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Service Tax - Case Laws

Showing 121 to 140 of 145 Records

• 2011 (9) TMI 231 - CESTAT, NEW DELHI
  

  Violation of principle of natural justice - No defence reply was filed by the appellants - Appeallant contended that show cause notice, though sent by registered post, was not received by them As such, the question of filing of any defence reply or seeking any personal hearing does not arise - Decided that impugned order in original stands passed by the adjudicating authority without the appellant having placed their defence submissions before him - Hence, held that remand the matter to original adjudicating authority for fresh decision - appellants would be given an opportunity of personal hearing before deciding the matter - Stay petition and appeal gets disposed off.

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• 2011 (9) TMI 216 - ANDHRA PRADESH HIGH COURT
  

  Levy of VAT - Goods - Article 366(12) of the Constitution of India and Section 2(16) of the Act. - SIM cards, recharge coupon vouchers, mobile telephone rentals on post paid connections, value added services such as ring tones, music down loads, wall papers etc. - Held that:- SIM cards, recharge coupon vouchers, mobile telephone rentals on post paid connections, value added services such as ring tones, music down loads, wall papers etc., and proceeds received on sharing of infrastructure cannot be subjected to tax either under Section 4(1) or Section 4(8) of the A.P. VAT Act, 2005.

  Telephone instruments, mobile handsets, modems and Caller ID instruments are "goods" both under Article 366(12) of the Constitution of India and Section 2(16) of the Act. - In case these goods are sold or supplied to the subscribers by the service providers such"sale" or the “transfer of the right to use these goods” would be liable to tax either under Section 4(1) or Section 4(8) of the Act. - However, if, these goods are procured by the subscribers from suppliers, other than the service providers or their distributors/franchisees, the monthly charges, which the subscriber is called upon to pay by the service provider, would fall within “telecommunication service” and cannot be made liable to tax under the Act.

  If non-refundable deposits are collected, by the service providers from their distributors, as security deposit for supply of SIM cards, recharge voucher coupons and the like, such deposits would not fall within the ambit of "goods" and cannot be brought to tax under the provisions of the Act. - If, on the other hand, the non-refundable deposit is received against supply of telephone instruments, batteries, accumulators etc., and it is established that the said deposit is a disguised form of consideration either for the sale or for the transfer of right to use such goods, then these deposits would form part of the sale consideration and be subject to tax under the provisions of the Act. - Likewise, if refundable deposits are collected from post paid subscribers as security for payment of dues towards STD or ISTD facilities provided by the service provider, then such deposits, not being "goods", cannot be brought to tax under the Act. - If, however, the refundable deposits are for supply of telephone instrument, hand set etc., which are "goods" and it is established that the deposits are a disguised form of sale consideration, then these refundable deposits may also form part of the sale consideration under Section 2(29)(b) of the Act, and would be chargeable to tax under Section 4 thereof.

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• 2011 (9) TMI 199 - CESTAT, NEW DELHI
  

  Photography service - inclusion of value of paper, chemicals and other materials - Section 67 - held that:- the issue on merits is no more res integra and stands settled in favour of the Revenue by the Larger Bench decision of the Tribunal in the case of M/s. Agrawal Colour Photo Industries vs. Commissioner (2011 -TMI - 205988 - CESTAT, NEW DELHI (LB)). It stands held in the said decision of the Larger Bench that the value of services in relation to photography would be the gross amount charged including the cost of goods and material used and consumed in the course of such services.

  Extended period of limitation - suppression of facts - Held that:- since the earlier decisions of the Tribunal were in favour of the assessee, it has to be held that there was bonafide doubt about the inclusion of the cost of material in the cost of services. If that be so, no malafide can be attributable to the appellant so as to invoke the extended period of limitation. - demand beyond the normal period of limitation dropped.

  Penalty - held that:- while re-quantifying the demand falling within the period of limitation, no penalty is required to be imposed on the appellants inasmuch as we have already held that there is no malafide on the part of the assessee who could have entertained the reasonable belief that the value of material is not required to be added in the value of services being provided by them.

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• 2011 (9) TMI 194 - CESTAT, AHMEDABAD
  

  Labour supply service - SSI exemption - non supply of relied upon documents (RUD) to the assessee while issuing SCN - Held that:- the matter is required to be remanded to original adjudicating authority, who shall provide copies of relevant documents to the appellant and also details received by the Department from the service receiver which forms the basis of Show Cause Notice. The appellant had admitted the Service Tax liability and the question is of calculation of service tax amount payable for the period during which service was rendered and eligibility or otherwise of the assessee for SSI exemption for the year 2005-2006.

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• 2011 (9) TMI 193 - CESTAT, AHMEDABAD
  

  Export of goods - refund of service tax under Notification No.41/2007-ST, dt.6.10.07 - port service - storage or warehousing service - insurance service - Technical Testing & Analysis services - Held that:- Regarding Technical Testing & Analysis services, the notification provides for refund only when such service is received in terms of written agreement with the buyer. Since there is no written agreement, refund is not admissible. - refund not allowable.

  The refund claim as regards Port service is admissible and allowed and as regards Service Tax on insurance, the appellant shall submit a statement before adjudicating authority for calculating admissible refund. - matter remanded back.

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• 2011 (9) TMI 180 - DELHI HIGH COURT
  

  Direct-to-home (DTH) service - Levy of entertainment tax or service tax - Legislative powers of State Govt - Broadcasting service falling within the meaning of taxable service under section 65(105)(zk) of the Finance Act, 1994 - It contended on behalf of the petitioners that Parliament alone has the exclusive power to tax DTH services and that the States do not have any power to tax the said service by any name called. - Held that:- The petitioners have provided the infrastructure for downlinking signals of TV channels and of up-linking them to their Ku Band designated transponders and so on till the signals are viewable by a subscriber on his TV set or display monitor. By allowing the flow of content through their infrastructural setup they are providing a service. For doing so they are subjected to service tax under the service tax regime put in place by Parliament in exercise of its legislative power under article 246 of the Constitution read with Entry 92C of List I of the VIIth Schedule thereto. Under the said Act, the subject matter of the tax is the entertainment provided by the content that flows through the petitioners' system. The DTH service provider, in a sense only acts as a conduit between the content providers (i.e., TV Channels) and the content viewers (i.e., subscribers). It is the entertainment derived from the content that is the subject-matter of the tax under the said Act and not the service of enabling the flow of content through the DTH system. There is no scope of confusing one for the other.

  The conclusion is clear that the State Legislature had (and has) the legislative competence to levy an entertainment tax on all payments for admission to an entertainment through a direct-to-home (DTH) as contemplated in section 7 and other provisions of the said Act. - Decided against the assessee.

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• 2011 (9) TMI 152 - CESTAT, AHMEDABAD
  

  CENVAT Credit of Service Tax- GTA service - Credit of Service Tax paid on GTA service during the period March 2007 to March 2008 has been denied on the ground that the definition of input service does not cover the Service Tax paid on GTA service after removal of the goods from the factory- as such the issue has already been decided by Larger Bench in the case of ABB Limited - (2009 -TMI - 34139 - CESTAT, BANGALORE) - Hon'ble High Court of Karnataka has upheld the view taken by Larger Bench (2011 -TMI - 203985 - KARNATAKA HIGH COURT)- Hon'ble High Court of Karnataka has held that upto 31.03.08, the credit of Service Tax paid on GTA service would be admissible from the place of removal in respect of transportation of goods - amendment 1.4.08, replacing the words 'from the place of removal' by 'upto the place of removal', cannot be read to have retrospective effect - appellant is eligible for credit on Service Tax paid and allow the appeal - - decided in favor of assessee

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• 2011 (9) TMI 151 - CESTAT, AHMEDABAD
  

  Service Tax liability under the category of Business Auxiliary Service for sales, purchase of SIM cards - Commissioner (Appeals) has dismissed the appeal only for non-compliance of the Stay Order and not on merits. - appellant directed to deposit an amount of Rs.3 lakhs (Rupees Three Lakhs only) as pre deposit - Ld. Commissioner (Appeals), after ascertaining compliance ordered as above, will restore the appeal to its original number and decide the matter on merits.

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• 2011 (9) TMI 144 - CESTAT, MUMBAI
  

  Services of Custom House Agent (CHA) - export of goods - the issue regarding availability of the cenvat credit on services rendered by the CHA in respect of the goods being exported to the foreign countries has already been decided by this tribunal vide order reported in (2010 -TMI - 203871 - CESTAT, MUMBAI ). It is also noticed that the lower authorities are now started giving the benefit to the appellants as shown by the Orders-in-Original submitted by the ld.counsel during the course of hearing. - Benefit of Cenvat Credit allowed to assessee.

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• 2011 (9) TMI 130 - CESTAT, MUMBAI
  

  Refund of service tax - service tax paid to the Custom House Agent (CHA) services in respect of the goods exported - Held that:- In the light of the clarification given by the CBEC and also order of this Tribunal in Hindustan Gum & Chemicals Ltd. vs. CCE (2010 -TMI - 201534 - CESTAT, AHMEDABAD) it is clear that the exporter claiming refund of service tax has to furnish only documentary evidence in support of his payment of service tax to the service provider. He is not required to submit any evidence of the payment of service tax by the service provider to the exchequer and the same is not provided for, for claiming refund under Notification 41/07-ST dated 06.10.07.

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• 2011 (9) TMI 129 - CESTAT, MUMBAI
  

  CENVAT credit of service tax paid on goods transportation service in respect of outward transportation of goods - Held that:- As regards the period on or after 1.4.2008, in view of the change definition of input service the Hon'ble High Court of Karnataka in ABB Ltd. (2011 -TMI - 203985 - KARNATAKA HIGH COURT) has held that the interpretation placed by the Tribunal on the words activities related to business as including clearance of final products from place of removal occurring in first part of rule 2(l)(ii) prior to 1.4.2008 runs counter to language employed in the second part of definition of input service and is to that extent contrary to the legislative intention and therefore unsustainable in law. Therefore, the appellate Commissioner s order is not sustainable in law for the period after 1.4.2008 unless the appellant satisfies all the conditions prescribed in the Board circular dated 23.8.2007 and accordingly the departmental appeal is partly allowed.

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• 2011 (9) TMI 126 - CESTAT, MUMBAI
  

  Maintenance and repair service - service tax collected but not deposited - appellant has not intimated the payment of service tax to the Central Excise officer though they have filed the return for October 2006 to March 2007 on 5.10.2007. There is no communication in the said return about the tax liability that has been discharged by them amounting to Rs.1,30,477/- for the period from October 2006 to December 2006. - demand of service tax penalty upheld.

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• 2011 (9) TMI 125 - CESTAT, MUMBAI
  

  Penalty u/s 76. 77, 78 - Non payment of service tax on maintenance or repair charges - Held that:- As contended by the learned SDR that some of the activities may not fall under the maintenance and repairs services, the same needs to be verified by the original authority. The fact that the respondent is eligible for small scale exemption to the service tax provider is also required to be verified by the original authority. Therefore, the case is remanded back to the original authority for deciding the matter afresh after affording an opportunity to the respondent of being heard.

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• 2011 (9) TMI 122 - CESTAT, MUMBAI
  

  Commercial and industrial construction services - Held that:- The activity of construction of sports complex/stadium cannot be termed as commercial and industrial construction. - on the activity of construction of shops, the appellants are liable to pay service tax, therefore, re-quantification of demand of service tax is required - matter remanded back for re-quantification.

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• 2011 (9) TMI 121 - CESTAT, MUMBAI
  

  Refund - Payment of service tax earlier under wrong classification - Change in the classification - from Online Information and Database Access or Retrieval services to Business Auxiliary service - Notification No.14/04-ST dated 10/09/2004. - Principle of natural justice - Held that:- while passing the the principles of natural justice has been violated. - matter remanded back for passing fresh order on merit.

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• 2011 (9) TMI 120 - PUNJAB AND HARYANA HIGH COURT
  

  Whether the CESTAT was correct in holding that the service of transportation of employees of a factory to the factory was an ‘input service’ under the ambit of definition of ‘input service’ as given under Rule 2(I) of the Cenvat Credit Rules, 2004 and consequently the credit of service tax paid on such service was allowed to be taken as credit under the said Rules of 2004 - Held that:- We respectfully agree with the findings recorded by the Bombay High Court in Coco Cola’s case (supra). The judgment rendered in Coca Cola’s case (2009 -TMI - 34433 - BOMBAY HIGH COURT) has also been followed in Semco Electrical Pvt Limited vs. CCE Pune (2009 -TMI - 76184 - CESTAT, MUMBAI). The reasoning given by the Tribunal is a possible reasoning which does not give rise to any substantial question of law. - Decided in favor of assessee.

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• 2011 (9) TMI 114 - KARNATAKA HIGH COURT
  

  Penalty under Sec. 76 - The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act. Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid - Therefore, authorities have no authority to initiate proceedings for recovery of penalty under Sec. 76 of the Act - The appeals are dismissed in favour of assessee.

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• 2011 (9) TMI 113 - BOMBAY HIGH COURT
  

  Waiver of pre-deposit - The Central Board of Excise and Customs has in its circular dated 18 December 2006, clarified that it is of the view that activities performed by sovereign/public authorities under the provisions of law are in the nature of statutory obligations which are to be fulfilled in accordance with law. The fee collected by them is for performing such activities and is deposited in the Government Treasury - Such activity is purely in public interest and it is undertaken as a mandatory and statutory function, and is not in the nature of a service provided to any particular individual for consideration - In these circumstances, the Tribunal was not justified in imposing a requirement of deposit of an amount of ₹ 4,88,48,874/- The Appellant is a statutory body - But apart from that, the question as to whether the Appellant carries on the business of rendering services relating to the security of any property including the business of providing security personnel is a serious triable question - Consequently an order for pre-deposit was not warranted in the circumstances of the case.

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• 2011 (9) TMI 112 - DELHI HIGH COURT
  

  Pandal or shamiana - Hindu Marriage - Social function - Imposition of service tax under Section 65(105)(zzzz) and Section 66 of the Finance Act, 1995 - the statute itself postulates that marriage is to be regarded as a social function and full effect has to be given to the same - That apart, the pre-requisite is the use of 'pandal or shamiana' and, therefore, the contention raised by the learned counsel that Hindu marriage is not a contract but a sacred institution and hence, no service tax is imposable treating it as a social function has to be repelled and we so do - decided in favor of revenue.

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• 2011 (9) TMI 110 - CESTAT, AHMEDABAD
  

  Waiver of pre-deposit - Find that the learned Commissioner (Appeals) has rejected the appeal for non compliance of the stay order, but Tax challan at page No.66 of appeal Memoranda indicates clearly that amount has been deposited as per the stay order passed by the learned Commissioner (Appeals) - If that be so, the rejection of the appeal for non compliance seems to be incorrect - Hence, appellant is directed to produce the original copy of the challan before the learned Commissioner (Appeals), who after ascertaining compliance hear the appellants on the merits of the case and pass an order - Appeal is allowed by way of remand.

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