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Service Tax - Case Laws
Showing 181 to 200 of 205 Records
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2017 (4) TMI 228 - CESTAT HYDERABAD
Refund claim - denial on the ground that the appellants did not produce Bank Realisation Certificate (BRC) in terms of Appendix 22 (A) as prescribed by the Directorate General of Foreign Trade and also that they did not furnish the SOFTEX returns from the STPI authorities as per the Foreign Exchange Management Act, 1999 - Held that: - The appellant while filing the refund claim, has submitted documents alongwith covering letter dt. 29.3.2013. It is stated in this covering letter that they have furnished the Bank Realisation Certificate - The appellants have already produced the BRC as well as FIRC which is evident from their covering letter, the rejection of refund claim on the ground that the appellant has not produced BRC in terms of Appendix 22A is unsustainable.
The second ground for rejection of the refund is that the appellant has not produced SOFTEX returns from STPI authorities. Again, the said document as per Foreign Exchange Management (Export of Goods & Services) Regulations, 2015, shows that it relates with export of goods and software and not with regard to export of services - The above regulations shows that the insistence to furnish SOFTEX returns from STPI authorities is not as per law laid in the relevant field.
The refund claim has been wrongly rejected - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 227 - CESTAT CHANDIGARH
Construction of Complex Services - demand - The appellant is contended that the flats constructed by the appellants as works contract and is liable to pay service tax @ 2% amount received from Haryana Housing Board. It is a contention of the appellant is that for period prior to 01.06.2006-2007, the appellant is not liable to pay service tax - Held that: - there is composite contract which is in nature of work contract was awarded to the appellant on 13.06.2006, therefore, for the period prior to 01.06.2007, the service tax cannot be levied on the amount received by the appellant prior to 01.06.2007 - for the period post 01.06.2007, the appellant is liable to pay service tax. As per N/N. 32/2007 ST dt. 22.05.2007, the appellant is at the liberty to pay service tax @ 2% of the total receipt or to pay service tax as per work contract, the appellant is opted to pay @2% at the amount received - Further, as appellant has not received any amount towards service tax from Haryana Housing Board; therefore, the receipt amount is to be taken as cum service tax and benefit of cum service tax is to be given to the appellant.
The matter is remanded back to the Adjudicating Authority after setting aside the impugned order to re-quantify the demand as discussed above after deciding the issue of extended period of limitation - appeal allowed by way of remand.
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2017 (4) TMI 226 - CESTAT BANGALORE
Recovery of service tax - works contract - the case of appellant is that the Department has wrongly confirmed the demand of service tax on works contract service when they were rendering services of Construction of Residential Complex which is under the provisions of Section 65 (105)(zzzh) of the FA, 1994 - Held that: - The appellants were rendering construction of complex service as they were designing, planning, developing and clearing site on their own land for construction activities for buyers/clients and were not doing any execution of works contract and elements of definition of works contract , therefore, are not found present - paragraph 3 of C.B.E.C. Circular No. 108/2/2009-S.T. dated 29.1.2009 says that the persons who are providing services of construction of residential complex in the form of designing, planning, developing and so on will not be subject to service tax as such services would fall under the exclusion provided under definition of residential complex - demand set aside - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 225 - CESTAT MUMBAI
Delayed payment of tax - reverse charge - whether a notice u/s 73(1) of FA, can demand interest or, for that matter, whether a penalty can be imposed for non-payment of interest? - Held that: - The inclusions and exclusions with particular reference to the transactions of associate enterprise for computation of the tax liability is the intention of the valuation section. It does not purport or pretend to determine the point in time when tax becomes liable. That is envisaged elsewhere but, not having been invoked in the show cause notice, is not relevant in this proceeding. Consequently, the finding advanced in the impugned order to fix the moment of taxability by reference to the quantification provision does not have to be examined further - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 209 - CESTAT NEW DELHI
CENVAT credit - duty paying documents - whether Cenvat credit may be taken by the appellant on the basis of the debit notes received by them from the service providers? - Held that: - Cenvat credit should not be denied simply on the basis that they are debit notes and are not documents specified under Rule 9(1) of the CCR, 2004 - as long as such debit notes contained all requisite information as prescribed under Rule 9(1), these should be considered on par with invoices and, hence, credit cannot be denied - in the present case, the debit notes contained all necessary details, the credit is thus allowed - appeal allowed - decided in favor of assessee.
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2017 (4) TMI 161 - SC ORDER
Cenvat Credit - scope of input services - the case of M/s Infosys Ltd. Versus Commissioner of Service Tax, - BANGALORE, [2014 (3) TMI 695 - CESTAT BANGALORE], brought into record, as the same was not part of record - cost of ₹ 10,000/- is imposed to be deposited.
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2017 (4) TMI 160 - BOMBAY HIGH COURT
Penalty u/s 73 of the Act - invocation of section 80 - contract of construction works - Held that: - The Tribunal rightly held that if the service tax liability and the interest thereon is discharged on the direction of the Central Excise officers, there was no need to issue a SCN - In the circumstances of the case, we do not find any reason to interfere with the order of the Tribunal in which the Tribunal has exercised the discretion in favour of the respondent by invoking the provisions of Section 80 of the Act - appeal dismissed - decided against Revenue.
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2017 (4) TMI 159 - CESTAT KOLKATA
100% EOU - refund claim - rejection on the ground that the claim was filed after expiry of one year from the relevant date in terms of Section 11B of the CEA, 1944 - Held that: - Tribunal in the case of M/s Paul Mason Consulting India (P) Ltd. Vs. CCEx., & S.Tax, Vadodara [2015 (12) TMI 1056 - CESTAT AHMEDABAD], observed that the refund claim filed within one year from the date of export invoice, is not hit by limitation - the Adjudicating Authority is directed to decide the refund claim in terms of Section 11B of the CEA, 1944 - appeal allowed by way of remand.
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2017 (4) TMI 158 - CESTAT NEW DELHI
Business Auxiliary Service - the beneficiaries of the services are in India and the services have not been provided to the recipient outside India and further, no portion of the service has been performed outside India - whether or not the services have been ‘used’ outside India?
Held that: - the issue is no longer res-integra and it has been settled in several decisions of the Tribunal in the case of Target Sourcing Service India Pvt. Limited Versus Commissioner of Central Excise & S.T. Delhi-II [2017 (3) TMI 21 - CESTAT NEW DELHI], where the decision in the case of Gap International Sourcing (India) Pvt. Limited vs. CST, Delhi [2014 (3) TMI 696 - CESTAT NEW DELHI], followed as the issue was similar where the the Tribunal has gone on to decide that the services rendered to principal in USA, who had paid for the services in foreign exchange, has to be considered as export of service - appeal allowed - decided in favor of appellant.
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2017 (4) TMI 157 - CESTAT ALLAHABAD
Valuation - Works contract - utilisation of materials in the repair and maintenance and have paid Sales Tax on the material portion - whether the Commissioner (Appeals) have rightly allowed the appeal of the respondent-assessee and set aside the demand of Service Tax ₹ 22,31,227/- along with interest and further equal amount of penalty u/s 78 and also penalty u/s 76 and 77?
Held that: - there is no error in the order & findings of the Commissioner (Appeals). In his findings, it is stated that it is a matter of composite contract wherein the appellant have supplied materials in the repair of Transformers.The appellant have suo-moto paid service tax on the labour component, have paid Excise duty on the manufacture of LV/HV coils, and further have paid Sales Tax on the material component used in the repair of the Transformers. In this view of the matter, the SCN is not tenable - appeal dismissed - decided against Revenue.
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2017 (4) TMI 153 - CESTAT NEW DELHI
Extended period of limitation - non-payment of service tax - Held that: - The material facts, of the nature of service rendered by the appellant, the tax liability on such services were all in the knowledge of the Department. Timely follow up was not done for subsequent periods and that cannot be the basis for issuing another demand invoking suppression of fact etc - extended period not invoked.
Imposition of penalties u/s 77 - Held that: - the SCN never proposed imposition of penalty under various sub-section/sub-clauses of Section 77 and the Original Authority traveled beyond the scope of SCN in imposing various penalties under the said section - penalties set aside.
Appeal dismissed - decided against Revenue.
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2017 (4) TMI 152 - CESTAT NEW DELHI
CENVAT credit - works contract - value of the transfer of property in goods - composition scheme - Held that: - Under the CENVAT scheme, the CENVAT credit is passed on by using the invoice documents, which are to be transferred to the buyer of the goods only. Here buyer of the goods is the contractor and not the Appellant M/s Bharat Oman Refineries Ltd. When the buyer M/s Petron Engineering Constructions Ltd., who is the contractor, cannot take CENVAT credit of their input goods, they are not eligible to pass on the CENVAT credit on the said input goods. In other words, the Cenvat credit to which the contractor themselves are not entitled to, the said cenvat credit cannot be transferred to anyone - appeal dismissed - decided against appellant.
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2017 (4) TMI 100 - CESTAT KOLKATA
Valuation - reimbursable expenses to be included in gross value or not? - Held that: - The law provides that for the purpose of calculating the service tax gross value of service has to be taken in to account. This includes the consideration received before, during or after the service. The costs of expenditure or the amount reimbursed to the clients are not allowed to be deducted or excluded except in the case of pure agent - Admittedly, appellants are no pure agents and Commissioner (Appeals) has also given finding that appellants did not claim themselves to be a pure agent nor did they produce any evidence for fulfillment of conditions necessary for being a pure agent - Section 67 is clear and unambiguous that all the expenses incurred in relation to rendition of service have to be included in the gross taxable value.
The extended period has been correctly imposed as the law was clear and unambiguous. Non-inclusion of part of taxable value in such a situation is a positive act of suppression and misdeclaration of value in their ST-3 returns - penalty also rightly imposed.
Appeal dismissed - decided against assessee.
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2017 (4) TMI 99 - CESTAT KOLKATA
Works contract - assessee claimed exemption from payment of service tax, the items of contract/works being excluded from the purview of the definition of the said service u/s 65 (25b) of FA, 1994 - Department was of the view that the work in question should be considered as part of construction of Hydro Electric Power Project, which is a Commercial Project leviable to service tax - Held that: - the contract with WBSEB was a Works Contract as defined u/s 65(105)(zzzza) of the FA, 1994 and came into force from 1st June, 2007, without any change in the definition of Commercial or Industrial Construction Service [Section 65 (105)(zzq)] or Erection, Commissioning or Installation service [Section 65(105)(zzd)] or Construction of Complex Service [Section 65(105)(zzh)]. It implies that the work undertaken by the respondent was not covered under any of the earlier existing services and came under service tax levy as Works Contract only w.e.f. 1st June, 2007 - Only minor part of the demand from June, 2007 to March, 2008, which is included in the demand of ₹ 4,39,181/- for the period April, 2007 to March, 2008 survives and the balance of the demand does not exist.
The appeal filed by the Department is not maintainable under Litigation Policy - appeal dismissed - decided against Revenue.
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2017 (4) TMI 98 - CESTAT NEW DELHI
Refund claim - CENVAT credit - N/N. 5/2006-CE(NT) dated 14.03.2006 - time limitation - Held that: - the relevant date for computing the time limit of one year u/s 11B of CEA, 1994, in case of export of services, would be the date when the consideration for such services is received by an assessee exporter. In this regard, there is CBEC's N/N. 14/2016-CE(NT) dated 1.3.2016, where it clarifies that “in case of service provider, the refund application is to be filed before the expiry of one year from the date of (a) receipt of payment inconvertible foreign exchange, where provision of services had been completed prior to receipt of such payment; or (b) issue of invoice, where payment for the service had been received in advance prior to the date of issue of the invoice.”
The appellant is entitled to refund claims, wherever they have filed the claim within the period of one year from the date of receipt of consideration in convertible foreign exchange. The fact that whether the appellant filed the refund claims within the period of one year from the date of receipt of consideration is to be examined by the original adjudicating authority - appeal allowed by way of refund.
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2017 (4) TMI 97 - CESTAT NEW DELHI
Liability of tax - commercial training or coaching service - denial of exemption N/N. 24/2004-ST available to vocational training institute - denial on the ground that no skill is being imparted by the appellant. It was held that the appellants are only engaged in coaching in English language and as such, they are not a vocational training Institute imparting coaching, which will enable the participants directly to gain employment.
Held that: - similar issues came up for decision before the Tribunal. In the case of Maria Computer Systems Pvt. Ltd. vs. CCE, Bhopal [2017 (1) TMI 37 - CESTAT NEW DELHI] the Tribunal held that the term Vocational Training Institute has been defined as one which provides vocational training, which will enable the trainee to seek employment or undertake self-employment directly after such training or coaching. It is common knowledge that acquiring skills in English language definitely improves better chance to seek employment.
The appellants will be eligible for exemption under N/N. 9/2003, 24/2004 except for the period 01.07.2004 to 09/09/2004 during which no exemption Notification was available. Regarding English language skills imparted to children, we note that the said Notification itself provides for recreational training institute, defining the same as commercial training or coaching centre which provides training or coaching relating to recreational activities such as, dance, singing, martial arts or hobbies.
The appellants are not liable to service tax, except for the period 01.07.2004 to 09.09.2004. The tax liability for the said period shall be calculated after extending the benefit of N/N. 12/2003-ST upon verification of the documents - appeal allowed by way of remand.
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2017 (4) TMI 96 - CESTAT NEW DELHI
Refund claim - unutilised CENVAT credit - N/N. 5/2006-CE (NT) dated 14/03/2006 - rejection on the ground that the appellants provided “market research agency service” in terms of Section 65 (105) (y) and not BAS, as claimed by them - further, rejection also on the ground that the services are rendered in India and they cannot be considered as exported in terms of Export of Services Rules, 2005 - Held that: - the work carried out by the appellant will fall under the category of market research agency. The claim of the appellant that they are engaged in procuring services for the foreign client and, as such, should be considered as rendering BAS is not factually or legally sustainable. The appellants are only collecting data by questionnaire and study. Collection of such data from various target persons cannot be considered as procurement of services which are inputs for the clients - classification of the service under "market research agency" is correct - refund rightly rejected.
On the second issue regarding the claim of export of service by the appellant, we note that the data collected by the appellants are delivered to the clients outside India in the required format. Without such delivery of the collected data the service will not get completed - In the present case, we are dealing with market research agency service. The same ratio is applicable. The data collected from target groups are to be arranged and delivered in a manner as required by the foreign client. Without such delivery of the collected data there is no completion of service. Hence, that part of the service is performed outside India. In such situation, the proviso clause of Rule 3 (1) of the Export of Services Rules, 2005 will apply. The said proviso stipulates that where such taxable service is partly performed outside India, it will be treated as performed outside India - The claim shall be considered, upon verification of supporting documents and fulfillment of other conditions, as mentioned in the notification issued under the said rule - matter on remand.
Appeal rejected in part and part matter on remand.
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2017 (4) TMI 42 - CESTAT KOLKATA
Taxability - The respondent-assessee was providing water supply to M/s Gujarat Water Supply and Sewerage Board under Sujlam Suflam Yojna of the Government of Gujarat - whether the said service taxable as commercial and construction services or not? - Held that: - the respondent is not selling water to anybody. Needless to mention that water supply projects are essential for the human beings and animals welfare for their consumption. The respondent was executing the project of the Government of Gujarat for providing water to the human beings as well as animals. No commercial activity is involved in the instant case as the water was not sold to anybody - identical issue decided in the case of Nagarjuna Construction Co. Ltd. Vs. Commr. of Central Excise, Hyderabad [2010 (5) TMI 232 - CESTAT, BANGALORE], where it was held that production of drinking water to the community in Gram Panchayats and Nagar Panchayats in the State on recovery of user charges at a highly subsidized rate, we find, does not come within the expression 'industry' used in the definition of the taxable entry in question - appeal dismissed - decided against Revenue.
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2017 (4) TMI 41 - CESTAT KOLKATA
Levy of service tax - appellant engaged private buses to ply under the banner of M/s ASTC on bus routes reserved for M/s ASTC only. The private buses which were under the names, banners and colours of M/s ASTC, as per agreement. It is claimed that 90% collection will have to go to the operators of the private buses and remaining 10% will have to go M/s ASTC for providing bus stoppage, banners facilities etc. Staff and bus were to be provided the private bus owners - Held that: - the entire revenue collected by the private operators, will have to be deposited to M/s ASTC, after that, M/s ASTC made the payment to the consignor operator of 90% of the revenue collected. From the impugned order, it appears that the private bus operators paid 10% to M/s ASTC and retained 90%. This is the conflicting position between the situations, which needs proper clarification - matter remanded back to the adjudicating authority to decide the issue in denovo - appeal allowed by of remand.
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2017 (4) TMI 40 - RAJASTHAN HIGH COURT
Default clause - maintainability of appeal - Whether the CESTST under its order dated 17.07.2015, is justified by dismissing the appeal in light of default clause under order dated 19.11.2014? - Held that: - Though the appellant is under obligation to adhere with the condition precedent, but in the instant matter, it appears that there was some dispute with regard to inclusion of interest with the amount that was to be deposited, therefore, some delay occurred in the matter - matter to be reheard in the interest of justice - appeal allowed by way of remand.
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