|
Advanced Search Options
Service Tax - Case Laws
Showing 221 to 240 of 29325 Records
-
2024 (3) TMI 922 - CESTAT AHMEDABAD
Levy of service tax - Business Auxiliary service - services rendered by the foreign based agents to the appellant - commission towards sales promotion commission on export sales to their foreign agents situated located outside India - N/N. 9/2009-ST dated 03.03.2009 and N/N. 15/2009-Service Tax dated 20.05.2009 - invocation of Extended period of Limitation - HELD THAT:- Since the services have been availed by the appellant from outside India within Special Economic Zone and therefore, barring brief period of two months for the majority of period the services availed by them from foreign based agent for the promotion of the sales was falling under the exempted category as the services received by them were in the Special Economic Zone unit.
There are force in the argument of the learned Advocate that the substantive benefit of the service tax exemption provided under Section 26 of the Special Economic Zone Act and Rule 31 of the Special Economic Zone Rules cannot be denied only on procedure requirement under Notification No. 9/2009 dated 03.03.2009 as amended by Notification No. 15/2009 dated 20.05.2009.
The services received by the appellant from their foreign based agents who were engaged in promotion of sales abroad though chargeable to Service Tax under category of Business Auxiliary Service under reverse charge mechanism basis by virtue of exemption Notification No. 9/2009-ST dated 03.03.2009 as amended by Notification No. 15 of 2009-ST dated 20.05.2009 and by general exemption for Special Economic Zone units provided under Section 26 of the Special Economic Zone Act, 2005, the services received from abroad shall remain exempted and therefore, the demand raised against the appellant is without any merit.
Extended period of limitation - SCN issued by the department invoking extended time proviso under Section 73(1) of Finance Act, 1994 as the show cause notice was issued on 19.09.2014 for the period April 2009 to March 2011 - HELD THAT:- All the transactions of foreign exchange payment were reflected in their books of account and the by taking necessary permission from the Reserve Bank of India. In view of this the elements for invoking extended time period such as fraud, collusion, misstatement and suppression of facts with an intent to evade duty are absent in this case and therefore the demand is time barred and same also deserved to be dropped on the grounds of limitation.
The impugned order in appeal is without any merit and therefore, the same is set aside - appeal allowed.
-
2024 (3) TMI 921 - CESTAT KOLKATA
Calculation of interest - it is alleged that calculation of interest was not done, when it was due and when it was paid - also alleged that interest calculated in a clubbed manner - HELD THAT:- It is not disputed by the Revenue that in 2006, the appellant took registration themselves and started paying Service Tax on their activity. Moreover, the appellant was entitled for abatement of 50% of the Service Tax payable by them in terms of Notification No. 20/2004-S.T. dated 10.09.2004 and the appellant has not claimed abatement in terms of the said Notification, which shows that the appellant was bona fide in not discharging Service Tax initially and thus started paying Service Tax later on. Whatever amount was collected by the appellant from M/s. Tata Motors Ltd. has already been deposited with the Department. In the circumstances, no penalty is imposable on the appellant.
Further, the appellant has disputed certain calculation of interest, which the appellant is ready to pay. For the purpose of calculation of interest, the matter is required to be remanded to the adjudicating authority. Therefore, the matter is remanded back to the adjudicating authority only for the purpose of calculation of interest.
The appeal is disposed of by way of remand.
-
2024 (3) TMI 920 - CESTAT KOLKATA
Levy of service tax - commercial or industrial construction service - construction of laying solid, construction of trenches and construction connecting such trenches at road crossings - period from 2004-05 to 2007-08 or not - HELD THAT:- It is not disputed by the Revenue that these services have been provided by the appellant along with materials. Therefore, the merit classification of the above services is “works contract service”, as held by the Hon’ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] wherein the Hon’ble Apex Court observed Works contract were not chargeable to service tax prior to 1.6.2007.
Therefore as no demand has been raised against the appellant under the category of “works contract service” during the said period, no Service Tax is payable by the appellant under ‘commercial or industrial construction service’ - Moreover, the Show Cause Notice in this case has also been issued by invoking the extended period of limitation, which came to be issued on 20.04.2010 for the period 2004-05 to 2007-08.
The impugned order set aside - appeal allowed.
-
2024 (3) TMI 919 - CESTAT KOLKATA
Levy of Service Tax - Consulting Engineer Service - execution of work of construction of Residential Complexes in the state of Bihar - denial of CENVAT Credit on architectural Service - input service or not - HELD THAT:- The Executing Agency has not been assigned the work of actual construction, which has been done by the contractors. The role of the Appellant as an Executing Agency is to ensure that the works are executed as per drawings and specifications. They have to provide their expertise and experience for smooth completion of the projects. Accordingly, the Appellant has not rendered 'Construction of Complex Service'. The service rendered by the Appellant is rightly classifiable as 'Consulting Engineer Service' and the Appellant has rightly paid service tax on the 8.5% agency fees received, under this category. Accordingly, the demand of service tax along with interest and penalty confirmed in the impugned order under the category of 'Construction of Complex service' is not sustainable and hence we set aside the same.
The impugned order has confirmed the Service Tax of Rs.3,63,321/- on the differential value of Rs.29,31,401/- during the period 2005-06 to 2008-09 - the calculation has been done unilaterally by the adjudicating authority without giving an opportunity to the appellant to explain the actual difference. Accordingly, it is found that it is required to remand it back to the adjudicating authority to arrive at the differential value after giving an opportunity to the appellant to explain the difference. Hence, the matter is remanded back to the adjudicating authority only for the limited purpose of arriving at the differential value of taxable service of Rs.29,31,401/- worked out by the Department as above.
CENVAT Credit availed and utilized by the Appellant on Architectural Consultancy services - HELD THAT:- This is an essential input service required for rendering of the 'Consulting Engineer service rendered by the Appellant. As per the MOU signed on 18.01.2008, it is the responsibility of the Appellant to ensure that the works are executed as per drawings and specifications. The Appellant cannot fulfill this responsibility without the input service of architecture received from the Architects. Thus, there is no merit in the findings in the impugned order that ‘architectural Service’ is not covered within the definition of ‘input service’. Accordingly, the 'Architecture ' service received by the Appellant is an 'input service' in terms of Rule 2 of CENVAT Credit Rules,2004 and the Appellant has rightly availed and utilized the credit on such input service. Hence, the denial of CENVAT Credit availed and utilized by the Appellant on 'Architecture service' is not sustainable. Accordingly, the impugned order demanding reversal of this credit along with interest and penalty set aside.
The appeal is partly allowed and partly remanded.
-
2024 (3) TMI 918 - CESTAT KOLKATA
CENVAT Credit - common cenvat credit account for manufacture of dutiable goods as well as a provider of output services - non-maintenance of separate records - penalty - HELD THAT:- The assessee is a manufacturer of dutiable goods as well as a provider of output services and in the Cenvat Credit Rules, there is no provision to maintain a separate account for input/input services used for manufacturing activity and the separate account to be made for input or input services used for providing output services. There is a common cenvat credit account, which was used for payment of other duty or service tax.
In that circumstances, the show-cause notice was not required to be issued as held by this Tribunal in the case of M/S. LARSEN & TOUBRO LIMITED VERSUS COMMISSIONER OF CGST & CX, BHUBANESWAR COMMISSIONERATE [2022 (10) TMI 1077 - CESTAT KOLKATA] wherein this Tribunal has held It has been held in numbers of cases that as far as the inputs or input services are availed on payment of duty and as long as they are capable of being used in the provision of Service Tax and manufacture of excisable goods, credit cannot be denied and that there is no requirement of oneto- one correlation.
Penalty u/r 15 of the Cenvat Credit Rules, 2004 - HELD THAT:- As the demand is not sustainable, therefore, the question of imposition of penalty under Rule 15 of the Cenvat Credit Rules, 2004, does not arise.
Thus, no demand is sustainable against the assessee. Accordingly, assessee’s appeal is allowed.
-
2024 (3) TMI 917 - CESTAT KOLKATA
Levy of Service tax - activity of construction of railway infrastructure i.e., tracks - benefit of exemption under Notification No. 17/2005-S.T. dated 07.06.2005 and Notification No. 25/2012-S.T. dated 20.06.2012 - HELD THAT:- The said issue has been examined by this Tribunal in the case of M/S HARI CONSTRUCTION & ASSOCIATES PRIVATE LIMITED VERSUS COMMISSIONER OF CGST & EXCISE, PATNA II [2023 (9) TMI 454 - CESTAT KOLKATA] wherein it has been observed The ‘taxable service’ in Finance Act, 1994 excluding ‘railways’ from the ambit of the service did not place any restriction on benefit going to private railways. The statute, 10 ST/86191/2021 too, did not consider it necessary to fall back on the definition of ‘railways’ in another statute for determination of taxability and it is not open to the adjudicating authority to arrogate that privilege in an executive capacity. The intent of exclusion prior to 1st July 2012, and exemption for the period, thereafter, is abundantly clear.
The issue has already been settled by this Tribunal and it has been categorically held that there is no distinction between public railways and private railways. In these circumstances, following the decision of this Tribunal in the case of M/s. Hari Construction & Associates Pvt. Ltd., it is held that the appellant is entitled to the benefit of exemption vide Notification No. 17/2005-S.T. dated 07.06.2005 and Notification No. 25/2012-S.T. dated 20.06.2012, as claimed. Accordingly, no demand of Service Tax is sustainable against the appellant.
The impugned order set aside - appeal allowed.
-
2024 (3) TMI 860 - SC ORDER
Levy of service tax - Business Auxiliary service or not - commission on sale of liquor - it was held by Appellate Tribunal that the transaction of purchase and sale of liquor by the Corporation will not fall within the ambit of BAS and would, therefore, not be taxable - HELD THAT:- Following the order dated 16.07.2018 passed by a coordinate Bench of this Court in respect of the very same assessee in THE COMMISSIONER OF CENTRAL EXCISE JAIPUR I VERSUS RAJASTHAN STATE BEVERAGES CORPORATION LTD. [2018 (7) TMI 1057 - SC ORDER] and on the same questions which arise in the aforesaid cases, this appeal is also dismissed.
-
2024 (3) TMI 859 - CESTAT CHANDIGARH
Levy of Service tax - Business auxiliary service - commission retained/earned towards the service rendered by them to the co-GSA/IATA - extended period of limitation - HELD THAT:- On going through the explanation given under Section 65(19) commission agent means a person who acts on behalf of as a person and causes sale or purchase of goods, provision or receipt of services, for a consideration and includes any person who does some of the things, while acting on behalf of another person. It is alleged that the appellants are commission agents for their co-operators and are earning commission for the same and therefore they are rendering business auxiliary service to their co-operators. However, the practice of the trade, if observed closely, would indicate that the appellants are buying tickets on behalf of their customers/clients and not definitely on behalf of their co-operators.
The entire surmise in the show cause notice is ill conceived. The relation between the appellant and the co-operators appears to be one of the principal-to-principal basis. If at all the appellants are presumed to be acting on behalf of somebody else for a commission, it is their customers/clients for whom they are buying tickets from other GSA/IATA operators. However, this is not the allegation in the show cause notice. Therefore, there are no principal and agent relationship between the other GSA/IATA operators and the appellants.
Tribunal had an occasion to deliberate on the very same issue wherein Tribunal came to the conclusion that purchase and sale tickets for a commission between two agents operating under GSA/IATA does not amount to rendering any service exigible to service tax. Tribunal in the case of C.S.T., SERVICE TAX- AHMEDABAD VERSUS M/S OM AIR TRAVELS PVT. LTD. [2019 (6) TMI 1022 - CESTAT AHMEDABAD] held that In the fact that the appellant is purchasing the ticket on discounted price and selling the same at higher price to the customer, the difference, in our view, is a trade margin during the process of sale and purchase of the tickets. Therefore, we do agree with the contention given by the Ld. Commissioner (Appeals). Accordingly, the demand raised on trade margin of purchase and sale of the tickets shall not be taxable.
Invocation of Extended period of Limitation - HELD THAT:- There is considerable force in the arguments of the Ld. counsel for the appellants; revenue did not bring about any evidence to allege suppression etc. with intent to evade payment of service tax; moreover, it is found that when regular audits were conducted, revenue having raised the issue in subsequent audits, cannot take recourse to invoke extended period.
The inevitable conclusion one can draw is that the appellants are not rendering any “Business Auxiliary Service” to the other GSA/IATA operators and therefore the commission earned by them is not exigible to service tax as proposed in the show cause notice and confirmed in the impugned order. Therefore, the impugned order is not legally sustainable and is liable to be set aside - Appeal allowed.
-
2024 (3) TMI 858 - CESTAT NEW DELHI
Exemption from service tax - rent-a-cab service - State Transport Undertaking - reverse charge mechanism - Extended period of limitation - HELD THAT:- The issue is no more res integra. In BANGALORE METROPOLITAN TRANSPORT CORPORATION VERSUS COMMISSIONER OF SERVICE TAX [2015 (2) TMI 100 - CESTAT BANGALORE] it has been held at the business undertaken by BMTC is to provide bus facility /transport facility to the citizens of Bangalore city and main activity is that running the buses in the city for convenience of the citizens and thus it cannot be called as a rent-a-cab service operation. The definition of cab under section 65 (20) of Finance Act, 1994 of maxicab under section 65 (70) of Finance Act read with Section 2 (22) of Motor Vehicle Act and of rent-a cab scheme operator defined under section 65 (91) along with the meaning of taxable service in relation to renting of cabs given under section 65 (105)(a) of the Finance Act, 1944 have been examined by the Tribunal in BMTC case. The Tribunal has held that definition itself excludes State Transport Undertakings (Bangalore’s BMTC in said case) from the category of service providers.
Though in the present case the appellant is alleged to be the recipient of rent-a- cab service and is held liable under reverse charge mechanism (RCM) it is observed that Notification No. 25/2012 dated 20.6.2012 exempts State Transport Undertaking from any tax liability. The decision of Maulana Azad is well applicable to present case - appellant is not liable to service tax for receiving buses and taxis on hire. The appellant cannot be made liable to tax not even under RCM for receiving legal consultancy services.
Extended period of limitation - HELD THAT:- There is no evidence found on record proving such intent / mensrea with the appellant to evade payment of service tax. The appellant have already been held not liable to pay the amount confirmed. Resultantly, it is held that the department has wrongly invoked the extended period of limitation while issuing Show Cause Notice.
There is no rational in confirming the impugned demand even under reverse charge mechanism - the demand on both the counts is wrongly being confirmed by the adjudicating authority below. Hence the order under challenge (Order-in-Original) is hereby set aside - appeal allowed.
-
2024 (3) TMI 857 - CESTAT CHENNAI
Failure to pay appropriate tax - Revenue from Programme and Advertising Service - quantum of service tax paid by them was not commensurate with the income accounted in the books of accounts - demand alongwith penalty - HELD THAT:- The dispute arose due to the lack of submission of data in a timely manner and a proper explanation of facts in correlation with the law, by the Appellant. Now that the Appellant is ready to present the data which as per their calculation leaves a very small amount of duty to be paid, it would serve the ends of justice if the same is verified and then examined in connection with the law and Boards Circulars referred to by the Appellant. The matter hence merits to be examined afresh.
The impugned order set aside - matter remanded back to the original authority for de novo adjudication - appeal disposed off.
-
2024 (3) TMI 856 - CESTAT CHENNAI
Exemption for export promotion under N/N. 18/2009-ST dated 01.07.2009 - seeking relief of taxes paid on the services used in manufacture of export products - failure to submit the relevant documents showing the payment of commission to their foreign commission agents - HELD THAT:- The Hon’ble Apex Court in a Constitution Bench judgment in S. AMARJIT SINGH KALRA (DEAD) BY L. RS. & ORS. VERSUS PRAMOD GUPTA (DEAD) BY L. RS. & ORS. [2002 (12) TMI 607 - SUPREME COURT] observed Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice.
It is not disputed that there has been a delay in filing the EXP-2 Return the reason for which has been explained by the Appellant. This delay is not shown to cause any prejudicial consequence for Revenue. However, the Appellant had furnished material which shows a substantial compliance with the requirements of the exemption notification - While determining whether a provision is mandatory or directory, in addition to the language used in the notification, the context in which the provision is used and the purpose it seeks to achieve should also be examined. A beneficial legislation should not be viewed very rigidly. It is noted that there were no allegations of any blame worthy act by the Appellant. The claim should hence have been scrutinized and the Appellant allowed to satisfy whatever doubts that the Original Authority had. In the circumstances, the substantial rights of the appellant should not have been denied on procedural grounds.
An order imposing a penalty involves an exercise of judicial discretion, which requires the decision to be fair, reasonable and objective. On the obverse side, anything arbitrary and whimsical would not satisfy the said requirement. This action of the Lower Authority has surprisingly found no comment in the impugned order and is defective to that extent. A simple act of claiming a tax benefit cannot be at the pain of being held liable for penalty. Such an order cannot be allowed to survive - there are no hesitation in not only quashing the penalty but also in setting aside the order.
Matter remanded back to the Original Authority for de novo adjudication on merits of the Appellants claim for duty exemption as per Notification 18/2009 Service Tax, dated 07/07/2009 only - appeal disposed off.
-
2024 (3) TMI 855 - CESTAT MUMBAI
Taxable service or not - services received by appellants from M/s Hoshizaki Europe BV - post negative list regime, with effect from 01.07.2012 - services can be treated as “Business Auxiliary Service” as per the definition given in Section 65(19) of the Finance Act, 1994 during pre-negative list period or not - ‘intermediary services’ for the purposes of Place of Provision of Services Rules, 2012 (POPS) - supply of bought out material as “free supplies” by the appellants to the service provider of construction of their factory building - extended period of limitation - penalty under Section 78 of the Finance Act, 1994 - period commencing from April, 2014 to September, 2015.
HELD THAT:- It transpires that for the period relating to the pre-negative list regime i.e., prior to 01.07.2012, the taxability was determined in terms of coverage of an activity under the service tax net to be defined as ‘taxable service’ under Section 65(105) ibid, which enumerated each of the specified services. For the period postnegative list regime, the category of services hitherto defined under the erstwhile regime were merged under a common phrase i.e., ‘service’ as defined under Section 65B(44) ibid, which was brought into effect from 01.07.2012. In the present case, the disputed transactions have been undertaken during April, 2014 to September, 2015. Hence, there is no legal basis on which the services rendered in marketing and sales promotion could be examined with respect to definition of ‘Business Auxiliary Services’ that existed in the past i.e., prior to 01.07.2012 - Further, 65B(55) ibid does not provide for the words and expressions used prior to 01.07.2012 to be made applicable in respect of Chapter V of the Finance Act, 1994 for the purpose of service tax. Hence, the findings at para 8 of the impugned order does not have any legal basis, and thus on this basis itself the demand of service tax on marketing and sales promotion service received by the appellants on RCM basis, is liable to be set aside.
The nature and value of the services provided are known to both parties i.e., the service provider and a service receiver. We also find that the consideration charged by Hoshizaki Europe is independent of the consideration received by the appellants in respect of the goods supplied by them to overseas customers. Thus the principle of separation of value, is also fulfilled in the present case. The main transaction between the appellants and the customers situated abroad, is the sale of goods manufactured by the appellants; and this is distinct and is completely different from the services provided by Hoshizaki Europe BV. Thus, all the three criteria laid down by the CBIC’s clarification is fulfilled in the present case to categorize the disputed services, as ‘intermediary services’.
Thus, in terms of specific Rule of the POPS which would more appropriately apply in this case, it is found that Rule 9 of POPS is applicable to the ‘intermediary service’ as it is the more appropriate rule for determination of place of provision of the service - the place of provision of service in the present case would be the location of the service provider i.e., Dubai. Hence, in respect of ‘intermediary services’ provided by the service provider from Dubai to the appellants in India, would not be exigible to service tax under Section 66B ibid.
Service tax levy on free supplies under the works contracts transaction - HELD THAT:- The Larger Bench of this Tribunal in case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] having similar set of facts of the case, had concluded that the value of goods and materials supplied free of cost by a service recipient to the provider of taxable construction service, would be outside the taxable value or the gross amount charged in terms of Section 67 ibid.
Extended period of limitation - HELD THAT:- This Tribunal in the case of RELIANCE INDUSTRIES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, LTU, MUMBAI [2016 (6) TMI 1108 - CESTAT MUMBAI] had decided the issue on the basis various judgements where it was held that In the instant case also if any tax was payable it could have been available immediately to the Appellant, thereby rendering the entire dispute being revenue neutral. This being the case the invocation of extended period of limitation is clearly not justified - the issue of invoking extended period of time for demand of service is answered in favour of the appellants.
There are no strong grounds to hold that the services received by the appellants from Hoshizaki Europe BV from its Dubai office for marketing and sales promotion services are liable for payment of service tax. Further, the value of goods and materials supplied free of cost by the appellants to the service provider of taxable construction service, would be outside the taxable value or the gross amount charged in terms of Section 67 ibid. Consequently the demands of service tax and imposition of penalties confirmed in the impugned order is not legally sustainable.
The adjudged demands confirmed on the appellants in the impugned order dated 14.02.2018 is liable to be set aside - Appeal allowed.
-
2024 (3) TMI 854 - CESTAT NEW DELHI
Manner of payment of Pre-deposit amount before filing of appeal against demand of service tax - Admissibility of payment of pre-deposit using DRC-03 - The appellant argued that they had deposited the pre-deposit using the input tax credit available in their DRC-03 under CGST regime. - HELD THAT:- Hon’ble High Court of Bombay in the writ petition filed in the case of SODEXO INDIA SERVICES PVT. LTD. VERSUS THE UNION OF INDIA AND ORS. [2022 (10) TMI 264 - BOMBAY HIGH COURT] has clearly pointed out that there is not proper provision to accept payment of pre-deposit under Section 35F of the Central Excise Act, 1944 through DRC-03.
In the decision of Tribunal, in the case of M/S. SAPHIRE CABLES & SERVICES PVT. LTD., M/S. TENORMAC ENTERPRISES PVT. LTD. AND M/S. NETIZEN ENGINEERING PVT. LTD. (FORMERLY KNOWN AS RELIANCE INFOCOMM ENGINEERING PVT. LTD.) VERSUS COMMISSIONER OF CGST & CE, BELAPUR [2023 (7) TMI 544 - CESTAT MUMBAI] reliance on placed on the fact that the relief was granted by the Hon’ble Bombay High Court in the case of Sodexo India Services Pvt. Ltd. The Hon’ble High Court in the said case has clearly observed that there is no provision for using credit in DRC-03 for the purpose of pre-deposit. It is obvious that the relief was granted by the Hon’ble High Court in exercise of writ jurisdiction. The Tribunal does not have that liberty. In this background, the decision of the Tribunal in the case of M/s Saphire Cables & Services Pvt. Ltd. & Ors. cannot be applied to the instant case.
The applications seeking admission on the strength of pre-deposit made using through DRC-03 are rejected. M/s Army Welfare Housing Organization are at liberty to file appeal after paying pre-deposit in any permissible manner.
-
2024 (3) TMI 853 - CESTAT CHENNAI
Nature of activity - manufacture or service - making of photo books/albums, calendars, brochures etc. to their different customers - whether the activity of the assessee amounts to ‘manufacture’ or whether it falls under ‘photography service’ prior to 1.7.2012 and whether would fall under the definition of ‘service’ for the period w.e.f 01.07.2012 to 30.07.2015? - HELD THAT:- The issue stands covered by the decision of the Tribunal in the case of M/S. VENUS ALBUMS CO. PVT. LTD. VERSUS CCE, CHANDIGARH/LUDHIANA/AMRITSAR [2018 (11) TMI 754 - CESTAT CHANDIGARH]. The Tribunal in the said case analyzed the issue relating to the very same activity and held that the activity would amount to ‘manufacture’ and does not fall under ‘service’.
The activity carried out by assessee amounts to ‘manufacture’. The demand of service tax cannot therefore sustain. The impugned order to the extent of confirming the demand, interest and imposing penalties is set aside.
Appeal allowed.
-
2024 (3) TMI 803 - GUJARAT HIGH COURT
Accepting the balance payment as per the Sabka Vishwas (Legacy) Dispute Resolution Scheme, 2019 (SVLDRS) Form 3 - HELD THAT:- It is apparent that the petitioner has not made balance payment of Rs. 12,32,643/- within the extended period of time. The petitioner has also not pointed out any circumstances which suggests that the petitioner was under severe financial crunch as canvassed before the respondents authorities in the representation made by the petitioner pursuant to the order passed by this Court.
As held by the Hon’ble Supreme Court in the case of Yashi Constructions [2022 (3) TMI 110 - SC ORDER] that the time limit cannot be extended by the Court as the same would amount to modifying the scheme, it is only the respondent authority or the Government can extend the time, which is already extended during the COVID-19 pandemic upto 30th June 2020 and later on, upto 30th September 2020.
This petition is not entertained and is, accordingly, dismissed.
-
2024 (3) TMI 802 - CESTAT AHMEDABAD
Levy of service tax - services of laying Pipes were provided to Government of Gujarat under ‘Sujalam Sufalam Yojana’ and the same was not provided for commercial purpose or otherwise - HELD THAT:- From the decision in LARSEN & TOUBRO LTD. VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD [2011 (1) TMI 188 - CESTAT, AHMEDABAD], it can be seen that in the above case also the similar activity of laying of pipe line was carried out for the state of Gujarat Board i.e. ‘Gujarat Water Supply and Sewerage Board’ wherein the demand of service tax was set aside. The facts and issue in the present is the identical to above case. Therefore, the ratio of above decision is directly applicable in the present case.
The demand in the present case is also not sustainable. Hence the impugned order is upheld - appeal of Revenue dismissed.
-
2024 (3) TMI 801 - CESTAT NEW DELHI
Extended period of limitation - suppression of facts or not - Denial of CENVAT Credit - inputs and capital goods - HELD THAT:- It is a settled principle that the demand can be invoked only during the normal period of limitation unless one of the elements required to invoke the extended period of limitation were present in this case. The Commissioner held that there was suppression of facts for the reason that the assessee had not declared that it had availed CENVAT credit on certain capital goods and had also not sought any clarification from the department. It is found that the responsibility of the assessee is only to file ST-3 returns. Unless the ST-3 return requires declaration of details of the goods on which the credit was taken, CENVAT credit can be availed without declaring the details and no fault lies at the doorstep of the assessee. In fact, since the ST-3 returns are to be filed online, there is no scope for assessee to add any extra information - there is no requirement or provision under the Act to seek clarification from the Department. As far as self-assessment is concerned, it is followed by every assessee in service tax and operating under self-assessment is not a ground on which the extended period of limitation can be invoked. For these reasons, the demand of CENVAT credit for the period up to 30.06.2012 needs to be set aside on this ground of limitation alone.
CENVAT Credit - capital goods - 38 tippers - 4 excavators - HELD THAT:- Undisputedly the excavators, tippers and the graders were not exclusively used but were used partly for providing exempted service, namely, road construction and partly used for providing taxable services. For this reason Revenue’s appeal needs to be dismissed - Appeal dismissed.
Interest on capital goods CENVAT Credit - HELD THAT:- There are force in the contention of the assessee insofar as the order for recovery of interest on this amount of CENVAT credit is concerned. Learned counsel for the assessee is correct in his assertion that CENVAT credit can be availed once the capital goods are received and there is no prescription under the rules as to when they should be put to use in providing taxable services nor is there any provision under which any interest can be recovered for the period between the date of taking credit and date on which they are put to such use. Therefore, the demand of interest needs to be set aside.
CENVAT Credit on tyres, tubes and flaps - HELD THAT:- The issue on the question of limitation has been decided in favour of the assessee. It has been found that no case has been made out by the Commissioner in the impugned order for invoking the extended period. The demand of CENVAT credit tyres tubes and flaps cannot be sustained and, therefore, needs to be set aside.
CENVAT Credit on Soil Compactor and roller - HELD THAT:- The Commissioner was correct in stating that as per rule 6(c) of CCR no CENVAT credit can be availed on capital goods which are used exclusively for providing exempted services. However, it is the assertion of the assessee that after the show cause notice was issued, the capital goods were indeed, used for providing some taxable service also this submission was not accepted by the learned Commissioner. Notwithstanding this fact, we find that the demand is time barred. It, therefore, could not have been sustained in any case. It is set aside on the ground of limitation.
Penalties - HELD THAT:- The necessary ingredient for imposing penalty under 15 of CCR or invoking section 78 is an element of fraud or collusion or willful misstatement or suppression of facts or violation of Act and Rule with intent to evade payment of service tax. We have already held that no case has been made out in the impugned order for invoking the extended period of limitation. Therefore, penalty invoking section 78 also cannot be sustained. Accordingly, the penalties of Rs. 7,46,081/- and Rs. 12,29,271/- set aside - penalty of Rs. 5000/- imposed under rule 15A cannot be sustained and, accordingly, the same also needs to be set aside.
Appeal disposed off.
-
2024 (3) TMI 800 - CESTAT NEW DELHI
Invocation of Extended period of limitation - classification of services under Business Support Services or not - HELD THAT:- From the fact that several show cause notices have been issued by the Department, it cannot be said that the Department is not aware of the allegations now being made in the instant show cause notice. The facts were in the knowledge of the Department. In fact, the learned Counsel for the appellant has referred to Order-in-Appeal No.278/2013 dated 19.07.2013, where the show cause notice dated 5.4.2010 was under challenge wherein the demand pertained to the period May, 2006 to September, 2008 for rendering the services towards arranging travel of clients covered under the “Business Support Services”. The show cause notice was confirmed by the order-in-original dated 13.06.2011 by the Addl. Commissioner of Service Tax, Bangalore and on the same being challenged by the appellant, the Commissioner (Appeals) held the demand under the “Business Support Services” as unsustainable, observing that it is not the case of the Department that the assistance provided by them is used for the purpose of business or commerce referring to the Circular No.109/03/09 dated 23.03.2009 issued by the Board.
In view of these facts, the issue of limitation is squarely covered by the decision of the Supreme Court in Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT] where the Court held that the allegation of suppression of facts against the appellant cannot be sustained, when the first show cause notice was issued all the relevant facts were in the knowledge of the authorities.
The assessee was under statutory obligation of self-assessment to disclose the requisite details and pay the correct service tax amount and non-disclosure thereof amounts to suppression of material facts from the Department and therefore, the extended period of limitation of 5 years from the relevant date can be invoked under Section 73(1) of the Act - The allegation of suppression of facts have been buttressed on the ground that by virtue of the audit of the accounts by the Central Excise Revenue Audit (CERA) of the Chennai location of the assesse it came to knowledge that they were charging the ‘management fee’ which is in addition to the price of the ticket.
As the issue on limitation has already been answered by the decision of the Apex Court in Nizam Sugar Factory [2006 (4) TMI 127 - SUPREME COURT] and also by the Tribunal in M/s G. D. Goenka [2023 (8) TMI 995 - CESTAT NEW DELHI], there is no reason for us to differ from that view and following the same, we are of the considered opinion that the department cannot invoke the extended period of limitation and therefore the demand in so far as it falls beyond the normal period of limitation is unsustainable and is accordingly set aside.
The appellant merely facilitates and assist the individuals who are travelling on which no service tax is leviable for the simple reason that service tax is charged on the service provided. The services in question does not fall within the scope of “Business Support Service” and therefore no service tax is leviable under the said category.
The Larger Bench in Kafila Hospitality and Travels Pvt Ltd. [2021 (3) TMI 773 - CESTAT NEW DELHI (LB)] had observed that the definition of “air travel agent” includes all services connected with or in relation to the booking of passage for travel by air. The miscellaneous services rendered by the appellant are also in furtherance of the travel agent service to its customers and hence cannot be classified under the “Business Support Service”.
The learned Counsel has further argued that no reliance can be placed on the Board’s Circular No.137/6/2011- ST dated 20.04.2011 as relied on by the Commissioner in the impugned order. There are force in the submissions of the learned Counsel that services have to be classified in terms of section 65A/66F of the Act - the Larger Bench in the case of Kafila Hospitality [2021 (3) TMI 773 - CESTAT NEW DELHI (LB)] also dealt with the similar contention where the two competing entries were ATA service and BAS and relying on the provisions of section 65A(2)(a) of the Act concluded that the classification of the service would fall under air travel agent services and not business auxiliary service. Applying the same principle, we are of the view that the services rendered by the appellant being in connection with the air travel agent service has to be classified therein and not under the “business support service” as claimed by the Revenue.
Since the issue decided on merits in favour of the appellant and also on the issue of extended period of limitation there is no need to go into the question of interest or penalty. The appeal filed by the Revenue on the plea that the demand for the period 2010-2011 is within the period of five years also does not survive in view of the issue decided on extended period of limitation and on merits.
The impugned order needs to be set aside - the appeal filed by the assessee is accordingly allowed.
-
2024 (3) TMI 799 - CESTAT ALLAHABAD
Imposition of personal penalty on the appellant in terms of Section 78A of the Finance Act, 1994 - appellant was one of the partner of the main notice - HELD THAT:- From Section 78A it is evident that penalty under this section can be imposed only on a person who at the time of such contravention was in charge of, and was responsible to, the company for the conduct of business of such company and was knowingly concerned with such contravention. Original authority has instead brushed aside the submissions made by the appellant on the basis of supplementary agreement, as afterthought, without examining the same. In absence of any finding to the effect that appellant was responsible for the conduct of business of the firm at the time of contravention, there are no merits in the orders of lower authorities imposing penalty on the appellant under Section 78A.
There are no merits in the impugned order which is set aside - appeal allowed.
-
2024 (3) TMI 798 - CESTAT NEW DELHI
Short payment of service tax - Business Auxiliary Services - appellant submitted that the rate of service tax has changed from 10.2% to 12.24% w.e.f. 18.04.2006 and therefore the appellant was liable to pay the service tax @ 12.24 % only on the amount realized in respect of taxable services provided on or after 18.04.2006 - HELD THAT:- It is found that the basis of the show cause notice is only that a sum of Rs.1,12,960/- is short paid by the appellant and no allegations have been made that these services were provided after the cut off date, i.e. 18.04.2006.
The High Court of Delhi in VISTAR CONSTRUCTION (P) LTD/PIYARE LAL HARI SINGH BUILDERS PVT LTD VERSUS UNION OF INDIA AND ORS [2013 (2) TMI 52 - DELHI HIGH COURT], relying on the decision of the Apex Court in ASSOCIATION OF LEASING & FINANCIAL SERVICE COMPANIES VERSUS UNION OF INDIA AND OTHERS [2010 (10) TMI 4 - SUPREME COURT], declared the Instruction invalid as it made the service tax chargeable on receipt of payment for the service. The Court held that the rate of tax applicable on the date on which the services were provided would be the one that would be relevant and not the rate of tax on the date on which payments were received as the taxable event under the Finance Act was providing or rendition of the taxable services.
The Commissioner, while passing the impugned order has gone beyond the scope of the show cause notice in observing that the appellant have not produced or enclosed the copies of the relevant bills/invoices, the copies of the ledger of the parties to whom the invoices for the period on which rate of service tax at the rate of 10.2% was applicable so as to prove the services in respect of said realisation were rendered during the earlier period, when rate of service tax was 10.2% and in the absence thereof, it cannot be confirmed that services were rendered during the earlier period. As noticed above, the show cause notice is absolutely silent as to the reasons for raising the demand and hence the show cause notice is unsustainable.
The impugned order deserves to be set aside and accordingly, the appeal is allowed.
............
|
