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Service Tax - Case Laws

Showing 21 to 40 of 31533 Records

• 2025 (7) TMI 148
  

  Classification of services - Manpower Recruitment and Supply Agency Services or not - place of provision rules - reverse charge mechanism - extended period of limitation.

  Whether Daimler AG is providing Manpower Recruitment and Supply Agency Services to the Appellant under Section 65(105)K of the Finance Act, 1994 prior to 01-07-2012 and is providing taxable services under Section 65B(44) of the Finance Act, 1994 post 01-07-2012 and consequently the Appellant is liable to pay service tax under Section 66A of the Act ibid read with applicable provisions of Service Tax Rules and Place of Provision Rules? - HELD THAT:- The issue whether the overseas group company or companies, with whom the assessee has entered into agreements, provide it manpower services, for the discharge of its functions through seconded employees has come up for analysis by the Honourable Supreme Court in its decision in C.C, CE & S.T., Bangalore (Adjudication) v. Northern Operating Systems Pvt Ltd, [2022 (5) TMI 967 - SUPREME COURT], wherein the Apex Court has after noticing the relevant provisions of the Finance Act, 1994 with amendments as they were prior to 01-07-2012 and post the amendments in 2012, with effect from 01-07-2012, upon extensive deliberations, concluded, for the reasons given therein that the respondent therein, i.e., the assessee, was the service recipient of manpower recruitment and supply services provided by the overseas entity, in regard to the employees it seconded to the assessee, for the duration of their deputation or secondment.

  In the instant case, the Appellant has contended that the aforesaid decision of the Apex Court would not apply to the facts and circumstances of the appellant’s case, whereas the Revenue has contended that the appellant’s case would be covered by the ratio of the decision of the Apex Court in Northern Operating Systems (NOS Judgement) and thus the demand is sustainable.

  As regards the contention that “in Northern Operating Systems, the foreign Company had created a pool of employees who are deployed to various affiliate companies to perform tasks in relation to business of the foreign group entity, and that there is no such pool of employees created in the present case and employees are engaged in relation to business of the Appellant and not the foreign Company”, again the same remains an averment sans any evidence given the absence of the going global policy or the global mobility policies as well as the detailed appointment letter of the employee. In any event, in our view, irrespective of whether a pool is created or not, the fact remains that it is the Home Company, who upon receiving the specification of the employee desired by the Appellant, determines the transferee who is to be made available by indicating the current salary and family status of the transferee. Thus, this distinction sought to be pointed out is rather rendered immaterial as the factum remains that who would be the transferees who are offered to be supplied, are only chosen as decided by the Home Company.

  When the entitlement to availment of credit or entitlement to refund etc., would arise only subsequent to the discharge of such revenue liability in the first instance; such availment of cenvat credit or entitlement to refund also being subjected to further checks and balances in terms of the statutory requirements that has to be fulfilled to qualify for the same, the Honourable Apex Court, has decided not to entertain the plea of revenue neutrality when holding that the liability has to be necessarily discharged. The appellant has also placed reliance on a number of decisions to contend that the entitlement to cenvat credit results in a revenue neutral situation and thus the demand need not be sustained. The crucial distinction that we note is that in all these decisions, the fact situation was not pertaining to the liability that arises consequent to the levy attracted under Section 66A of the Finance Act, 1994 for import of service. To countenance the plea of the appellant would be to render the discharge of liability consequent to levy under Section 66A, completely otiose, as no person who is liable thus need to pay service tax on service received from abroad for the reason that the tax so paid will be available as credit to them.

  The Appellant was the service recipient for service (of manpower recruitment and supply services) by the overseas entity, in regard to the transferees/employees it seconded to the appellant, for the duration of their deputation or secondment. Therefore, Daimler AG is providing Manpower Recruitment and Supply Agency Services to the Appellant under Section 65(105)K of the Finance Act, 1994 prior to 01-07-2012 and is providing taxable services under Section 65B(44) of the Finance Act, 1994 post 01-07-2012, and consequently the Appellant is liable to pay service tax under Section 66A of the Act ibid read with applicable provisions of Service Tax Rules and Place of Provision Rules.

  Whether extended period of limitation can be invoked in the facts and circumstances of the case? - HELD THAT:- There are no existence of “wilful suppression” of facts, or deliberate misstatement in these instances. For these reasons, the Revenue was not justified in invoking the extended period of limitation to fasten liability on the appellant.

  Therefore, respectfully following the said Judgement of the Honourable Supreme Court in the case of Northern Operating Systems, the impugned common Orders-in-Original upheld, except to the extent it seeks to recover amounts for the extended period of limitation and imposes penalties. The penalties imposed are set aside. The demands now stand modified excluding any liability for the extended period of limitation and the demands are confined only to the normal period, along with applicable interest thereon.

  Appeal disposed off.

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• 2025 (7) TMI 147
  

  CENVAT Credit of Central Excise duty paid on the towers and shelters, which were procured in completely knockdown (CKD) condition - capital goods - HELD THAT:- The issue whether, the goods in question i.e., towers and shelters should be considered as ‘capital goods’, as per the definition provided in the CENVAT statue, it is found that the same is no more res integra, in view of the judgment of Hon’ble Supreme Court, delivered in the case of Bharti Airtel Ltd. Vs Commissioner of Central Excise, Pune [2024 (11) TMI 1042 - SUPREME COURT] that 'We, therefore, agree with the conclusion arrived at by the Delhi High Court that towers and shelters (PFBs) support the BTS/antenna for effective transmission of mobile signals and thus enhance their efficiency and since these articles are components/accessories of BTS/antenna which are admittedly "capital goods" falling under Chapter 85 within sub-clause (i) of Rule 2(a) (A) of CENVAT Rules, these items consequently are covered by the definition of "capital goods" within the meaning of sub-clause (iii) read with sub-clause (i) of Rule 2(a)(A) of CENVAT Rules. Further, since these are used for providing output service, i.e., mobile telecommunication service, and since these are "capital goods" received in the premises of the provider of output service as contemplated under Rule 3(1)(i), the Assessees would be entitled to CENVAT credit on the excise duties paid on these goods.'

  The adjudged demands confirmed by the original authority cannot be sustained. Therefore, the impugned orders passed by the learned adjudicating authority are set aside - Appeal allowed in favour of the appellants.

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• 2025 (7) TMI 146
  

  Refund claims as per N/N. 05/2006-CE dated 14.03.2006 - Export of Service - period from January 2007 to December 2007 - HELD THAT:- The learned Commissioner (A) after analyzing various services in the context of exports made by the respondents, remanded the matter on the ground that the claims have to be verified in the light of the Chartered Accountant certificate issued by the Board vide Circular dated 19.01.2010 and observing that all the issues be decided in the light of the Circular except for certain input services viz., Annual Day Celebration, Conference and Event Management Service, Employees background verification, Radio Programming, Induction Training Charges, Electronic articles, Pest control service, job portal access charges and company law and Secretarial practice service, etc.

  There are no discrepancy in the observation of the learned Commissioner (A) in remanding the matter to the adjudicating authority to ascertain the facts without which refund cannot be decided.

  This Tribunal in the case of CCE vs. M/s. Tantia Industries Ltd. [2024 (5) TMI 1588 - CESTAT BANGALORE] following the earlier decision of this Tribunal rendered in the case of CCE, Meerut-II vs. HAS Chadha Exports [2012 (7) TMI 168 - CESTAT, NEW DELHI], wherein it has observed that the Commissioner (Appeals) did not exceed his jurisdiction by remanding the issue of undervaluation to the adjudicating authority.

  The impugned order is upheld and the Revenue’s appeals are dismissed.

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• 2025 (7) TMI 79
  

  Classification of services - Supply of Tangible Goods Services - effective control of the supplied equipment was with the respondent as mentioned in the agreement executed between the respondent and their customers - effective control of the equipment is with the service recipient or not - transfer of right to use of the equipment by the respondent to its customer on rental basis for limited purpose comes within the purview of supply of tangible goods for use or not - payment of VAT on rentals of the equipment is a deemed sale or not - Extended period of limitation - interest - penalty.

  HELD THAT:- Admittedly, the computers, printers, servers, computer peripherals and other equipments are hired by the assessee to their clients and they are installed in the premises of their clients and the equipments are also customized to suit the requirement of their clients. Pursuant to the agreement between the parties, the transferee namely, clients of the assessee, have a legal right to use the good. What is prevented under the agreement is only shifting of the equipment from the location where it is installed to any other location, that too, with the prior permission of the assessee. Therefore, this condition cannot be construed to mean that the clients of the assessee do not have a legal right to use the goods.

  It cannot be disputed by the Department that after the assessee has entered into an agreement with its client namely, transferee, during the period when the agreement is in force, the assessee, namely, the transferor, has no right to transfer very same goods in favour of their client. Therefore, the transfer of such legal right in favour of the clients/transferee to the exclusion of the right of the assessee, the transferor to transfer such right in favour of the third party during the subsistence of the agreement.

  The terms of the agreement makes it clear that the transferor namely, the assessee, cannot transfer the equipment to third parties during the period when the agreement is in force. In fact, the Department has not disputed this position and not made any allegation in the show-cause notice in this regard.

  Extended period of limitation - interest - penalty - HELD THAT:- The Hon’ble Supreme Court while dealing with such issue has pointed out that the concept of suppression amounts to that which one is legal to state but one intentionally or deliberately or consciously does not state. In other words, the terms were mainly to deliberately omit to state certain things and it was held that the extended period of limitation is inapplicable in the absence of suppression of facts and hence absence of an intent to evade payment of duty. In Uniworth Textiles Ltd. Vs. Commissioner of Central Excise, Raipur, [2013 (1) TMI 616 - SUPREME COURT], it was held that every non-payment/non-levy of duty does not attract extended period. There must be deliberate default. The conclusion that mere non-payment of duty is not equal to collusion or willful misstatement or suppression of facts is untenable. Furthermore, it was held that the act contemplated a positive action which buttresses the negative intention of willful default - The burden to justify invocation of the extended period lies with the Department and the assessee cannot be asked to provide his bona fide when prima facie acted in a bona fide manner.

  The assessee has time and again contended that they have a service tax registration in respect of the contracts which they enter into with their clients for providing annual maintenance etc. in relation to the hiring of the equipments to the clients. It is not disputed that the assessee has been filing their service tax returns promptly and the entire service tax liability has been paid. Therefore, the Department was aware of the nature of the transaction done by the assessee and it can hardly be stated that there was willful suppression of facts done by the assessee with the intention to evade payment of duty. Therefore, the Department could not have invoked the extended period of limitation. Thus, having decided both the issues in favour of the assessee, the question of levy of penalty or interest could not arise.

  The learned Tribunal was justified in allowing the assessee’s appeal and setting aside the order of adjudication - the substantial questions of law as suggested are answered against the revenue - Appeal dismissed.

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• 2025 (7) TMI 78
  

  Payment of interest on delayed refund of service tax - relevant date for calculation of interest - interest shall be payable from the date of expiry of three months from the date of Tribunal’s order or otherwise? - Section 11BB of Central Excise Act, 1944 - HELD THAT:- The learned Commissioner (Appeals) has erred in passing the impugned order by following the judgment of Larger Bench in the case of Indian Thermoplastics Limited vs. Commissioner of Customs, Kolkata [2003 (12) TMI 84 - CESTAT, NEW DELHI] and the decision in case of Coronation Spinning India vs. Commissioner of Customs, Kolkata [2004 (6) TMI 59 - CESTAT, NEW DELHI (LB)]. When there is a judgment of Hon'ble Supreme Court in this field delivered in the case of Ranbaxy Laboratories Limited vs. Union of India [2011 (10) TMI 16 - SUPREME COURT], the Commissioner should have followed the ruling in Ranbaxy case and not the orders passed by Tribunal in the case Indian Thermoplastics Limited vs. Commissioner of Customs, Kolkata and in case of Coronation Spinning India vs. Commissioner of Customs, Kolkata because the order of Larger Bench is against the ratio decidendi of Ranbaxy case Under article 141 of the India Constitution, the law declared by Hon'ble Supreme Court of India is the law of land and it is in force and applicable throughout the territory of India and it cannot be ignored on the pretext that the Larger Bench of the Tribunal has given the ruling otherwise.

  In Ranbaxy case, the Hon'ble Supreme Court has clearly held that it is manifest from the afore extracted provisions that Section 11BB of the Act comes into play only after an order for refund has been made under Section 11B of the Act. Section 11BB of the Act lays down that in case any duty paid is found refundable and if the duty is not refunded within a period of three months from the date of receipt of the application to be submitted under sub-section (1) of Section 11B of the Act, then the applicant shall be paid interest at such rate, as may be fixed by the Central Government, on expiry of a period of three months from the date of receipt of the application - Manifestly, interest under Section 11BB of the Act becomes payable, if on an expiry of a period of three months from the date of receipt of the application for refund, the amount claimed is still not refunded. Thus, the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under Sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable.

  The order passed by the Adjudicating Authority and the Commissioner (Appeals) is not sustainable and are liable to be set-aside - case is remanded back to the first Adjudicating Authority with direction to decide the refund application of the appellant - Appeal allowed by way of remand.

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• 2025 (7) TMI 77
  

  Exemption from service tax - construction at residence of District judge - applicability of Sl.No.14(b) of N/N. 25/2012-ST dated 20.6.2012 -construction at Eklavya Sports Stadium where modification, renovation was done as per work order of PWD department of UP Government - Penalty u/s 78 of FA.

  Exemption from service tax - construction at residence of District judge - applicability of Sl.No.14(b) of N/N. 25/2012-ST dated 20.6.2012 - HELD THAT:- It is found from the records that Show Cause Notice has been issued on information for the F/Y 2016-17 received from income tax department/26AS under third party data exchange. Since, the Appellant has not taken ST Registration and S T - 3 returns were not filed, the Show Cause Notice has been issued on the basis of ITR/26AS.

  The work order shows that there are different works of construction, providing fixing new tiles on floor and also fixing new items etc, thus there is force in Appellant’s argument that construction work at the residence of District Judge falls under definition of ‘original work’ under Rule 2(A) of Service Tax (Determination of Value) Rules, 2006 which means all new constructions, all types of additions & alterations to abandoned or damaged structure on land that are required to make them workable - The work at residence of District judge would be covered by clause (b) of Sl.No.14 of Notification No.25/2012-ST dated 20.6.2012, therefore, exempt from service tax.

  Exemption from service tax - Construction at Eklavya Sports Stadium where modification, renovation was done as per work order of PWD department of UP Government - HELD THAT:- The work order of Eklavya Sports Stadium is gone through, where dismantling work was there and installation of new items i.e. G.S. Sheet roofing, laying of badminton flooring, supply & fixing of PVC pipe and RCC work with cement has been done which falls under definition for ‘original work’ under Rule 2(A) of Service Tax (Determination of Value) Rules 2006 which means all new constructions, all type of additions & alterations to abandoned or damaged structure on land that are required to make them workable. The Adjudicating Authority is directed to re-quantify the demand of service tax by taking construction work at Eklavya Sports Stadium under original work and demand of tax has to be worked-out on 40% of value and also by giving benefit of cum-tax value. The demand of service tax Rs.5217/- on construction of Boundary wall at Divisional warehouse has been correctly worked-out.

  Penalty u/s 78 of FA - HELD THAT:- In the matter at hand, construction work was done for government and no service tax was mentioned in work orders, therefore the Appellant’s argument on bonafide belief is accepted. The penalty imposed under Section 78 is, therefore, set-aside.

  Appeal allowed in part.

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• 2025 (7) TMI 76
  

  Refund of service tax - rejection on the ground of unjust enrichment - time limitation - HELD THAT:- It is found from the records that SCN dated 20.4.2021 has been issued on audit objection invoking extended period wherein the objection is that the Appellant has provided the taxable services to MES Roorkee, Garrison Sarsawa, Garrison Dehradun, MES Roorkee & Garrison MES and vide Notification No.6/2015-ST dated 1.3.2015, the entry 12, items (a), (c) and (f) of the Notification No.25/2012-ST dated 20.6.2012 has been omitted, therefore service provided by Appellant to the Government are liable to service tax.

  There are force in the arguments of the learned Counsel that since they have taken service tax registration in June 2015, deposited service tax and filed ST-3 returns, therefore Appellant’s activity was in the knowledge of the Department. Further, the Appellant has also filed refund claim of service tax on 9.11.2016 and submitted documents viz. ST-3 return, contract/agreement with the Defence (Air-force/Army) and the claim was rejected vide Order dated 22.5.2017 on the ground of unjust enrichment, this shows that all the information of Appellant’s activity of work contract service provided to Government was in the knowledge of the service tax department and in such a situation, Show Cause Notice issued on 20.4.2021 invoking extended period is barred by limitation.

  The appeal filed by the Appellant succeeds on limitation - Appeal allowed.

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• 2025 (7) TMI 75
  

  Levy of service tax - goods transportation agency services - transportation of goods by way of hiring, leasing, licencing etc. without transfer of right to use such goods - period from April, 2013 to March, 2017 - reverse charge mechanism - HELD THAT:- The nature of service can easily be identified from the terms of agreement executed between the Appellant and its customer M/s. INOXAP. Invariably throughout the agreement, reference is made to provisions for transportation of goods on payment with different conditions but nowhere there is any reference to any fixed collection of lease-rental by the Appellant from its customer M/s INOXAP.

  Payment is made purely on the basis of bill of transportation submitted in prescribed format for the whole month and not for leasing or renting of specialised Lorry Chassis by the Appellant with customer M/s. INOXAP, for which we find the decisions passed in the case of M/s. Pranish Carriers LLP cited supra are squarely applicable to the case of Appellant. Further, invoice and Consignment note being two separate kinds of documents, there is no requirement that full description including address, lorry numbers etc. should be available in the invoice, when content of Consignment note is itself referred in the statute.

  The impugned order is set aside - appeal allowed.

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• 2025 (7) TMI 74
  

  Levy of service tax - Business Auxiliary Service or not - other expenses including salary to trainers from foreign companies incurred in foreign currency being in the nature of expenditure incurred for services received in India - reverse charge mechanism - onus to prove - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- The Impugned Order has confirmed the demand on "other expenses" without proving that such amounts will qualify as consideration paid for receipt of any service and that there is a service provider and service recipient relationship. In fact, the SCN and impugned order have failed to identify the specific service provider in the instant case. It is a well settled position of law that onus to prove taxability is on the Department.

  The Appellant has placed reliance in this regard on LSE Securities vs. CCE, Ludhiana [2012 (6) TMI 364 - CESTAT, NEW DELHI] involving a dispute over whether "turnover charges" collected by stockbrokers from clients should be included in the taxable value for service tax purposes. The Tribunal, ruled that these charges, which are essentially amounts paid to the stock exchange, are not part of the taxable service provided by the stockbroker and therefore should not be included in the assessable value for service tax. which is rightly applicable in this case as all the other charges are in the nature of Expenses.

  It is seen from the impugned order and the SCN’s that the department itself was unsure of the nature of service as to the exact classification under the sub-clause was not done. Therefore, when the nature of service was not ascertainable by the Department while raising demand, the demand raised could not sustain.

  Extended period of limitation - HELD THAT:- The Appellant has duly recorded all the transactions in its books of accounts. The Appellant has maintained all the books of accounts as per the provisions of law and regularly filed its ST-3 returns. Therefore, no suppression of facts can be held on the part of the Appellant when other expenditure incurred has been culled out from their records - further it is found that there was no positive act on the part of the Appellant to suppress any information from the Respondent with an intent to evade payment of service tax. Therefore, we are of the view that extended period of limitation cannot be invoked in the present case - in the impugned SCN/Impugned Order that, the Department has neither put forth any averment nor has produced any documentary evidence for establishing the suppression and mala fide intent on part of the Appellant. Therefore, the question of invocation of extended period of limitation is not justified. Thus, the Appellant succeeds on merits and also on limitation.

  The impugned order is set aside - appeal allowed.

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• 2025 (7) TMI 73
  

  Non-payment of service tax - Classification of service - Works Contract Services or Erection and Commissioning service - suppression of facts or not - Extended period of limitation - HELD THAT:- A perusal of the facts of the case is that the appellant had provided Erection, Commissioning or Installation Service as well as Works Contract Service to M/s Jodhpur Development Authority and Nagar Nigam, Jodhpur and other authorities but they did not pay the applicable service tax on such services nor had taken registration under service tax. It is found that the impugned order itself has noted that the appellant had provided Works Contract Services.

  The Hon’ble Supreme Court in the case of Larsen & Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT] held that the Section 65(105) of the Finance Act, 1994 refers only to service contracts simpliciter and not to composite works contracts - It defines "taxable service" as "any service provided", and all its sub-clauses refer to service contracts simpliciter without any other element in them. In the instant case, the impugned order has noted that all works done by the appellant in 2005-06 to 2008-09 involved both goods and services, hence services rendered during 01.04.2005 to 31.05.2007 also involved goods, therefore, the demand confirmed for this period is liable to be set- aside.

  Extended period of limitation - HELD THAT:- There was substantial litigation on the issue relating to taxability of works contract services and divergent views had been taken in this regard. In such a situation, allegation of fraud, suppression on the appellant is not tenable. The non-payment of service tax was due to the prevalent confusion regarding the nature of such services which involved transfer of goods as well - the demand for the extended period cannot be upheld.

  The demand for the normal period is only upheld with the benefit of cum tax extended to the appellant. In view of the circumstances, the penalties imposed on the appellant set aside.

  Appeal allowed.

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• 2025 (7) TMI 72
  

  Principle of ejusdem generis - Invocation of extended period of limitation under Section 73(1) of the Finance Act, 1994 - suppression of facts or not - demand of service tax on additional license fees/spectrum charges for the period FY 2016-17 to FY 2017-18 (up to June 2017) - Whether the license fee/spectrum charges of Rs. 222.1 crores pertain to period FY 2008-09 to 2013-14 and not for FY 2016-17? - Point of taxation rule.

  Demand of service tax on additional license fees/spectrum charges for the period FY 2016-17 to FY 2017-18 (up to June 2017) - HELD THAT:- The service tax audit of the appellant for the period 2013-14 to 2017-18 (up to June 2017) was duly completed and no demand for additional fee was raised against the appellant.

  It is also found that the appellant have been regularly filing the ST-3 returns and have not suppressed any material facts from the department. Further, the appellant have been supplying all the information which was sought by the department. In the service tax audit proceedings, all the relevant documents, information and nature of activity undertaken were duly provided and explained by the appellant and no demand was raised in the Final Audit Report dated 28.05.2019. Further, the appellant have discharged the amounts of service tax alongwith cess for the period 2016-17 and 2017-18 for the services availed by them from the Government on reverse charge basis, which is duly recorded in the impugned order.

  The entire demand in this case is barred by limitation; accordingly, this issue is decided in favour of the appellant.

  Whether the license fee/spectrum charges of Rs. 222.1 crores pertain to period FY 2008-09 to 2013-14 and not for FY 2016-17? - HELD THAT:- The amount of Rs. 222.1 crores pertains to the dues of AGR self-assessed by the appellant in consequence to the judgment of Hon’ble Supreme Court in the case of Association of Unified Service Providers of India & Others [2019 (11) TMI 168 - SUPREME COURT] - the demand of service tax on addition license fee/spectrum charges in the present case pertains to the period FY 2008-09 to 2013-14 which is also clear from the CA Certificate and during that period, service tax was not leviable on the license fee/spectrum charges and the same become chargeable to service tax w.e.f. 01.04.2016. Accordingly, this issue is also decided in favour of the appellant.

  Point of taxation rule - HELD THAT:- Rule 7 of the Point of Taxation Rules, 2011, which determines the point of taxation in case of specified services or persons, was amended by Notification No. 24/2016-ST dated 13th April 2016 and inserted a proviso providing as to where services are provided by the Government to a business entity, the point of taxation arises when the payment becomes due as specified in the invoice, bill, challan, or any other documents issued by the Government demanding such payment; whereas in this case, no invoice, bill, challan or any other document has been issued by the Government demanding additional license fee from the appellant - in the instant case, the department could not establish that the consideration, for the services rendered, if any, has been paid by the appellant or is payable by them subsequently to the Government as evident from the affidavit.

  The appellant are not liable to pay service tax on additional license fee as demanded by the Revenue. Therefore, this issue is also decided in favour of the appellant.

  Conclusion - i) The demand is barred by limitation as the extended period was wrongly invoked. ii) The additional license fee pertains to the period FY 2008-09 to FY 2013-14, on which service tax was not leviable, and not to FY 2016-17. iii) The point of taxation had not arisen for the additional license fee, and hence no service tax liability arose.

  The impugned order is set aside - appeal allowed.

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• 2025 (7) TMI 71
  

  Levy of service tax - delivery charges collected by the appellant - period from April 2007 to March 2012 - Cargo Handling Agency service - Extended period of limitation.

  Levy of service tax - delivery charges collected by the appellant - period from April 2007 to March 2012 - HELD THAT:- In a transaction of sale of goods, where the cost of transportation for delivery of the goods to the customer formed part of the sale price attracting central sales tax/VAT, the said transaction cannot be subjected to levy of service tax, by treating any part of the sale price as consideration for rendering any service. It is a settled position of law that the levy of service tax and sales tax/VAT are mutually exclusive. Thus, the submission of the appellant that no service tax was payable on the 'delivery charges' collected by the appellant as VAT was paid on the said 'delivery charges' agreed upon.

  In the instant case, it is found that the delivery of the liquid gas at the customers’ premises was in terms of the contracts for sale which stipulated such delivery of the goods to the customer's premises. Thus, the delivery of liquid gas to the customers was integral to the contracts for sale and collection and delivery charges, though separately mentioned in the invoices, formed part of the consideration for sale of the goods and formed part of the sale price for the purpose of payment of sales tax/VAT, which the appellant duly discharged.

  It is also observed that that the agreements entered into by the appellant with their customers with regard to liquid gas stipulated that the appellant shall supply the goods into the storage tank installed at the customers’ premises and the quantity delivered shall be measured and recorded on the delivery note. It is not in dispute that the central excise invoices were issued after the liquid gas was delivered at the customers’ premises for the quantity actually delivered - the goods under transportation remained the appellant’s property and there was no transfer of property in the goods to the customers till such time as the same were delivered to the customers in their storage tank. Therefore, the transfer of property to the customers was indeed only in respect of the quantity delivered as per measurement recorded at their premises.

  Cargo Handling Agency service - HELD THAT:- The appellant were not a 'Cargo Handling Agency' and did not render any cargo handling service. Section 65(105)(zr) provides for taxation of service provided by a cargo handling agency in relation cargo handling services, which has been defined in section 65(23). The appellant have stressed that they are a manufacturer of gases and not a cargo handling agency. It is clear that the manufactured gas when despatched from the appellant’s factory for delivery and sale to its customers is not “freight” or “cargo” in the hands of a “cargo handling agency”. Thus, the role of the appellant is only that of a manufacturer, delivering and selling its goods to its customers for the agreed sale price, in terms of the contracts for sale.

  Extended period of limitation - HELD THAT:- The invocation of the extended period of limitation is not justified. In this case, the conditions precedent for the invocation of the extended period of limitation do not exist. In the instant case, the appellant had a bona fide belief that the collection and delivery charges formed part of sale price of the gas on which it had paid sales tax/VAT and were not chargeable to service tax. It is well settled that the extended period of limitation cannot be invoked when an assessee has acted on the basis of its bona fide belief as regards the legal position. Hence, the Show Cause-Cum-Demand Notice dated October 19, 2012 is clearly barred by limitation for the period up to March, 2011.

  The demand of service tax confirmed, along with interest, in the impugned order is not sustainable. Since the demand itself is not sustainable, the question of imposing penalty does not arise.

  The impugned order is set aside - appeal allowed.

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• 2025 (7) TMI 70
  

  Classification of service - consulting engineer services or technical testing services - rendering services of Oil Well logging, which include surveying the oil well by qualified engineers, to measure technical aspects like magnetism, resistivity and radioactive emission of the formation and in generating data to infer various parameters - period of dispute involved in the present appeal is from 1997 to 2003 - mining services introduced only from 01.06.2007 - applicability of mining services during the relevant period - HELD THAT:- On reading of the SCN as well as the impugned order, it is found that the Department themselves were in doubt about the classification of the services provided by the appellants, whether the same should be classifiable under the ‘Consulting Engineer Services’ or ‘technical testing services’.

  In context with the Consulting Engineer Services, it is found that the Tribunal in the case of Halliburton Offshore Services [2014 (10) TMI 167 - CESTAT MUMBAI], by considering the nature of activities undertaken therein, which are identical to the facts in the present case, has held that such activities shall not be qualified as a taxable service under the category of Consulting Engineer Services. Similarly, the Tribunal in the case of the appellants themselves, has also held that the activities should not be categorized under the taxable entry of technical testing and the same should appropriately be qualified under the mining services. Both the above orders passed by the Tribunal were upheld by the Hon'ble Supreme Court in COMMISSIONER VERSUS HALLIBURTON OFFSHORE SERVICES INC. [2015 (7) TMI 1450 - SC ORDER (LB)].

  Since the issue in dispute about proper classification of the services is no more res integra, the impugned demands confirmed under the taxable category of Consulting Engineer Services shall not stand for judicial scrutiny.

  Conclusion - The appellants' oil well logging and related technical interpretation services for the period 1997-2003 do not qualify as 'Consulting Engineer Services' under Section 65(13) of the Finance Act, 1994. These services fall within the ambit of 'mining services' under Section 65(105)(zzzy), but since this category was introduced only from 01.06.2007, it is not applicable for the disputed period.

  The impugned order passed by the learned Commissioner of Service Tax is not sustainable under the law - Appeal allowed.

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• 2025 (7) TMI 69
  

  Levy of service tax - sale of printed vinyl/flex material - such activity is a part of provision of the taxable service - requirement to include the value of printed vinyl/flex material in the gross value towards the advertisement service - HELD THAT:- The appellants had entered into separate and distinct contracts, one for provision of services, on which service tax liability was discharged by them; and in respect of the other contract, involving sale of goods, they had also discharged the VAT liability levied under the State legislation. For ascertaining the facts, whether the printed vinyl/flex materials were sold by the appellants, the tax invoices available in the appeal records are examined. As a test check, the suppliers of flex materials M/s S.DAC Technologies Pvt. Ltd. had issued a tax invoice dated 28.10.2013 containing therein the purchase order reference placed by the appellants. In the said invoice, the supplier of flex material had claimed VAT at the requisite percentage on the value of the goods supplied by them. Further, it is also found that flex material purchased by the appellants from the said supplier was in turn, sold by the appellants to their client M/s Tata Capital Finance Services Pvt. Ltd., vide their invoice No. 540/30006 dated 05.12.2013, again by charging VAT in the said invoice issued to the said client. Thus, it is evident that supply of such printed vinyl/flex material is purely a ‘sale activity’, and since a separate contact was executed with the client for supply of the same, the value of such supplied goods therein shall not be included in the value of the service for payment of service tax thereon.

  Further, the amount received by the appellants towards sale of printed vinyl/flex material is not towards the provision of any advertising services, as they had not undertaken any activity like designing, visualizing, conceptualizing etc., of the advertisements.

  The ratio of the judgment of Hon’ble Kerala High Court in the case of Zodiac Advertisers [2008 (5) TMI 258 - KERALA HIGH COURT] relied upon by the learned AR for the Revenue is distinguishable from the facts of the present case, inasmuch as in the said decided case, the advertisement materials were sold to the customers in the form of banner/hoarding, film slide and the same were in context with the advertisement services. However, contrary is the situation, in the case in hand, inasmuch as the appellants had entered into two distinct and separate agreements with the clients, one exclusively for supply of the goods and other for provision of advertisement services. Since in the first agreement, there is no whisper about provision of any service, it cannot be said that the material supplied/sold to the client will also form part of the taxable value, for the purpose of levy of service tax thereon.

  There are no merits in the impugned order, insofar as it has upheld confirmation of the adjudged demands of Rs.2,91,62,112/- along with interest and penalty on the appellants and as such, the impugned order to such extent, is set aside - the appeal is allowed in favour of the appellants.

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• 2025 (7) TMI 68
  

  100% EOU - refund under Rule 5 of the Cenvat Credit Rule, 2004 - Output Services exported by the appellant is taxable w.e.f. 16.05.2008 - Credit availed on debit notes - prescribed document under Rule 9 (1) of the Cenvat Credit Rules, 2004 or not.

  HELD THAT:- As regarding the finding given by the First Appellate Authority related to taxability of the service, this Tribunal has considered the issue in the matter of M/s. Symphony Marketing Solutions India Pvt. Ltd., [2024 (12) TMI 1302 - CESTAT BANGALORE] and following the judgments of the Hon’ble High Court of the Karnataka in the matter of mPortal India Wireless Solutions Pvt. Ltd., [2011 (9) TMI 450 - KARNATAKA HIGH COURT] allowed the appeal.

  As regarding the validity of the debit note, the debit note submitted by the appellant and it contains essential particulars as required under Rule 9 (2) of the Cenvat Credit Rule, 2004 is gone through - This issue was considered by this Tribunal in the matter of Oracle India Private Limited [2025 (1) TMI 222 - CESTAT BANGALORE] and it is held that 'We find that the debit notes contain the essential particulars as required under Rule 9 (2) of the Cenvat Credit Rules, 2004. Further, these debit notes are accounted in the books of accounts of the appellant. Therefore, we find that the appellant has fulfilled the requirements under Rule 4A of Service Tax Rules, 1994 and Rule 4 (7) and 9 (2) of CCR, 2004. Therefore, the denial of Cenvat credit on the debit notes is unsustainable.'

  The impugned order is unsustainable - Appeal allowed.

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• 2025 (7) TMI 5
  

  Eligibility of benefit under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - inability to deposit the dues in view of the peculiar circumstances during COVID situation - seeking sufficient time to clear the outstanding dues as the petitioner was a bona fide assessee and not attempting to deflect from its responsibility and wishes to settle its liability for which it requires some more time - HELD THAT:- A perusal of the impugned order would indicate that the sole ground on which the case of the petitioner has been rejected by the respondents is that the scheme had come to an end. However, in light of the judgment of the Hon’ble Supreme Court with regard to the extension of limitation referred to herein above and the coupled with the fact that the judgments rendered by the Hon’ble High Courts of Madras, Bombay, Gujarat and Delhi, granting benefits of SVLDRS in favour of the petitioner/assessee therein on the ground of the prevailing COVID-19 pandemic, even cases where payments were made subsequent to 30.06.2020, we are of the considered view that the impugned order rejecting the case of the respondents cannot sustain and deserves to be quashed and necessary directions are required to be issued to the concerned respondents to accept the payment made by the petitioner and issue discharge certificate in its favour.

  The aforesaid conclusion is based upon the objective of the SVLDR scheme, which had been introduced by the Central Government, as a one time measure for liquidation of past disputes of central excise and service tax, the SVLDR scheme had also been issued to ensure disclosure of unpaid tax by an eligible person. This appears to have been associated as the levy of central excise and service tax had now been subsumed in a new GST Regime - on the facts of the present case, denying the benefits of SVLDR Scheme would not only contrary to object of the scheme but also would also be injustice to the petitioner declarant who otherwise was eligible.

  Whether the provisions under the Finance Bill with regard to the fixation of time limit for availing the benefit of scheme and with regard to extension of time for making payment of tax are directive in nature? - HELD THAT:- This precise question has been considered by the learned Single Judge of Madras High Court in N. Sundarajan vs. Union of India & Ors. [2023 (11) TMI 899 - MADRAS HIGH COURT], wherein the scheme was held to be directive.

  This Court is of the considered view that the petitioner deserves to be granted another chance to make the payment after associating it so as to arrive at the amount due payable.

  The Annexures P-15 and P-16 i.e. demand notices 10 SVLDRS-3 Forms issued on 28.01.2020 (forming part of Annexure P-10 (Colly), 10 SVLDRS-3 Forms issued 25.02.2020 and letter Annexure P-13 whereby the respondent department has upheld its calculation, are quashed and set aside - Petition allowed.

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• 2025 (7) TMI 4
  

  Maintainability of petition - Article 226 of the Constitution of India - availability of alternative remedy - Dismissal of appeal on the ground of time limitation - HELD THAT:- Sub-section [1] of Section 86 of the Finance Act has provided for appeals to the Appellate Tribunal. It has inter-alia provided that an assessee aggrieved by an order passed by a Commissioner of Central Excise [Appeals] under Section 85 of the Finance Act, may appeal to the Appellate Tribunal against such order within three months from the receipt of the order. The Order-in-Appeal dated 02.12.2024 has also mentioned that an appeal against the Order–in– Appeal would lie under Section 86 of the Finance Act to the Customs, Excise and Service Tax Appellate Tribunal [CESTAT] at Kolkata within three months from the date on which the order sought to be appeal against is communicated. It is, thus, clear the petitioner-assessee had the remedy of preferring a statutory appeal against the Order-in-Appeal dated 02.12.2024 under Section 86 of the Finance Act before the CESTAT. Yet, the petitioner firm-assessee has preferred the instant writ petition under Article 226 of the Constitution of India against the Order-in-Original dated 02.12.2024 before this Court.

  The issues of maintainability and entertainability of a writ petition under Article 226 of the Constitution of India, despite alternative remedy provided by the relevant statutes, have come up for discussion in M/s Godrej Sara Lee Limited [2023 (2) TMI 64 - SUPREME COURT]. It has been observed that the power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution of India. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. It has been held that though the exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition, ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal.

  It has been held that availability of an alternative remedy does not operate as an absolute bar to the maintainability of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by the statute, is a rule of policy, convenience and discretion rather than a rule of law. It has been observed that there is a fine but real distinction between the two distinct concepts, entertainability and maintainability of a writ petition and the same is not to be lost sight of. The objection as to maintainability goes to the root of the matter and if such objection is found to be of substance, the Court would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of entertainability is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. After making a survey of a number of decisions, it has been observed that when the writ petition raises a pure question of law and if investigation into facts is unnecessary, the High Court can entertain a writ petition in its discretion even though the alternative remedy is not availed of. It has been observed that where the controversy is a purely legal one and it does not involve disputed questions of fact, but only questions of law, then it should be decided by the High Court instead of dismissing the writ petition on the ground of an alternative remedy being available.

  The date, 01.04.2024 is a crucial one as it was on that day the Order-in-Original dated 21.03.2024 was communicated or received by the petitioner-assessee giving rise to the cause of action to prefer an appeal within normal period of limitation of two months and within extended period of limitation of further one month. In view of Section 9 of the General Clauses Act, the day, ‘01.04.2024’ is to be excluded while calculating the period of two months plus one month. Therefore, the period of two months plus one month has to be reckoned by excluding the date, 01.04.2024 - it is not in doubt that the date of filing of the appeal by the petitioner-assessee on 01.07.2024 is within extended period of limitation of one month beyond the normal period of limitation of two months under sub-section [3A] of Section 85 of the Finance Act. The Appellate Authority could not have held that the period of two months from 01.04.2024 expired on 31.05.2024 and the extended period of one month expired on 30.06.2024.

  The impugned order is not sustainable - petition allowed.

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• 2025 (7) TMI 3
  

  Recovery of service tax - Business Auxiliary Services (BAS) - appellants received the HR coil from the principal manufacturers for the purpose of ‘pickling and oiling’ - period of dispute involved in the present appeal is from 2007- 2008 to 2014-2015 - HELD THAT:- On reading of the definition of BAS, it transpires that in sub-clause (v) the activities of ‘production or processing of goods for the client’ is considered as a taxable service, leviable to service tax thereon. Thus, the activities carried out by the appellants as a job worker for the principal manufacturer(s) for the period from 2007-2008 to 30.06.2012, should be termed as provision of service under the category of BAS. However, in context with the sub-clause (v) in the definition of BAS, in exercise of the powers conferred under sub-section (1) of Section 93 of the Act of 1994, the Central Government has issued the Notification No. 8/2005-Service Tax dated 01.03.2005, as amended, by exempting the taxable services of production or processing of goods for, or on behalf of, the client, from the whole of service tax leviable thereon under Section 66 of the said Act. Availment of exemption provided under the said notification, is subject to the condition that the goods must be produced or processed by using raw materials or semi-finished goods supplied by the client(s); and the goods so produced or processed are returned back to the said client, for use in or in relation to manufacture of any goods, falling under the First Schedule to the Central Excise Tariff Act, 1985 (CETA), on which appropriate duty of excise is payable.

  In paragraph 30(c) in the said N/N. 25/2012-S.T., dated 20.06.2012, exemption was provided for carrying out the activities of job-work, subject to the condition that appropriate duty would be payable by the principal manufacturer, which admittedly have been complied with as certified in the certificates issued by the principal manufacturers. Therefore, in terms of the notification dated 01.03.2005, as amended, and subsequent notification dated 20.06.2012, the appellants should not be liable for payment of service tax during the entire period from April, 2007 to March, 2015, in respect of the production/ processing activities carried out by them, from the raw materials supplied by the principal manufacturers.

  Even otherwise also, in relation to the job work in dispute carried out by the appellants for the period post March, 2012 were not liable to payment of service tax, by virtue of Chapter Note 6 to Chapter 72 of the Central Excise Tariff Act, 1985 (inserted by clause 141 of the Finance Bill, 2012, effective from midnight 16.03.2012), which provides that the process of pickling and oiling undertaken in respect of the goods falling under Chapter 7208 would, by a legal fiction, be a process amounting to manufacture. As per the said deeming fiction, it is manifestly clear that the activity of job work in respect of the goods of Chapter 7208 is considered as a ‘manufacturing activity’, attracting payment of central excise duty. Since the legislative mandate is to consider the process of pickling/oiling of the goods under such chapter is manufacture, then the said activities cannot be considered as ‘service’ for the purpose of payment of service tax thereon, as that would amount to double taxation, for which there is no sanction under the law.

  There are no merits in the impugned order, wherein the adjudged demands were confirmed on the appellants. Therefore, the impugned order is set aside and the appeal is allowed.

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• 2025 (7) TMI 2
  

  Classification of services - renting of immovable property service or deemed sale - services rendered by the appellant by way of endorsement of their brewery licence along with renting of their land, building, plant, machinery and premises - HELD THAT:- The issue is squarely covered in the case of the appellant themselves for the earlier period from 2008 – 2009 to 2015-16 in M/S TRIPTI ALCOBREW PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & CGST, BHOPAL [2024 (11) TMI 615 - CESTAT NEW DELHI]. The Principal Bench considered in depth the contents of the agreement entered into by the appellant with M/s. SKOL Breweries Ltd. in the light of the various decisions and considered the issue, whether a ‘deemed sale’ under Article A 366 (29A) (d) of the Constitution had taken place under the licensed agreement and in order to examine the issue, the Bench considered whether there was ‘transfer of right’ to use goods with control and possession.

  Since the issue of the Principal Bench has been passed in the case of the appellant themselves for the earlier period, the same is squarely applicable in the present appeal concerning the subsequent period.

  The impugned order is set aside - appeal allowed.

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• 2025 (6) TMI 1971
  

  Maintainability of petition - petitioner has not invoked remedy of appeal before the appellate authority under Section 86 of the Finance Act, 1994 - time limitation - violation of Section 73 (4-B) of the Act, 1994 - HELD THAT:- Time and again Courts have held that delay and laches is required to be examined by the Writ Courts and so also in not exhausting alternative statutory remedy. In the present case, cause of action accrued to the petitioner on 31.10.2014 whereas the writ petition was filed in the month of June, 2019. Petitioner had a statutory remedy of appeal before the appellate tribunal under Section 86 of the Act, 1994 and the same has not been exhausted.

  Statutory appeal is required to be filed within the time limit stipulated. To overcome the filing of appeal, the present writ petition has been filed after about five years from the date of cause of action accrued to the petitioner.

  The writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and latches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

  For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court.

  Therefore, on the ground of laches, petitioner has not made out a case - petition dismissed.

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