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Service Tax - Case Laws
Showing 121 to 140 of 209 Records
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2014 (7) TMI 542 - ALLAHABAD HIGH COURT
Tour and travel services - levy and collection of service tax from the assessee where principal tour operator has paid service tax - double taxation - foreigner tourists - packaged tour - valuation - inclusion of reimbursement of expenses - amounts received by the appellant from Principal Tour Operator (PTO) as reimbursement of actual expenses - validity of circular creating the service tax liability - extended period of limitation - levy of penalty - Held that:- the appellant is not able to adduce any evidence in the form of assessment order of the Principal Tour Operator or any other documents issued by the service tax authorities to substantiate the claim that service tax has been paid on the entire amount by the Principal Tour Operator, which includes the amount paid to the appellant. Merely on the basis of the certificates issued by the Principal Tour Operator enclosed with the memorandum of appeal, the claim of the appellant cannot be accepted inasmuch as it is doubtful whether these certificates have been filed before the authorities below.
Extended period of limitation - Held that:- The position regarding the taxable services provided to any person in relation to a tour has already been explained in the year 1997 and in 2001 itself. Therefore, the appellant ought to have given the information about the supplementary services being provided in ST-3 return or otherwise. In any view of the matter, such information without any doubt ought to have been given after 10.9.2004 when the definition of Tour Operator has been amended, but the appellant wilfully failed to disclose such information.
Further, appellant has availed the benefit of abatement/exemption under the Notification No. 39/97-ST to the extent of 60% of the total amount charged treating the entire services provided as a package tour, including the facilities such as Air and Railway Tickets, porterage, fooding and lodging, monuments visit services, guide services, and general assistance services etc. This clearly shows that the appellant was fully aware that it is a package tour in which supplementary services are also included, but failed to disclose the receipts towards supplementary service - Decided against the assessee.
Supplementary services claimed to have been received by way of reimbursement, on actual basis - Held that:- the amount paid to the appellant towards supplementary services, apart from the payments received towards transport services are liable to be included in the gross amount and are the value of taxable service which are liable to service tax.
Waiver of penalty levied u/s 78 invoking the provisions of section 80 - Held that:- Tribunal was in error in coming to the conclusion that there would be no occasion to establish a reasonable cause within the meaning of section 78, once, the extended period of limitation had been validly invoked under the proviso to section 73(1). If the analogy which has been used by the Tribunal is extended, it would have to be held that section 80 would have no application whatsoever to a case which falls within the purview of section 78 since as we have noted, the language of section 78 is similar to the language which is used in the proviso to section 73(1). Accepting such an interpretation would involve re-writing the provisions of section 80 by excluding the provisions of section 78 from the non-obstante clause which is contained in section 80. - therefore while confirming the levy of service tax, penalty set aside - Decided partly in favor of assessee.
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2014 (7) TMI 541 - CESTAT AHMEDABAD
Utilisation of cenvat credit for payment of service tax on GTA services - reverse charge - The appellants are availing the services of goods transport agency - period 01.01.2005 to 30.09.2005 and 01.10.2007 to 29.02.2008 - Held that:- assessee, a manufacturing unit paying Service tax on goods transport services, fall within the definition of ‘provider of taxable service’ under Rule 2(r) of Cenvat Credit Rules, 2004 which includes a person liable for paying Service tax. As such, it was held that payment of Service tax in respect of services rendered by Goods Transport Agency through Cenvat Credit was appropriate - Cenvat credit can be utilised towards payment of Service Tax in respect of services received from Goods Transport Agency inasmuch as by a deemed fiction of law service recipient is held to be output service provider - payment of service tax liability of GTA service by appellants through CENVAT Credit is as per law. As, there is no demand of service tax against the appellants, the penalties imposed on them under Section 76 & 77 of the Finance Act, 1994, and under Rule 15(3) of the CENVAT Credit Rules, 2004 are set aside - Following decision of Shree Rajasthan Syntex Limited Vs. Commissioner of Central Excise, Jaipur [2011 (8) TMI 265 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2014 (7) TMI 540 - CESTAT NEW DELHI
Demand of service tax - renting of immovable property - Leasing of buildings to Hotals - Held that:- The taxable service falling within the scope of Section 65(90a) and enumerated to be a taxable service under Section 65(105) (zzzz) is the renting of immovable property. A reading of clause (90a) and clause (zzzz) would indicate that a complex drafting methodology is adopted. Even in clause (90a) there are inclusionary and exclusionary clauses. Under this provision renting of immovable property or similar arrangement for use in course of or furtherance of business or commerce but excluding renting of immovable property by a religious body or to a religions body; renting of immovable property to an educational body, imparting skill or knowledge or lessons on any subject or field, other than a commercial training or coaching centre, are excluded. The Explanation under clause (90a) further defines the expression for use in the course or business or commerce and also incorporate a clarificatory clause for removal of doubts, not necessary for the purposes of these appeals. Similarly, in clause (zzzz) there are inclusionary or exclusionary clauses embedded.
Renting of immovable proper for a hotel is expressly excluded from the ambit of the taxable service in Section 65(105) (zzzz) - Following decision of Ambience Construction India Ltd. vs. Commr. of S.T. Hyderabad [2012 (11) TMI 653 - CESTAT BANGALORE]
Renting of buildings used for the purpose of accommodation including hotels, meaning thereby renting of a building for a hotel, is covered by the exclusionary clause and does not amount to an "immovable property", falling within the ambit of the taxable service in issue - Decided in favour of assessee.
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2014 (7) TMI 539 - CESTAT BANGALORE
Disallowance of CENVAT Credit - Invocation of extended period of limitation - Held that:- This is a case where the benefit of Rule 9(2) of CENVAT Credit Rules, was to be considered. In fact, the appellants had requested for this benefit. However, we find that this request has not at all been considered and ignored and has not been discussed also. In our opinion, the Commissioner should have considered the invoices/documents where the benefit of Rule 9(2) of CENVAT Credit Rules could have been extended and if the appellant was found to be eligible, given the benefit and thereafter denial of credit in respect of other cases should have been made. In the absence of any consideration of the request made by the appellant for the benefit of Rule 9(2), we consider it appropriate that the matter should be remanded at this stage for fresh adjudication after giving reasonable opportunity to the appellants to present their case. - Decided in favour of assessee.
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2014 (7) TMI 538 - CESTAT NEW DELHI
Appeal before commissioner (Appeals) - appeal was singed by the brother of assessee - non delivery of order to the assessee - Non observance of procedure prescribed in Section 37C - it is a fact, admitted by the Appellant himself, that he was neither residing at the old address nor having any contact with the persons residing there and it was for this reason that the pasted O-I-O did not come to his knowledge - Held that:- Commissioner (appeal’s) observation are in the nature of assumption and presumption. Even if the sending of the order would not have resulted in any other situation, as observed by Commissioner (Appeals), even then the Revenue was required to follow due procedure of law. It is not open to the Revenue to deviate from the law laid down under procedure of Rule 37C, even though following of the same would not have served any purpose. It has to be kept in mind that all the creations of the statue are required to follow the law in deciding the legal issues and there is no scope for any personal assumptive conclusions.
As the appellant received the order in July and during the relevant period, he was in jail, the appeal memorandum was signed by his brother - If the appellant was able to give the authorization to his brother, he could have very well signed the appeal papers himself. As the appellant, during the relevant period was in jail, as supported by his affidavit, filing of appeal under the signatures of his brother, may not be a serious objection, inasmuch as the same is a rectifiable defect and the applicant can sign the last page of the appeal, even subsequently and can rectify the defect.
The procedure prescribed under the Manual is not procedure prescribed by the legislation and is meant for convenience of litigants and in the given case can be deviated from - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 537 - CESTAT MUMBAI
Waiver of pre-deposit - business support service - Held that:- as the applicants are receiving certain amounts regarding registration of motor vehicles sold by them, prima facie the applicants have a strong case in their favour. Therefore, the pre-deposit of the dues is waived and recovery of the same is stayed during the pendency of the appeals - Stay granted.
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2014 (7) TMI 500 - CESTAT NEW DELHI
Penalty u/s 76 & 78 - Simultaneous penalty - Commissioner set aside penalty u/s 76 and sustained penalty 78 - whether imposition of simultaneous penalties under Sections 76 and 78 of the Act could be imposed, prior to amendment of Section 78 - Held that:- appeal arises out of an adjudication order dated 25.02.2008 passed by the Assistant Commissioner, Chandigarh, a quasi-judicial Authority functioning within the territorial jurisdiction of the Punjab and Haryana High Court. In the circumstances and in view of the decision of a Larger Bench of this Tribunal in Collector of Central Excise vs. Kashmir Conductor’s - [1997 (7) TMI 186 - CEGAT, COURT NO. II, NEW DELHI], the decision of the Punjab and Haryana High Court within whose jurisdiction the adjudicating authority exercises adjudicatory functions has to be followed and that constitutes the operative law. Consequently, in so far as the respondent -assessee is concerned, simultaneous penalties under Sections 76 and 78 cannot be imposed and the judgment of the Appellate Commissioner which is in conformity with the judgment of the Punjab and Haryana High Court in M/s First Flight Courier Limited (2011 (1) TMI 52 - High Court of Punjab and Haryana), is unassailable. - Decided against Revenue.
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2014 (7) TMI 499 - CESTAT NEW DELHI
CENVAT Credit - GTA service - transportation of finished goods - scope of "input service" as defined by Rule 2(l)(i) - upto the place of removal - Held that:- Service tax is levied on the service recipient against transport service availed. The appellant was recipient of service of transport for transporting its finished goods and such service suffered tax - The Board Circular No. 97/8/2007-ST dated 23.08.2007 appears to have overrided the provision of Cenvat credit Rules granting credit of service tax paid on transport service availed at post manufacture stage for delivery of finished goods at the door stop of the customer.
The definition of "input service" under Rule 2(l) of Cenvat credit Rules 2004 underwent amendment with effect from 01.04.2008 and with effect from 01.04.2011. Prior to 01.04.2011 and with effect from 01.04.2008 the said definition covered outward transportation "up to" the place of removal while the word "from" was used prior to that, in Rule 2(i) of aforesaid Rules.
The appellant is different from the recipient (sister concern) of the finished goods - Prima facie, the method of accounting followed does not change the incidence of taxation. Cenvat credit being a grant of law that should be interpreted in a manner that advances object of the statute. - stay granted partly.
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2014 (7) TMI 498 - CESTAT NEW DELHI
Consulting engineer service - scope of taxable service - levy on body corporate - Held that:- since the assessee is a company registered under the provisions of Companies Act, 1956, it falls outside the purview of the definition of ‘consulting engineer’ in Section 65(31) , as the provisions stood during the relevant period 2001-03. It requires to be noticed that with effect from 1.5.2006, Section 65(31) was amended to bring within the ambit of the definition of ‘consulting engineer‘, ‘anybody corporate’. Prior to 1.5.2006, consulting engineer is defined to mean ‘any professionally qualified engineer or any other firm who either directly or indirectly renders any advice, consultancy or technical assistance in any manner to a client in one or more disciplines of engineering.
It is only with effect from 1.5.2006 that a body corporate comes within the ambit of ‘consulting engineer’ service in Section 65(31). - therefore, respondent/assessee falls outside the purview of the definition ‘consulting engineer’, since it is a company registered under the Companies Act,1956, and the relevant period is 2001-03, prior to 1.5.2006 - Following decision of C.S.T., Bangalore vs. Turbotech Precision Engineering Pvt. Ltd. [2010 (4) TMI 344 - KARNATAKA HIGH COURT] and C.C.E.& Service Tax vs. Simplex Infrastructure & Foundry Works [2013 (5) TMI 336 - DELHI HIGH COURT] - Decided against Revenue.
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2014 (7) TMI 495 - CESTAT NEW DELHI
Waiver of pre-deposit - GTA services - transportation, insurance, installation, commissioning and conducting guarantee tests service - Held that:- Appellant entered into a contract with M/s.NTPC, which is a composite contract and one of the services to be provided by the appellant is GTA service for transportation of the goods from port to the premises of NTPC. The appellant, instead of undertaking the said services themselves further engaged M/s.Lee & Muirhead Pvt. Ltd. for doing the job. M/s. Lee & Muirhead Pvt. Ltd. further engaged a actual transporter for transporting the goods. The consignments notes issued by the actual transporter clearly reveal that the consignee of the goods is M/s.NTPC.
Admittedly, the appellant has not provided any such GTA service nor received any GTA service either from M/s.Lee & Muirhead Pvt. Ltd. or from the actual transporter. The service actually stands provided by the ultimate transporter, M/s. ESSEMM Logistics, Vizag to NTPC. It is the NTPC who is liable to pay freight to the service provider and it actually stands paid by NTPC to M/s. ESSEMM Logistics, Vizag, may be through the appellant and through M/s. Lee & Muirhead Pvt. Ltd. In such a situation, it has to be prima facie held that the appellant as also M/s. Lee & Muirhead Pvt. Ltd. were also facilitating the transportation of the cargo, or were acting as an controlling agent for getting the work of transportation done. The appellant having neither actually provided GTA services nor having received the same, cannot be, in our prima facie view, called upon to pay any service tax liability as recipient of the GTA services - Stay granted.
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2014 (7) TMI 494 - CESTAT MUMBAI
Extended period of limitation - photography services - Penalty u/s 76, 77 & 78 - CENVAT Credit - Held that:- During the period 2006-07 and 2008-09, the respondents collected the service tax but did not pay the same to the department. Further, during the period they have not filed the service tax returns also. If the investigation was not conducted by the department and the statement had not been recorded on 13.12.2008, the facts of collection of service tax and not paying the same with the Government treasury would not have come into the knowledge of the department. In these circumstances, I hold that the respondents have suppressed the material facts of the collection of service tax from the customers and not paying the same with the department. - demand confirmed alongwith interest and penalty - Decided in favour of Revenue.
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2014 (7) TMI 493 - CESTAT NEW DELHI
Demand of service tax beyond the scope of Show cause notice - Business support service - Cleaning services of toilets and coaches in trains - Held that:- The show cause notice had been issued on the basis that the activity of the appellant - cleaning of coaches and toilets of certain trains and supply of bed rolls to the passengers of ACs coaches is the ‘support service of business or commerce’ covered by Section 65 (105) (zzzq) readwith Section 65 (104c) of the Finance Act, 1994. There is no allegation in the show cause notice that in the alternative the Appellant’s services may be taxable as ‘business auxiliary service’ under Section 65 (105) (zzb) readwith Section 65 (19) (vi). The Commissioner (Appeals) in the impugned order after giving a finding that the Appellant’s activity is not ‘support service of business or commerce’ has gone on to examine the taxability of their activity as ‘business auxiliary service’ under Section 65 (105) (zzb) readwith Section 65 (19) and in doing so, he has traveled beyond the scope of show cause notice which is not permissible in view of the judgment of the Apex court in the cases of CCE, Nagpur vs. Ballaspur Industries Ltd. reported in (2007 (8) TMI 10 - SUPREME COURT OF INDIA ) and CCE, Bangalore vs. Brindavan Beverages (P) Ltd. reported in 2007 (2007 (6) TMI 4 - SUPREME COURT OF INDIA). In view of this, the impugned order is not sustainable - Decided in favour of assessee.
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2014 (7) TMI 453 - CESTAT KOLKATA
GTA Services - services received at their Kharagpur Unit, they have discharged the service tax at Pune - Held that:- whatever services received from goods transport agency at their Kharagpur Unit, appellant have discharged the service tax at Pune. They have placed a Chartered Accountant’s certificate in support of such claim which the Ld. Commissioner has not considered while arriving at the conclusion that the payment at Pune for liability of Kharagpur Unit is not supported by proper evidences. Now, the appellants have produced the letter from the Superintendent , Service Tax Pune-II Commissionerate whereby the Range Superintendent mentions that the Service Tax for the period 2005-2006 to 2007-2008 of Kharagpur Unit has been discharged at Pune - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 452 - CESTAT AHMEDABAD
Penalty u/s 78 - Service tax and interest paid before issuance of SCN - whether penalty under Section 78 of Finance Act, 1994 is attracted upon the appellant or not - Held that:- It is not coming out of the case records as to how much Service Tax received by the appellant was retained and for how long. This aspect has to be seen by the adjudicating authority whether the period of retention of Service Tax remitted by the service recipient to the appellant, was reasonable or not, for deciding the quantum of penalty. As this verification can be done only by the adjudicating authority, therefore, the matter is required to be remanded to the adjudicating authority - Decided in favour of assessee.
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2014 (7) TMI 451 - CESTAT MUMBAI
Denial of Refund claim - Export of Business Auxiliary Service - Revenue contend that as the goods have been marketed in India therefore, the service has been received in India - However, commissioner allowed claim following CBEC Circular No. 111/05/2009 dated 24.02.2009 - Held that:- Telecom service provided in India to International in-bound roamers registered with foreign telecom network operator, payment received from impugned foreign telecom operators in convertible foreign exchange, in that set of facts this Tribunal has held that the service have been provided outside India as an export of service. IN this case, the respondent is in a better footing than in the case of Vodafone Essar Cellular Ltd. (2013 (7) TMI 178 - CESTAT MUMBAI) wherein it was held that the service recipient is the foreign telecom service provider and not the subscriber of the foreign telecom service in India and providing service in India and it is a case of export of service. In the circumstance, I hold that the learned Commissioner (Appeals) has rightly held that the case of export of service as per Rule 3 (1) (iii) of Export of Service Rules, 2005. In the circumstances, I do not find any infirmity with the impugned order and the same is upheld - Decided against Revenue.
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2014 (7) TMI 450 - CESTAT AHMEDABAD
Waiver of pre deposit - Non compliance with pre deposit order - Held that:- First appellate authority's order of directing pre-deposit of 25% of tax amount and 25% of the penalty seems to be excessive. In our view, the ends of justice will be met of the appellant is directed to deposit ₹ 5 lakhs for hearing and disposing the appeal on merits. Accordingly, we direct the appellant to deposit an amount of ₹ 5 lakhs (Rupees Five Lakhs only) within a period of eight weeks from today and report compliance before first appellate authority on or before 26.05.2014. The first appellate authority, on ascertaining such a compliance, shall restore the appeal to its original number and dispose of the same on merit, without insisting for any further deposit - Decided conditionally in favour of assessee.
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2014 (7) TMI 449 - CESTAT NEW DELHI
Valuation - Short payment of service tax - value of taxable services, as declared in the ST-3 Returns during each financial year was much less than the gross amount received for providing various services, as declared on the balance sheets - civil and industrial construction - w.e.f. 01.06.07 this activity was classifiable as "Works Contract Service" under section 65(105)(zzzza) - Held that:- it is seen that the service tax demand on the civil and industrial construction service has been confirmed on the gross amount charged while during the period prior to 01.06.07 the appellant were eligible for exemption under Notification No.1/2006-ST dt. 01.03.06 and accordingly were liable to pay duty on 33% of the gross amount charged if they satisfied the conditions for this notification. During period w.e.f. 01.06.07 their service is classifiable as "Works Contract Service" and in term of Rule 2A of the Service Tax Valuation Rules, the value of the goods supplied for provision of service tax on which the VAT/Sales Tax had been paid would have to be excluded, but this has not been done. Moreover, during period from 01.06.07 in respect of "Works Contract Service", the appellant would also eligible for compounded rate under Works Contract Service (Composition Scheme for Payment of Service Tax) Rules, 2007 if they satisfy the conditions prescribed in this regard but their eligibility for Compound Levy scheme has also not been considered - impugned order is not sustainable - order set aside - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 448 - CESTAT NEW DELHI
Demand of service tax - rent a cab service - Suppression of income - whether the excess income reflected by the appellant in their balance sheet or in the income tax returns is relatable to his activity of rent a cab or not - Held that:- no evidence adduced by the appellant showing that the excess income was being earned by the party by suppressing the value of rent a cab services, we prima facie agree with the appellant that they have a strong case - Commissioner (Appeals) has rejected their legal issue of even rent a cab service not being a taxable service on the ground that it has been raised for the first time before him and is hit by the provision of Rule 5. On going through the said rules, we find that the same relate to production of additional evidence for the first time before Commissioner (Appeals) and not to the legal issues raised before him. Such legal issues can be raised before the appellate authorities and are required to be decided by him. - Matter remanded back - Decided in favour of assessee.
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2014 (7) TMI 447 - CESTAT CHENNAI
Waiver of predeposit of tax - Denial of availment of CENVAT credit on outward freight and the warehousing of the final products after clearance of final products from the factory gate - Held that:- applicant is not eligible for availment of the credit of warehousing charges of the final products after clearance from the factory gate. Regarding the denial of credit on outward freight, the learned counsel submits that they have produced the documents that the invoices were raised on FOR destination basis which was not considered by the adjudicating authority. On perusal of the impugned order passed by the Commissioner (Appeals), I find that there is an observation that the applicant had not produced copies of documents such as agreement or so that the place of delivery is the door step of the buyer and the value of goods sold in inclusive of transportation charges. It is further observed that the copies of documents such as invoices submitted contain the remark “prices indicated are tentative”. - Conditional stay granted.
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2014 (7) TMI 412 - CESTAT NEW DELHI
Demand of service tax - Repair and maintenance service - Held that:- As regards the service tax demand based on the repair and maintenance service alleged to have been provided by the respondent, we find that during the period of dispute, the repair and maintenance service which was taxable was that activity of repair and maintenance which was in terms of some contract or agreement, while according to the findings of the Commissioner (Appeals), no evidence has been produced by the Department that the repair and maintenance jobs of the respondent were in terms of some contracts or agreements. Therefore, we do not find any infirmity in the finding of the Commissioner (Appeals) that the respondents activity did not attract any service tax
As regards, the allegation that the respondent have provided the Business Auxiliary Service, - the activity which has been treated by the Department as Business Auxiliary Service, as described in the grounds of appeal, is fabrication of steel storage tanks, dozers and settlers, steel structures, steel platforms, railing, foundation frames etc. and their erection and installation in the factory. While fabrication of tanks and steel structures being manufactured is not production or processing not amounts to manufacture, the erection and installation of tanks, dozers, settlers, and steel structures is certainly not covered by any clause of Section 65 (19). Therefore, we agree with the findings of the Commissioner (Appeals) that this activity of the respondent is not covered by the definition of Business Auxiliary Service and hence the same is not taxable - Decided against Revenue.
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