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Service Tax - Case Laws
Showing 141 to 160 of 181 Records
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2018 (1) TMI 265 - CESTAT MUMBAI
Levy of service tax - service of business promotion provided by it to the service recipient - whether taxable under management or business consultancy service or otherwise? - Held that: - when the meaning of the business and management consultancy is provided by law is read, that does not cover land development charge within its fold to give rise to taxable event for the purpose of levy under Finance Act, 1994. Accordingly there shall be no levy on the land development charge under the category of business and management consultancy.
Penalty - Held that: - taking into consideration co-operation of the appellant who does not dispute the liability and has discharged the tax liability with interest, there shall not be penalty on this count under any of the provisions of the Finance Act, 1994 when order of the Authority below also does not exhibit contumacious conduct of the appellant to bring it to the ambit of Section 78 of Finance Act, 1994.
Appeal allowed in part.
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2018 (1) TMI 220 - MADRAS HIGH COURT
Condonation of delay in filing appeal - service of appellate order - Held that: - the certified copy of the appellate order dated 08.05.2013 has not been served, either on the assessee or the authorised representative, as the case may be, in the manner as contemplated under Section 37C(1)(a) of Central Excise Act, 1944 made applicable to Service Tax, as per Section 83 of Finance Act, 1994 - Computation of time for filing an appeal starts from the date of service of certified copy of the order. In the instant case on hand, certified copy has not been served, in the manner as stated. Hence, there is no delay in filing the appeal - appeal allowed.
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2018 (1) TMI 219 - MADRAS HIGH COURT
Principles of natural justice - the petitioner has not produced records, whereas all records are available - alternative remedy - Held that: - the question would be as to whether there were any documents placed by the petitioner or not and if documents were available, whether they were sufficient to show that the case requires to be decided in favour of the petitioner are all factual issues which the petitioner has to necessarily agitate before the Tribunal. The Tribunal being a fact finding authority is entitled to re-examine and examine the facts which may be placed before it and then come to a conclusion.
Merely because there will be a burden on the assessee to make pre-deposit cannot be a reason to byepass the appeal remedy available under the Act.
Petition dismissed as not maintainable.
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2018 (1) TMI 218 - RAJASTHAN HIGH COURT
Commission received in Foreign Currency for the services rendered in India - export of services or not? - Whether a service not being delivered outside India and not used outside India can be termed as export in violation of provisions of Export of Service Rules, 2005 and whose effective use and enjoyment was in India, in terms of the Board Circular No.141/10/2011-ITU dated 13.05.2011?
Held that: - there is no branch of the company with which the assessee has done his work and merely because subsidiary company has a Branch in India will not amount to branch of company with which the assessee has entered into a contract. The assessee has nothing to do with the subsidiary company - the contention that clause (3) of the Export Rules will come into operation, in our considered opinion, the language used wholly or subsidiary company having branch in India will not disentitle the assessee from benefit, therefore, he is not required to make payment of tax and he will be entitled for exemption.
Appeal dismissed - decided against Revenue.
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2018 (1) TMI 217 - ALLAHABAD HIGH COURT
Whether the CESTAT was correct in allowing the refund of Cenvat credit pertaining to the period prior to the registration of the respondent? - Held that: - Admittedly, in the case at hand, respondent was duly registered under the Cenvat Credit Rules at the time of making the application for refund under Rule 5 of the Rules - the CESTAT has not been committed any error of law in allowing the refund of the Cenvat credit pertaining to the period prior to the registration of the respondent with the department as registration is not a condition precedent for seeking refund except that party should be registered at the time of making application - appeal dismissed.
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2018 (1) TMI 216 - CESTAT NEW DELHI
Classification of services - renovation, restoration, maintenance work with reference to various buildings like hotels, hospitals etc - Revenue contended that the services rendered by the appellant are liable to be taxed under the category of construction service during the period 10/09/2004 to 15/06/2005 and repair and maintenance of immovable property service for the period 16/06/2005 to 25/07/2007 - appellants claimed that the services provided by them are essentially restoration and renovation of immovable property and accordingly they are eligible to avail abatement of 67% in the taxable value.
Held that: - an illustrative list of the various work executed by the appellant was provided. A brief of some of the sample work orders/contracts were also reproduced by the Original Authority in the said para. We have perused the same alongwith the applicable statutory entry relevant to construction services w.e.f. 10/09/2004. The relevant clause of the construction services in terms of Section 65 (3a) of the Finance Act, 1994 is “repair, alteration or restoration of, or similar services in relation to building or civil structure”.
Regarding change of classification w.e.f. 16/06/2005, the Original Authority recorded that in most of the contracts, the appellant used the term maintenance and even if they have sometimes used the term “restorations” it is more akin to maintenance as the services were of continuous nature for maintaining properly in the hotel premises. It was observed that whatever terms were used in the agreements or contracts, the same were examined in the overall context to understand the scope of work before classifying the same under management or maintenance.
CENVAT credit - payment of 6% / 8% on the value of exempted services - Rule 6 (3) (i) of the Cenvat Credit Rules, 2004 - Held that: the appellants have deposited the whole of Cenvat credit amounting to ₹ 2,97,310/- alongwith interest for delayed payment. As such, it should be considered that they have not availed such credit to attract the rigorous of Rule 6 (3) of Cenvat Credit Rules - the demand for the said amount for violation of Rule 6 (3) is not sustainable - penalty relevant to the said dispute is also liable to be set aside.
Extended period of limitation - Held that: - the appellants were engaged in providing such taxable service to various corporate entities in a large scale operation. In this connection, we have perused the findings of the impugned order justifying the demand for extended period.
The appeal filed by the appellant is dismissed except for setting aside the demand under Rule 6 (3) of Cenvat Credit Rules, 2004
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2018 (1) TMI 215 - CESTAT NEW DELHI
Rent-a-cab service - business of running of “radio taxies” and are providing transport services to both individual and corporate customers - scope of the term 'renting' and 'hiring' - whether the service would be taxable under the head Rent-a-Cab-Scheme Operator’s Service or not? - Held that: - The admitted facts of the case are that the respondent is providing various vehicles for transport of people. In respect of such transport for individual passengers for which consideration was received on the spot by the driver of the said vehicle, no service tax liability arises. This position is not in dispute.
Service to corporate clients - Held that: - services provided by the noticee being transportation of passenger from one point to another against specific call/request rather than to make available the vehicle for a particular time span, where possession and control of vehicle always lie with the noticee or driver, cannot be taxed under “rent-a-cab service’ by no stretch of imagination irrespective of charges per trip are fixed amount instead of per KM basis. - The Tribunal in APSRTC ADDAPA [2017 (11) TMI 773 - CESTAT HYDERABAD] held that when the contract is to hire a vehicle, there is no renting of cab.
Appeal dismissed - decided against Revenue.
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2018 (1) TMI 214 - CESTAT CHENNAI
Liability of service tax - transfer of use of the logo - Royalty income - Intellectual Property Right Service - extended period of limitation - Held that: - it is seen that the goods do have a separate trademark such as Levokast, Apiverin-M, Prestige etc. Apart from this, the packings also contain the ttklogo. Thus, though the goods use the logo, it cannot be said that it is a trademark for these goods, as these goods have separate registered trademark. Again, the appellants have registered the logo under the Copyright Act. Any infringement of right pertaining to the logo would fall under Copyright Act and not under Trademark Act. The provisions of Copyright Act describe the situations of protection afforded to the copyright. This is different from the rights attached to a trademark. The logo being registered as a copyright, in case of infringement of the same, the right falls within the Copyright Act and would be enforceable by the appellants under the said Act only and not under the Trademark Act.
The decision in the case of M/s ESPN Software India (P) Ltd. and M/s Turner International India Pvt. Ltd. Versus CST, New Delhi [2013 (10) TMI 1161 - CESTAT NEW DELHI] referred, where the Tribunal had occasion to analyse the dispute relating to cartoon characters. The assesse therein contended that these cartoon characters are artistic work and covered under copyright. Whereas, the Revenue alleged the same to be Trademark and raised the demand under IPR services - After analysing the definition of copyright and trademark, the Tribunal held that such cartoon characters fall under copyright only - The facts being similar in our view, the said decision is applicable to this case.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 213 - CESTAT MUMBAI
Construction of Residential Complex Service - taxability w.e.f 01.07.2010 - penalty - Held that: - the issue of levy was matter of dispute before the Hon’ble High Court and was under challenge and in such case it cannot be said that the Appellant had intention to evade tax or they had any malafide intention. The demand amount alongwith interest stand paid before issue of SCN - there is no reason to impose penalty u/s 77 and 78 of the FA, 1994 upon the Appellant - demand of tax with interest upheld - penalty set aside - appeal allowed in part.
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2018 (1) TMI 212 - CESTAT MUMBAI
Classification of services - Storage and warehousing services - Whether Facilitation & Administration charges, Auction Gr-1 charges and Shortfall charges would be taxable under the head Storage and warehousing services or otherwise? - Held that: - The very classification being in question including the taxability of the impugned service and appellant was not granted full opportunity of hearing on its pleadings both on taxability and classification, the adjudicating authority is expected to re-adjudicate the matter following due course of justice - appeal allowed by way of remand.
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2018 (1) TMI 211 - CESTAT MUMBAI
Non-speaking order - Held that: - the appellant was not provided with the basis why the ingredients like transportation and other additional charges were includible in the cargo handling charges provided by the appellant - Learned adjudicating authority shall cause enquiry and expose to the appellant the basis for determination of the liability for the period 26/08/2009 to 31/03/2010. Upon such exposure appellant shall defend its case making pleadings and adducing evidence if any, for satisfaction of that authority, who shall grant the appellant proper opportunity of hearing and shall pass appropriate order - appeal allowed by way of remand.
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2018 (1) TMI 210 - SC ORDER
Airlines business - classification - online information and database access or retrieval service – service received from foreign based service provider - the decision in the case of Jet Airways (I) Ltd. Versus Commissioner of Service Tax Mumbai [2016 (8) TMI 989 - CESTAT MUMBAI] contested, where it was held that the activities of CRS Companies would fall under the category of "online information and database access or retrieval service" - Held that: - the decision in the above case upheld - appeal dismissed.
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2018 (1) TMI 197 - RAJASTHAN HIGH COURT
Refund claim - time limitation - Section 11B of Customs Act - 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/- - appeal disposed off.
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2018 (1) TMI 171 - ALLAHABAD HIGH COURT
Rent a cab services - distinction between 'renting' and 'hiring' - appellant pleaded that he is not renting the cabs to GAIL rather the GAIL is hiring cabs for its use from the appellant - whether such a distinction between 'renting' and 'hiring' is necessary for deciding the taxibility of the above service? - Held that: - what is sought to be taxed under the Act is the service provided by a person under a rent-a-cab scheme. It makes no distinction between renting or hiring. The two terms have not been specifically defined under the Act and as such they have to be assigned the meaning which is acceptable in common parlance. Ordinarily, in common usage, there is hardly any distinction between 'renting' or 'hiring' and both the terms are usually used as synonym.
The appellant indulges in providing service under a rent-a-cab scheme in relation to a cab and therefore irrespective of whether he retains possession and control of the vehicle or passes it to the consumer, the service so rendered by him would fall within the taxable service as defined under Section 65 (105) (o) of the Act and is chargeable to tax under Section 66 of the Act.
The “rent-a-cab scheme” 1989 formulated by the Central Government in exercise of powers under Section 75 of the Motor Vehicles Act, 1988 providing for obtaining a licence by the operator of the scheme has nothing to do with the provisions relating to the imposition/chargebility of service tax. Therefore notwithstanding the above scheme, any person providing service of renting a motor cab would be amenable to service tax under the Act.
Appeal dismissed - decided in favor of revenue.
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2018 (1) TMI 170 - CESTAT CHENNAI
Banking and other Financial Services - profits earned on Foreign Exchange remuneration - whether the profit earned by the appellant on Foreign Exchange remuneration is a taxable service or not? - Held that: - The taxability of the same stands considered by the adjudicating authority in the adjudication, relatable to the refund claim filed by the appellant and the same stands upheld by the adjudicating authority and having not been appealed against holds the field - It may not be out of place once again to mention that the provision of Rule 6 (3) of STR, 1994, do not relate to dispute on the taxability and simplicitor allow the credit of the service tax already paid in respect of the services which are subsequently not provided by an assessee.
The assessee s refund claim filed under Section 11 B of Central Excise Act, 1944, having been rejected and not challenged the appellant s claim of suo motto credit involved in the present appeal cannot be accepted - appeal dismissed.
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2018 (1) TMI 169 - CESTAT CHENNAI
Port services - CHA service - Business Auxiliary Services - Held that: - the respondents are not engaged in port services. Further, the first issue they are not engaged in providing any service to the shipper by paying wharfage charges on actual basis. These are port charges and are getting reimbursed on actual basis from shipper lines. In any case, these charges are typically port services for which CHA is not authorized or involved - demand upheld.
Valuation - Crane hire charges - Held that: - hire charges are paid by the appellant on actual basis and reimbursed from the shipping lines - There is no element of services to the shipping lines as there is no payment over and above the reimbursable charges, which can be attributed to any taxable service.
Business Auxiliary services - Held that: - the Tribunal in the case of Bhuvaneswari Agencies Pvt. Ltd. Vs. CCE, Bangalore [2007 (7) TMI 665 - CESTAT BANGALORE], held that the activity of rendering services of arranging shipment of export cargo and negotiating the same with shipping lines on behalf of the clients will not fall under tax liability.
Appeal dismissed - decided against Revenue.
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2018 (1) TMI 168 - CESTAT CHENNAI
Demand of service tax - Health Services which was in force for a limited period from 1.7.2010 to 30.4.2011 - The expenses incurred for treatment was paid directly by the insurance company namely Star Health and Allied Insurance Co. Ltd. The appellants paid service tax under the said category of services after making some deductions. - Held that: - similar issue decided in the case of M/s. Arvinth Hospitals Versus The Additional Commissioner Central Excise, The Joint Commissioner Central Excise [2016 (11) TMI 238 - MADRAS HIGH COURT], where it was held that unless and until the Scheme has been examined in full, the respondent cannot come to a conclusion that the nature of transaction done by the petitioner would fall within the definition of Section 65(105)(zzzzo) of the Finance Act. Therefore, this Court is of the view that such an exercise is required to be done before coming to the conclusion as to what is the nature of service rendered and whether it is an Insurance Policy or it is a Welfare Scheme - the services rendered by the appellant would fall under taxable category of health service, has to be given reconsideration - matter remanded to the adjudicating authority who will reconsider the issue whether the services are taxable or not.
Extended period of Limitation - Held that: - As the main issue is remanded to the adjudicating authority, we leave this issue open with a direction to the adjudicating authority to decide the issue of limitation also in the denovo adjudication.
Penalty - Held that: - the issue being an interpretational one, also since the services were taxable for a limited period and as there was considerable confusion as to whether the services rendered under a scheme floated by the Government would fall within the category of Health Services for levy of service tax, we find that the appellant has put forward reasonable cause for not discharging service tax on the entire value raised in the Bill. It is a fit case to invoke section 80 of the Finance Act - penalty set aside.
Appeal allowed by way of remand.
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2018 (1) TMI 167 - CESTAT CHENNAI
Commercial Training and Coaching Services - education services by imparting various diploma courses in management and engineering through correspondence / distance education mode - Held that: - The Tribunal in the case of Commissioner of Service Tax, (Delhi) Versus Ashu Exports Pvt. Ltd. [2014 (3) TMI 863 - DELHI HIGH COURT] referring to the definition of vocational training institute observed that such institutes would fall within the ambit of the exemption notification - appeal dismissed - decided against Revenue.
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2018 (1) TMI 166 - CESTAT HYDERABAD
Refund of unutilized CENVAT credit - time limitation within one year of the raising of the invoices for export services or otherwise? - Held that: - the refund claims which are filed within one year from the date of the FIRCs needs to the appellant - appeal allowed.
CENVAT credit - various input services - whether CENVAT credit availed by the appellants on various services are right or otherwise? - Held that: - All the above services were received by the appellant in their premises is not disputed. We find that there is no dispute as to the fact that appellant had exported all their services and it is settled law if there is export of services, refund of the tax paid on input services needs to be allowed - appeal allowed.
Whether the First Appellate Authority was correct in remanding the matter as regards the issue of classification is correct or otherwise? - Held that: - there is no necessity to remand the matter back as the classification of the services. We find that even if it is in any of the services i.e. BAS, MCS, BSS the fact being the services are exported being not disputed appellants are eligible for the refund of the service tax paid on various input services.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 165 - CESTAT KOLKATA
Refund claim - Terminal Handling charges - GTA by Road - CHA service - Supply of Intangible goods service - Port services - EC and SHEC - Held that: - the Tribunal in the case of CCE, Belapur v. Pratap Re-rolling Pvt. Ltd. [2014 (9) TMI 814 - CESTAT MUMBAI] dismissed the appeal filed by the Revenue and allowed the refund of service tax on terminal handling charges (THC) incurred in respect of goods exported.
In the case of Sesa Goa Ltd. v. CCE Goa [2014 (12) TMI 785 - CESTAT MUMBAI], the Tribunal had allowed the refund claim on port service.
In the case of Chidambaram Ship Care Pvt. Ltd. v. CESTAT [2014 (2) TMI 1181 - MADRAS HIGH COURT], the Hon’ble Madras High Court held that statutory provisions relating to ports in allied acts cannot override taxation provisions. It has also been held that stevedoring services in a major or minor port is liable to service tax as port service.
In the case of Tumkar Minerals Pvt. Ltd. v. Commissioner of Central Excise, Goa [2015 (12) TMI 21 - CESTAT MUMBAI] allowed the refund of Education Cess and Secondary and Higher Education Cess paid during export of goods.
The appellant is entitled to refund of service tax paid on all the issues except the issues relating to GTA service and Supply of Intangible goods service which are required to be verified by the lower authority - appeal allowed in part and part matter on remand.
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