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Service Tax - Case Laws

Showing 121 to 133 of 133 Records

• 2014 (3) TMI 114 - CESTAT NEW DELHI
  

  Demand of service tax - Abuse of law - Held that:- Gravity of the matter, calls for disposal of the stay application today for the reason attributable to the appellant who has abused process of law. While undue hardship was given due weightage as against extent of demand stated above, Revenue’s interest has also been given utmost importance following ration of the Apex Court in the case of Assistant Collector of Central Excise vs, Dunlop India Ltd.[1984 (11) TMI 63 - SUPREME Court] and in the case of Benara Valves Ltd.vs.CCE [2006 (11) TMI 6 - SUPREME COURT OF INDIA] - Both sides agree that reconciliation is pending. But to protect interest of Revenue, as an interim measure, the appellant is directed to deposit Rs.10 lakhs within six weeks from today - Decided against assessee.

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• 2014 (3) TMI 79 - CESTAT NEW DELHI
  

  Classification of service - cargo handling or site formation and clearance, excavation and earth moving service or mining service - job was clearing the site for mining, excavation of top soil and its dumping at a specified place, removal of the over burden and raising of saleable lignite from Matasukh Mines - period before 16/06/05 and from 16/06/05 to 31/05/07 - Held that:- except for mention of loading of the mined lignite of the desired quantity into the trucks in Clause 4.2.1 (c) of the agreement, there is absolutely no mention of any handling or transportation of coal by the appellant within the mining area. As held by the Tribunal in the case of Sainik Mining & Allied Services Ltd. vs. CCE, CUS & ST, BBSR (2007 (11) TMI 90 - CESTAT, KOLKATA), cargo in commercial parlance means the goods which are to be carried as freight in ships, planes, rail or trucks and cargo handling service is handling of such goods meant for transportation and it is on this basis that the Tribunal in this case held that handling and movement of coal within the mining area is not taxable as cargo handling service under Section 65 (105) (Zr). - service tax demand for the period prior to 16/6/05 is not sustainable at all

  As regards the service tax demand for the period from 16/6/05 to 31/5/07 - the entire contract has to be treated as a mining contract and not a contract for site formation, clearance, excavation and earth moving. Therefore, for this period also, the appellant’s activity cannot be subjected to service tax under Section 65 (105) (ZZZa). We find that same view has been taken by the Tribunal in an identical issue involved in the case of M. Ramakrishna Reddy vs. CCE & CUS, Tirupathi [2008 (10) TMI 115 - CESTAT, BANGALORE]

  Moreover, when w.e.f. 01/6/07 the activity of the appellant has been accepted by the Department as mining service, for the period prior to 01/6/07, the same activity cannot be classified as site formation and clearance, excavation and earth moving or as cargo handling service.

  The service tax demand for the period prior to 01/6/07 and also the penalty under Section 78 to that extent set aside. - Demand for the normal period of limitation and penalty u/s 76 confirmed - Decided partly in favor of assessee.

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• 2014 (3) TMI 78 - CESTAT MUMBAI
  

  Refund / Rebate claim - export of services - rebate claim were rejected on the premise that the appellant has contravened the condition of the said Notification, as they were not registered with the department prior to export and they have not filed their service tax returns before the department. Lastly, their claim of refund is barred by limitation - Held that:- Nature of services is they are rendering service on continuous basis without any commencement or terminal pint, and it is difficult to complete with the requirement "prior" to the date of export, except for the description of services. It was further held that if particular declaration are furnished with the service tax authorities along with documentary evidence are found to be correct, object of filing of declaration would be satisfied.

  In Textech International P. Ltd. [2010 (11) TMI 245 - CESTAT, CHENNAI] this Tribunal held that as per Section 69 of the Finance Act, 1994 a person who is liable for paying service tax is required to apply for registration. Admittedly, the appellant is although providing taxable service but the same is exempted therefore, they are not required to pay service tax, registration is not required. As the appellant is not required to pay service tax, therefore, they are not required to file service tax returns.

  Relevant date for filing refund in the case of export of service is in the date of receipt of payment of the exported service. as held in the case of Eaton Industries P. Ltd. [2010 (12) TMI 71 - CESTAT, MUMBAI] - Refund allowed - Decided in favor of assessee.

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• 2014 (3) TMI 77 - CESTAT NEW DELHI
  

  Waiver of pre deposit - Business Auxiliary Service - Availment of CENVAT Credit - Held that:- There is no dispute that since the year 2005 the appellant company is operating from Noida and in this regard they had obtained permission from the Company Law Board permitting the change of the name and registered head office. Ongoing though the facts narrated in the impugned order, it is seen that receipt of the service, in question, is not disputed. It is also not disputed that the service of renting of immovable property received by them is in respect of immovable property rented by them in Noida. The only ground on which the Cenvat Credit is sought to be denied is that the invoices of the service provider mention the old name and address and old registration number of the Appellant company and in some cases, while the new name of the Appellant Company -M/s. Drishtee Development and Communication Limited, their address in Noida is not their present address. Since the receipt of the service is not disputed, the impugned order, does not appear to be correct - Stay granted.

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• 2014 (3) TMI 76 - CESTAT NEW DELHI
  

  Assessable value - Whether the assessable value splited into two parts and one such part is called reimbursement of expneses shall form part of assessable value of the taxable service - Held that:- When show cause notice is looked into that leaves ample doubt against the appellant as to its modus operandi and prima facie compels to hold against the appellant. No agreement was made available to us to consider in favour of the appellant. We have gone through anxiety of the revenue and also looked into para 2.5 of the adjudication order. The expenses incurred were directly allocable to generate the service provided and no way can be held to be avoidable to call the same reimbursable for incremental value addition to the service. It appears that revenue lifted corporate veil to go inside the transactions for ascertaining the truth behind the operation. In the entire adjudication process, the Authority noticed evasive practice at different parts of the adjudication order.

  Appellant has adopted a novel way of splitting the consideration with nomenclature of reimbursement of expenses. Deliberate splitting is not possible to be ruled out when splitting is not intended by law. Once splitting is attributable to a motive, the appellant cannot get any shelter under the purview of law - Service tax to be deposited in installments - stay granted partly.

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• 2014 (3) TMI 75 - CESTAT BANGALORE
  

  Waiver of pre deposit - Demand of service tax - Previous order passed for pre deposit - Held that:- Since assessee made excess deposit of the amount ordered - Stay granted.

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• 2014 (3) TMI 74 - CESTAT CHENNAI
  

  Waiver of pre-deposit of tax - Interest u/s 75 - Penalty u/s 78 - Demand of tax - Business Auxiliar Service - Held that:- Business Auxiliary Service would cover ‘any service in relation to procurement of goods or services which are inputs for the clients’. The Commissioner observed that the procurement of goods or service by the service provider must be used by the manufacturer or the service provider as the case may be. In this case, the applicant booked the space for cargo for transporting of their clients goods, which has been utilized by the exporter/importer. Prima facie, it appears that the extra amount collected by the applicant is in relation to the procurement of that service - Conditional stay granted.

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• 2014 (3) TMI 38 - CESTAT CHENNAI
  

  Extension of stay order - Operation of the orders expired in terms of the 2nd and 3rd pvosisos to Section 35C(2A) of the Central Excise Act, 1944 – Held that:- An order of waiver of pre-deposit granted under provisions of Section 35F does not, either expressly or by any compelling implication, have a legislatively enjoined sunset period. Waiver of pre-deposit granted always operates during pendency of the appeal. Pre-deposit is a threshold requirement for triggering the substantive jurisdiction of the Tribunal.

  Pendency of the appeals are not on account of any conduct of the appellants but on account of pendency of a large number of older appeals and a critical supply/demand mismatch in the Tribunal - it is appropriate to grant extension of the stay orders earlier granted, to operate during the pendency of the appeals – Following decision of R. Ariyappan and M/s. OPG Metals Pvt. Ltd. and others Versus Commissioner of Central Excise & Service Tax, Tiruchirapalli [2013 (12) TMI 457 - CESTAT CHENNAI] - Stay granted.

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• 2014 (3) TMI 37 - CESTAT NEW DELHI
  

  Availment of CENVAT Credit - Whether the appellant liable to pay the service tax on the services received by them from offshore service provider under reverse charge mechanism of Section 66 A of Finance Act, 1994 read with Rule 2(1)(d)(iv) of Service Tax Rules, 1994 by utilizing the cenvat credit - Held that:- issue stands decided in favour of the appellant by the judgements of the three High Courts -judgement of Punjab & Haryana High court in the case of Nahar Industrial Enterprises (2010 (5) TMI 608 - PUNJAB AND HARYANA HIGH COURT), judgement of Delhi High Court in the case of Hero Honda Motors (2012 (12) TMI 734 - DELHI HIGH COURT) and the judgement of Hon’ble High Court of Himachal Pradesh in the case of Auro Spinning Mills (2011 (7) TMI 849 - Himachal Pradesh High Court). In view of this, it is these judgements which have to be followed - Decided in favour of assessee.

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• 2014 (3) TMI 36 - CESTAT MUMBAI
  

  Cenvat Credit of service tax - Brokerage, air travel booking, transportation for employees - Held that:- The word “business”, is as has often been said, one of the wide import and in fiscal statutes, it must be construed in a broad rather than a restricted sense”. The words “relating to” further widen the scope of the expression “activities relating to business”. On the aforesaid ruling, the Commissioner (Appeals) found a prima facie strong case in favour of the assessee and accordingly allowed the credit of service tax paid on the input services - there is no infirmity in the orders passed by the Commissioner (Appeals) - Following decision of COCA COLA INDIA PVT. LTD. Versus COMMISSIONER OF C. EX., PUNE-III [2009 (8) TMI 50 - BOMBAY HIGH COURT] - Decided against Revenue.

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• 2014 (3) TMI 35 - CESTAT CHENNAI
  

  Waiver of pre-deposit of tax - Interest u/s 75 - Penalties under Section 77 and 78 - Demand of tax - Construction of Residential Complex Service - Held that:- it appears from the Sale Deed and Construction Agreement that the applicant proposed to develop the property into a multi-storeyed residential complex not for personal use. Prima facie, we find that it is not a case that the applicant constructed the complex for personal use. Hence, the applicant has failed to make out a prima facie case for waiver of pre-deposit of the entire amount of tax and penalty - Conditional stay granted.

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• 2014 (3) TMI 34 - CESTAT BANGALORE
  

  Waiver of pre deposit - Cenvat Credit - Renting of Immovable Property - Input services i.e. Industrial or Commercial Construction Service - Held that:- prima facie, there was no direct nexus between the inputs/input services and the Renting of Immovable Property - Following decision of assessee's own previous case - Conditional stay granted.

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• 2014 (3) TMI 33 - CESTAT CHENNAI
  

  Service tax credit - Windmills maintained outside the factory - Held that:- Since the Tribunal has already granted stay in identical matters pre-deposit of balance dues is waived for admission of appeal in this case. Also its collection stayed during pendency of the appeal - Following decision of Hinduja Foundries Ltd. Vs CCE Chennai [2009 (9) TMI 543 - CESTAT, CHENNAI] - Stay granted.

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