the service tax liability - penalty upheld.
The Appellant is eligible for 75% waiver of the penalty imposed under Section 78, rest of the demand and penalty confirmed against the Appellant is upheld.
Appeal disposed off.
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2018 (1) TMI 266 - CESTAT MUMBAI
Business Auxiliary Services - amount received towards playing for IPL and for promotional activities - Held that: - though in the SCN the Respondent was made liable to pay service tax but as rightly held by the adjudicating authority, no specific clause of Section 65 (19) defining “Business Auxiliary service” has been shown to be applicable to levy service tax. It is not appearing from the show cause notice as to what goods or services the Respondent has promoted or helped to promote - The Brand promotion fee was not taxable until ‘Negative list’ came into effect from 01.07.2010 and hence there cannot be any liability upon the Respondent till that period - the Respondent is not liable to service tax - appeal dismissed - decided against Revenue.
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