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Service Tax - Case Laws
Showing 241 to 260 of 31546 Records
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2025 (5) TMI 1998
Remanding the demand for mining services, despite the amount having been accepted - remanding the demand when the amount was paid prior to issuance of SCN, as accepted by the said M/s. EMTA and thus paid - cargo handling service - mining service - HELD THAT:- The learned Tribunal has taken note of its order passed in respect of the site formation service wherein the Tribunal had affirmed the order passed by the adjudicating authority dropping the demand in respect of site formation services on the ground that the contract entered by the assessee with third parties was a composite contract and payments were made based upon the quantity of coal which has been raised. It is not in dispute that as per original contract dated 14.3.1997, the assessee was to provide all the services upto loading of coal at railway siding but subsequently by another agreement dated 2.3.2010 it was agreed between the assessee and BECML that all the work of loading and transportation of coal from the colliery pithead stage would be arranged by BECML and the assessee’s work in respect of coal extracted from the mines would be restricted upto stacking of coal at pithead only.
Thus, handling and transportation of coal/mineral from pithead to a specified location within the mine/factory or for transportation outside the mine was included. Therefore, it is clear that the activity of handling of goods, including of unloading and loading thereof being part of the mining services to be rendered under the agreements entered into by the assessee cannot be bifurcated under different heads for the purpose of demanding service tax.
Identical issue was considered by the High Court of Judicature at Allahabad in the case of Commissioner of Central Excise –versus- Manoj Kumar [2012 (9) TMI 941 - ALLAHABAD HIGH COURT] wherein it was held that the activity of loading, unloading, packing, unpacking, stacking, restacking and shifting of sugar bags from mill floor to godown or from one godown to another godown within the factory is not covered in cargo handling service as there being no activity of loading or unloading for movement outside the factory on public road or ship or aeroplane or trucks for any destination.
Conclusion - It has to be necessarily held that the activity of handling of goods including loading and unloading thereof being part of the composite agreement entered into by the assessee with the third parties cannot be bifurcated under different heads for the purpose of demanding service tax.
Appeal allowed in part.
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2025 (5) TMI 1997
100% EOU - refund of unutilized CENVAT credit - rejection on the ground that the services were done in unregistered premises and there was no nexus between input and output service.
Unregistered Premises - HELD THAT:- The appellant is a 100% Export Oriented Unit registered under the Finance Act, 1994, under the category "Information Technology Software Services" vide registration No. AACCC8095QST001. The appellant had obtained registration on 16/03/2009. On relocation, the appellant had amended the service tax registration certificate on 05/01/2012 to incorporate the new registered premises at Taramani.
In the case of Commissioner of Service Tax-III, Chennai Vs Customs, Excise & Service Tax Appellate Tribunal, Chennai & M/s. Scioinspire Consulting Services (India) Pvt Ltd, Chennai, [2017 (4) TMI 943 - MADRAS HIGH COURT], the Hon’ble Court Held that 'Mere perusal of Rule 5 of the 2004 Rules, would, inter alia, show that where a service provider, provides an output service, which is exported, without payment of service tax, he would be entitled to refund of cenvat credit, as determined by the formula provided in the Rule-Rule 5 of the 2004 Rules does not stipulate registration of premises as a necessary prerequisite for claiming a refund.'
It is found that the order is very cryptic and rejects the claim on the ground that, “service tax availed and claimed as refund from un-registered premises etc. which is not directly used for providing the output service as provided under Rule 2(1) and 3 of the Cenvat Credit Rules, 2004.” It is not disputed that the appellant is a 100% Export Oriented Unit registered under the Finance Act, 1994, under the category "Information Technology Software Services" vide registration No. AACCC8095QST001. He hence satisfies the provisions of registration. There is no mention in the said Rules that service tax can be availed only in a registered unit. Moreover, in the circumstances cited by the appellant he could have been facilitated by examining the actual input/ output details of CENVAT Credit from the records maintained by the appellant. There is no allegation that the appellant was asked for data which he refused to provide. Hence this finding in the impugned order must be set aside with consequential relief.
Nexus Between Input and Output services - HELD THAT:- The OIO’s are very cryptic and do not discuss as to why the input services cannot be corelated to the output. As stated by Hon’ble Justice Krishna Iyer in Organo Chemical Industries & Anr vs UOI [1979 (7) TMI 241 - SUPREME COURT], ‘The inscrutable face of a sphinx is ordinarily incongruous with a judicial or quasi-judicial performance.’ Hence the order merits being set aside on this ground alone. The Commissioner (Appeals) has tried to improve upon the order of the Original Authority by discussing the law without examining the facts of use/ non-use of each input service with the output. Further, the judgment and Circular cited by the appellant also cover the issue in their favour.
Conclusion - The impugned orders rejecting refund claims on grounds of unregistered premises and lack of nexus are unsustainable. The appellant is entitled to refund of unutilized CENVAT credit pertaining to export of services, subject to consequential relief as per law.
Appeal allowed.
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2025 (5) TMI 1996
Service Tax on incentives/discounts - applicability of revenue neutrality - Cancellation charges of booking made by customers for purchase of motor vehicles and commission received from banking and other financial institution for processing of loan etc - demand of interest and penalty under Section 78 of the Finance Act, 1994 - HELD THAT:- We find that on the basis of advance booking of cars, the Appellant placed orders with HMI to manufacture/supply the cars, but on account of cancellation, there was some kind of loss to the dealer and to compensate the same, cancellation charges were collected. There is no service element in such transaction. The amount collected towards cancellation charges does not represent “consideration‟ received on account of provision of any service. The Appellant entered into a contract with its customers where customers pledged to buy car. The non-defaulting party in such a case is entitled to damages from the defaulting party. The damages could be in the form of liquidated damages in which case the amount to be paid as compensation is decided before hand and indicated in the contract itself. Liquidated damages are not a consideration for contract of service but a compensation for breaking the contract. Where a customer books a car, he enters into a contract agreeing to buy it. If he re-negates on the contract, an amount is recovered as damages which in this case is called as "booking cancellation charges". It needs to be noted that a consideration is the purpose of the contract, the damages are penalty for breaking it. Therefore, booking cancellation charges being in the nature of damages are not a consideration for the contract. The CBIC vide Circular No.178/10/2022-GST dated August 03, 2022 confirmed this legal position. Therefore, the demand of service on the amounts received on this account needs to be set aside.
We find that the facts of the present case are squarely covered by the aforesaid decision of the Larger Bench of the Tribunal. Further, reference is made to the decision of the Tribunal in the case of Comet Car Sales & Service Pvt. Ltd.,[2024 (11) TMI 667 - CESTAT AHMEDABAD] whereby it has been held that booking cancellation charges received by the Appellant is in the nature of compensation and not consideration for service. Hence, no Service Tax is chargeable thereon.
Further, in the case of Divine Autotech Pvt. Ltd.[2024 (6) TMI 1329 - CESTAT NEW DELHI], the Tribunal categorically held that there is no service element in cancellation charges of booking. Hence, no Service Tax is chargeable thereon. Hence, we hold that demand on booking cancellation charges received by the Appellant is not sustainable and is liable to be dropped.
In the case of Jain Irrigation System Ltd. [2015 (9) TMI 160 - CESTAT MUMBAI] the Tribunal holds that revenue neutral situation comes about when credit is available to assessee himself. In the case of Coca-Cola India Pvt. Ltd. [2007 (4) TMI 17 - SUPREME COURT] the Hon’ble Supreme Court accepted the stand that the duty payable in respect of beverage basis/concentrates is modvatable. Since the duty payable is modvatable, there is no revenue implication. By applying the ratio of above decisions, we find that the demand on commission is a revenue neutrality case and as such no demand is sustainable.
As regards interest and penalty we find that the issue is no more res integra. Once demand is not sustainable, interest would not survive and penalty under Section 78 of the Finance Act, 1994 would not be imposable.
Thus, the impugned order cannot be sustained and is accordingly set aside. The appeal filed by the Appellant is allowed with consequential relief, as per law.
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2025 (5) TMI 1995
Entitlement to avail Cenvat Credit of Cesses - validity of the demand for recovery of wrongly availed Cenvat Credit along with interest and imposition of penalties - HELD THAT:- After considering the submissions made by both the parties and perusal of the material on record, I find that the identical issue has been decided by the Tribunal in the case of Punjab National Bank vs. CCE [2014 (10) TMI 29 - CESTAT NEW DELHI],
Thus, I am of the considered opinion that:
(a) The appellant is entitled to Canvat Credit on input services amounting to Rs.2,05,537/-.
(b) As for as Swatch Bharat Cess of Rs.7,341/- and Krishi Kalyan Cess of Rs.7,341/-, the appellant is not entitled to Cenvat Credit in view of the judgment of Hon’ble Kerala High Court in the case of Muthoot Finance Limited vs. Union of India [2024 (10) TMI 1658 - KERALA HIGH COURT] and the decision of this Tribunal in the case of SBI Cards And Payment Service Ltd. AND SBI Business Process Management Service Pvt Ltd vs. CCE & CGST [2024 (7) TMI 1404 - CESTAT CHANDIGARH], Gurugram. Therefore, the same is recoverable from them alongwith applicable interest.
(c) Penalties under Section 77 as well as under Section 78 are dropped.
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2025 (5) TMI 1994
Taxability of services - internet service - Telecommunication services - fall under the category of Online Information and Database Access or Retrieval Services (OIDAR Services) - Demand of service tax along with interest and penalty - HELD THAT:- On going through the case laws in this regard and produced by the learned counsel for the appellants, we are of the considered opinion that to become taxable under the category of OIDAR the ownership of the data is essential. Understandably, the appellants are mere internet service providers and do not give access to any data owned by them for payment of a consideration. This issue has been considered by the Tribunal in the case of United Telecom Limited [2008 (8) TMI 191 - CESTAT, BANGALORE] which are upheld by the Hon’ble High Court of Karnataka.
In view of the same, we find that the service rendered by the appellant is not covered under the OIDAR, therefore, the demand as far as it is confirmed under OIDAR is liable to be set aside.
Coming to the service tax of Rs. 21,10,146 is confirmed under Telecommunication Services classifiable under Section 65(105)(zzzx). Learned Counsel for the appellants submits that both the Original as well as the Appellate Authorities have gone beyond the scope of the show cause notice in confirming the demand under a service which was not even proposed in the show cause notice.
Therefore, we find that this portion of the demand also is not sustainable, accordingly we hold that Revenue has not made out any case for confirmation of service tax demand on the appellant either on OIDAR or Telecommunication services in the facts and circumstances of the impugned case. Accordingly, the appeal is allowed with consequential relief if any, as per law.
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2025 (5) TMI 1986
Valuation - whether the interest free security deposits taken by the appellant from their tenant/lessees leading to accrual of notional interest is an extra consideration to be included in the taxable value for the purpose of payment of service tax? - HELD THAT:- A perusal of the decision of the Tribunal in Murli Realtors [2014 (9) TMI 461 - CESTAT MUMBAI] as also of the decision in Binani Safe Deposit Voults and in appellant’s own case [2023 (10) TMI 498 - CESTAT NEW DELHI] reveals that since the consideration for leasing of the property is rent, so what can be levied to service tax is only rent and notional interest on the security deposit cannot be subjected to levy of service tax.
Conclusion - The service tax cannot be levied on the notional interest calculated by the department on the interest free security deposit collected by the appellant.
Appeal allowed.
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2025 (5) TMI 1919
Liability of the appellant to Service Tax under Clearing and Forwarding Agents Services - appellant acting as a selling agent for various principal companies - HELD THAT:- From the documentary evidences placed on record in the form of appointment agreements, the scope and nature of the understanding between the parties becomes clear. There is no disputes that the documents have to be considered in full and hence, these agreements also have to be read in entirety, as laid down by the Apex Court in the case of Super Poly Fabrics Ltd. Vs. CCE, Punjab [2008 (4) TMI 31 - SUPREME COURT]. When the agreements are read as a whole, what boils down is the fact that the appellant is providing the services of a selling agent alone.
There are no denial as to the fact of the appellant was procuring orders on behalf of their principles and promoting sales of their products for which services they had received commission. Strangely, even the show cause notice at page 2 having recorded the above factual position that the appellant was acting as a selling agent, however, has deviated from the above in the Order-in-Original, to hold that the appellant was acting as a Cleaning & Forwarding Agent.
Conclusion - The appellant in the case on hand is not performing the essential characters as highlighted by the Hon’ble High Court and hence the impugned order has failed to appreciate the facts in the proper perspective. Hence, the same cannot sustain.
Appeal allowed.
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2025 (5) TMI 1918
Levy of service tax - Business Auxiliary Service - Referral Charges received by the appellants from the corporate agents - amounts deducted by the appellants, from the payments due to their down line members, on account of Processing Fee, Cheque Processing Charges, Cheque Re-issue Charges, BC Transfer Fee, etc - Commercial Training and Coaching Centre Service in imparting Certified Business Training to their down line members - invocation of extended period of limitation - penalties.
Whether the Referral Charges, received by the appellants from the corporate agents are liable to service tax under ‘Business Auxiliary Service’? - HELD THAT:- The applicable service Tax on the Commission paid is discharged by the said Insurance Companies. There is no separate service rendered by the appellants to their clients, i.e. the sub-agents which could be taxable under “Business Auxiliary Services’; it is found that non-registration of the appellants as insurance agent does not alter the nature of the services rendered by the appellants to sub-agents. It can be understood from the scheme of the things that the appellants and the sub-agents are rendering the same service to the insurance companies and are sharing the commission paid by the insurance companies to the sub-agents. There is no such bar under the service tax law prohibiting such joint rendering of the service - the issue is answered in favour of the appellants.
Whether the amounts deducted by the appellants, from the payments due to their down line members, on account of Processing Fee, Cheque Processing Charges, Cheque Re-issue Charges, BC Transfer Fee, etc would be taxable under ‘Business Auxiliary Service’? - HELD THAT:- If the consideration is flowing from the customers of the appellant to the customers, by no stretch of imagination the same can be considered as remuneration in the hand of the appellants received from either the corporate agents or the insurance companies. There is no service alleged to have been provided by the appellants to their customers in this regard so as to treat the same as remuneration. Moreover, the appellants are not supporting any business of their customers and purchasing of insurance policy cannot not termed as a business of the customers. Therefore, the relation of service provider, service recipient and the consideration is not established in respect of this activity. These have to be considered as incidental expenses recovered or income generated in the course of business of the appellant and therefore cannot be held to the exigible to service tax. Therefore, no case has been established against the appellants on this account.
Whether appellants rendered 'Commercial Training and Coaching Centre Service’ in imparting Certified Business Training to their down line members were covered under or not? - HELD THAT:- Almost, all big business entities and corporates do conduct such training to their employees in order to make them competent in the respective fields. This cannot be equated to ““Commercial Training and Coaching Centre Services”. Revenue does not bring about any evidence as to the trainees who have undertaken the CBT, are capable of being employed elsewhere. In the absence of the same, it has to be understood that training is an in-house training, intended to train their own personal. It is the appellants who are the ultimate beneficiaries are consumers of the benefit. Therefore, the CBT given by the appellants cannot be a commercial coaching of the training. Revenue appears to be under a fallacy that every income should be as result of a service and every income is for a certain service. This argument is not acceptable. At the same time, we find that the argument, of the appellant that even if the said activity is treated as service they will be covered under small scale limit, is not acceptable. The limit for exemption is to be seen in the totality of the consideration received by the appellants in respect of all the services put together and not each service wise as rightly observed by the adjudicating authority.
Whether the extended period is invokable in the facts and circumstances of the case? - HELD THAT:- There is merit in the argument of the appellants on limitation, as the issues are about the interpretation of the provisions of Law and no positive evidence to allege suppression, misstatement etc. with intent to evade payment of duty has been adduced, it is opined that the appellants succeed on limitation too.
Whether penalties under Section 76, 78 & 77 imposable on the appellant and his partner? - HELD THAT:- When the demand of duty is not sustainable, there is no question of interest and penalties.
Conclusion - i) The appellants are not liable to pay Service Tax on any of the issues raised in the impugned Show Cause Notice and confirmed in the impugned order. ii) The appellants are not liable to pay Service tax on the amounts received under various heads such as referral charges received from Corporate sub-agents; income on account of Processing Fee, Cheque Processing charges, Cheque Reissue charges, BC Transfer fee from their down line members and the income on account of CBT Certified Business Training charges received from their down line members. iii) There is merit in the argument of the appellants on limitation, as the issues are about the interpretation of the provisions of Law and no positive evidence to allege suppression, misstatement etc. with intent to evade payment of duty has been adduced, it is opined that the appellants succeed on limitation too. iv) When the demand of duty is not sustainable, there is no question of interest and penalties.
Appeal allowed.
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2025 (5) TMI 1917
100% EOU - levy of service tax - Banking and Financial Services - foreign bank charges deducted by foreign banks in relation to realization of export proceeds - reverse charge mechanism - main allegation against the Appellant is that the Appellant realizes export proceeds from foreign buyers and makes transactions with foreign customers through their bank in India and also foreign banks - HELD THAT:- The issue involved in this appeal is no more res integra and on identical facts, the Tribunal has already decided in favor of the Assessee. The relevant portion in the Appellant’s own case in M/S. ANNUR COTTON MILLS VERSUS COMMISSIONER OF CENTRAL EXCISE, SALEM [2024 (2) TMI 83 - CESTAT CHENNAI] where it was held that 'From the record, it appears that while exporting their goods, they lodged their bills for collection to the Indian Bankers who in turn send the same to the foreign banks. The foreign banks while remitting the money to the Indian Bank, deduct their charges for collection of bills which in turn are charged by the Indian Banks from the appellants. When it is so, then the appellant are not entitled to pay the service tax.'
After appreciating the facts and in compliance to the judicial discipline, as there is no service provider and service recipient relationship between the appellant and Foreign Banks, it is opined that the demands raised cannot sustain and requires to be set aside.
Conclusion - i) The demand for service tax on foreign bank charges under "Banking and Financial Services" category is unsustainable and set aside. ii) The provisions of Section 66A and the 2006 Rules were incorrectly applied for the period after 01.07.2012; the correct legal framework is the Place of Provision of Services Rules, 2012. iii) No direct service provider-recipient relationship existed between the appellant and foreign banks; thus, service tax liability does not arise. iv) Penalties, interest, and late fees imposed consequentially on the demand are set aside.
The impugned order is set aside - appeal allowed.
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2025 (5) TMI 1916
Levy of service tax - hostel charges/fee collected from the students on account of uses of hostels provided by the appellant to such students while imparting the education to them - HELD THAT:- This Tribunal while adjudication, the Modi Education Foundation Case [2023 (5) TMI 609 - CESTAT NEW DELHI] has dealt with the facts with respect to the boarding school receiving hostel fees from the students in addition to the tuition fees and the other charges. The perusal reveals that the issues are identical in the said decision. While adjudication, this Tribunal has considered the another issue as to whether the two services, namely, hostel services and the education services are naturally bundled in the ordinary court of the business and while doing so, it has been held that 'hostel service and education services are naturally bundled in the ordinary course of business and it is the education service that gives the essential character to such bundle. Education services by way of pre-school education and education up to higher secondary school or equivalent are enumerated in the negative list of services enumerated in Section 66D of the Finance Act. Thus, it cannot be subjected to levy of service tax.'
The Hon’ble Apex Court also in the case titled as Assam State Tax Book Production and Publication Corporation vs. CIT [2009 (10) TMI 60 - SUPREME COURT] has held that providing hostel facility to people is also an activity incidental to imparting the education.
Conclusion - The demand of service tax on hostel fees collected by the appellant is unsustainable.
Appeal allowed.
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2025 (5) TMI 1915
Levy of service tax - amounts recovered as a penal charge which are charged with the intention to make good for the losses and to also act as a deterrent to ensure that buyer or supplier do not violate the terms of contract - HELD THAT:- The penal implications under contract cannot be identified as such an agreement. The payment towards delayed performance of service is only one condition of the contract, and thus cannot be called as the act of tolerating the delay of service. Hence, the disputed amount is not susceptible to service tax.
In the case of Food Corporation of India Vs. Surana Commercial Co. and others [2003 (9) TMI 812 - SUPREME COURT], the Hon’ble Supreme Court pointed out that if a party promises to abstain from doing something, it can be regarded as a consideration, but such abstinence has to be specifically mentioned in the agreement.
Reliance is also placed on Circular No. 178/10/2022-GST dated 03.08.2022 and Circular No. 214/1/2023-ST dated 28.02.2023, wherein it was clarified that the charges collected on account of non-performance of work within agreed stipulated time are not susceptible to tax. It is a trite law that circulars are binding on the department.
In the present case also the agreements do not specify what precise obligation has been cast upon the appellant to refrain from an act or to tolerate an act or a situation. It is no doubt true that the contracts may provide for penal clauses for breach of the terms of the contract but, as noted above, there is a marked distinction between ‘conditions to a contract’ and ‘considerations for a contract’. Thus the retention amount by the appellant does not undergo a change after receipt, it remains as ‘condition to the contract’. Hence cannot be called as ‘consideration to the contract’.
Conclusion - No service tax is attracted under the provisions of Section 66E(e) of the Finance Act. Once the service tax can not be levied, the imposition of interest and penalty also cannot be sustained.
Appeal allowed.
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2025 (5) TMI 1914
Entitlement to a refund of unutilized Cenvat credit on Cess - HELD THAT:- This issue is no more res integra and the Division Bench of the Kerala High Court in the case of Muthoot Finance Limited Vs. Union of India [2024 (10) TMI 1658 - KERALA HIGH COURT] has considered the identical issue as to whether the assessee is entitled to get the refund of Education Cess, Secondary & Higher Education Cess and Krishi Kalyan Cess after the GST regime has come into force.
We are also not impressed with the submission of the learned counsel for the appellant that the Assessing Authority ought to have considered and passed orders on the refund application preferred by it under Section 55 of the CGST Act. As rightly noticed by the learned Single Judge, the refund application could not be maintained in the first place, and hence, a direction to the respondents to consider the refund claim would be nothing but an exercise in futility.
Further, I find that the Division Bench of this Tribunal in the case of Lupin Ltd. Vs. Commissioner of Central Tax & Customs (Appeals) Guntur [2023 (3) TMI 741 - CESTAT HYDERABAD] wherein also the refund of credit of Krishi Kalyan Cess was denied.
Further, I find that the decisions relied upon by the learned Counsel for the appellant are not applicable in the facts and circumstances of the case, more so, in the wake of the judgment of the Kerala High Court cited (Supra) which is squarely applicable in the present case. Hence, by following the ratio of the decisions of the Kerala High Court, I am of the view that there is no infirmity in the impugned order which is upheld by dismissing the appeal of the appellant.
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2025 (5) TMI 1913
Taxability of the handling charges - such handling charges constitute part of the assessable value for service tax purposes or are exempted as transit insurance or compensation for breakage during transit - HELD THAT:- The Ahmedabad Bench of this Tribunal in the case of Gujarat Borosil Ltd. Vs. Commissioner of Central Excise and Service Tax, Surat-II [2017 (7) TMI 1034 - CESTAT AHMEDABAD]. The issue involved in said case was whether the amount equal to 7% of the value of the goods, collected as transit insurance charges from the dealers/buyers for safe delivery of the manufactured goods free from breakage in transit. The goods in the present case are fragile tiles and the handling charges received as nothing but the charges for ensuring delivery free from breakage in transit is includible in the assessable value and chargeable to duty.
In Gujarat Borosil Ltd. the Tribunal had categorically noted that the issue of charging duty on the charges by adding the same to the assessable value is settled by this Tribunal as similar proceedings initiated has been decided in GUJARAT BOROSIL LTD. VERSUS COMMISSIONER OF C. EX., SURAT-II [2009 (12) TMI 379 - CESTAT, AHMEDABAD] and Revenue’s appeal against the said judgement before the Apex Court was dismissed by Order dated 19.07.2010.
Based on these facts the Tribunal arrived at the conclusion that the amount equal to 7% of the value of the goods collected as insurance charges under the head “cost of transportation” from the dealers/buyers is not the excess amount of insurance charges collected and retained by the appellant but the amount has been collected as compensation for breakages during the course of transit by issuing credit notes. Thus, the payment made by the assessee to its customers for breakages and losses neither tantamounts to insurance nor cost of transportation and is includible in the assessable value.
In the present case the handling charges collected by the appellant are meant for breakage free transit of the manufactured goods as it was in case of transportation charges in Gujarat Borosil wherein these charges are denied to be included in the taxable value. Hence we find no reason to differ from the said findings.
Conclusion - Handling charges or amounts collected as compensation for breakages or losses during transit, which are not paid as insurance premium to an insurance company, do not constitute taxable service under service tax law.
The service tax demand has wrongly been confirmed on the handling charges received by the appellant - appeal allowed.
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2025 (5) TMI 1912
Rejection of appellant's contentions and cross objections on the ground that neither Section 84 nor Section 85 of the Act empowered the filing of such cross objections - HELD THAT:- A similar issue came up for consideration by the Tribunal as can be seen from its decision in Eveready Industries India Ltd v CCE, Meerut, [2011 (9) TMI 533 - CESTAT, NEW DELHI], where the matter was remanded to Commissioner (Appeals) for decision on merits.
The decision taken by the Tribunal is in identical fact circumstances. There are no reason to adopt a different course of action.
Matter remanded to the Learned Commissioner (Appeals) to consider the cross-objections filed by the appellant and to take a decision on its merits, duly adhering to the principles of natural justice - appeal allowed by way of remand.
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2025 (5) TMI 1911
Nature of activity - service or not - issuance of Licence permitting contractors to conduct their Business within the Bar - state subject or not - HELD THAT:- In the Appellant’s own case vide [2018 (5) TMI 404 - CESTAT CHENNAI], the Tribunal has held 'TASMAC is liable to pay service tax of the licence fees received for the period 1.7.2012 to 28.3.2013.'
Given that the fact situation in these appeals are the same as that in the above referred Order, the finding of the Tribunal that since the impugned services of TASMAC definitely fall in the Negative list of services as statutory functions being carried out by them based on authority of law, there will not be any service tax liability for the period from 29.03.2013 onwards under the provisions of Section 65B(44) read with other relevant provisions of the Finance Act, 1994; will hold good for the period involved in these appeals also.
Appeal allowed.
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2025 (5) TMI 1910
Violation of principles of natural justice - demand of service tax merely on the basis of income reflected in the Balance Sheet - HELD THAT:- From perusal of the notice, it is noted that there are 14 RUDs based on which the said notice has been issued and the demand has been calculated. Without giving an opportunity to the appellant to agitate all these issues, the adjudicating authority has proceeded to adjudicate the matter, which amounts to denial of principle of natural justice.
Matter remanded to the adjudicating authority with a direction to supply the copies of all the relied upon documents to the appellant, giving him sufficient opportunities to reply to the notice, and personal hearing before passing a fresh order in this regard.
Appeal allowed by way of remand.
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2025 (5) TMI 1898
Levy of service tax - Services to WECA HK in the capacity of an intermediary - credit of export - definition of the “Intermediary” - terms of Rule 9 of POPS Rules - evade payment of duty - Demand of service tax along with interest and penalty - HELD THAT:- On going through the terms of the Agreement, we find that the Agreement is between two principals. There is nothing in the agreements even to remotely indicate that the appellants are agents of WECA HK. The Revenue also did not come up with any evidence in the form of tripartite agreements between the appellants, their principal WECA HK and their vendors. In view of the same, it is difficult to accept that the appellants are agents/ brokers of WECA HK so as to be covered under Rule 9 of POPS Rules.
This Bench has taken similar view in respect of M/s Airbnb Payments India Pvt Ltd. [2024 (9) TMI 1172 - CESTAT CHANDIGARH]. We find that in the instant case too, the appellants cannot be called intermediary as per the criteria laid down by the Hon’ble Punjab & Haryana High Court in the case of Genpact India Pvt Ltd.[2023 (8) TMI 1210 - PUNJAB AND HARYANA HIGH COURT]. Therefore, we find that the impugned order incorrectly holds the appellants as intermediary and denies the benefit of export. Therefore, we find that the impugned order, confirming the demand holding that the appellants are an intermediary, cannot be sustained. When the impugned order does not survive on this issue, we find that it is a futile exercise to go into the elaborate submissions given by the learned Counsel for the appellants.
Thus, the appeal is allowed.
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2025 (5) TMI 1897
Demand service tax along with interest and penalties - activities undertaken are taxable under the category of ‘Manpower Recruitment Or Supply Agency Service’ - Section 65(68) of the Finance Act, 1994 - HELD THAT:- The issue involved in this appeal is no more res integra as there are catena of decisions rendered by the Tribunal Chennai in favor of the Appellants holding that the supply of cane harvesters, the laborers would not be falling under the Manpower Recruitment or Supply Agency Service. The decision rendered in the case of Arignar Anna Sugar Mills. Vs. Commissioner of GST & Central Excise, [2018 (9) TMI 387 - CESTAT CHENNAI], is relevant.
Thus, we find that the services of the Appellants would not be classifiable under ‘Manpower Recruitment or Supply Agency Service’ and consequently, the demand raised cannot sustain and so, requires to be set aside. Penalties imposed are also set aside. Ordered accordingly.
Thus, the appeal is allowed with consequential relief, if any, as per the law.
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2025 (5) TMI 1896
Levy of service tax - services provided to Nagar Parishad - Works Contract Services and Erection, Installation and Commissioning Services - invoking extended period of limitation - cum-tax benefit - Mega Exemption Notification No. 25/2012-ST - Demand along with interest and penalty - HELD THAT:- A perusal of the facts of case makes it abundantly clear that the work order for maintenance of street lights for the period 2015-16 is dated 31.3.2015. Consequently, it does not satisfy the condition of the entry 12A of the Notification no. 25/2012-ST dated 20.6.2012, and therefore the appellant is not eligible for the said exemption.
We draw support from the Supreme Court’s decision in the case of Commissioner of Customs (Import), Mumbai vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT (LB)] wherein the Apex court held that exemption notification under a taxing statute should be interpreted strictly.
Thus, we find no infirmity in the impugned order and uphold the same. Consequently, the appeal is dismissed.
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2025 (5) TMI 1895
Taxability of services to Delhi Development Authority [DDA] for Commonwealth Games [CWG] 2010 related projects - laying of water supply pipelines at the Saket Sports Complex - Construction services and Works Contract Services - eligible for abatement in terms of Notification No. 01/2006-ST - exemption provided to services to Govt./Quota Agency - extended period of limitation - demand alongwith interest and penalty - HELD THAT:- We note that the High Court of Rajasthan in the case B.B. Nirman Sahakari Samiti Vs. State of Rajasthan [1978 (11) TMI 160 - RAJASTHAN HIGH COURT], held that public utility means any work, project which is going to be useful to the members of the public at large. The public benefit aided at or intended to be secured need not be to the whole community but to a considerable number of people.
The Hon’ble High Court further held that Sports Stadia is used for public purpose. Merely because some amount is charged for using the facility, it cannot become a commercial or industrial construction. Even in a Children’s Park, entry fee may be levied for maintenance of the park, but that does not make it a commercial or industrial construction. Adopting the same logic, We hold that the work carried out by the appellant in the Siri Fort Sports Complex, Saket Sports complex and Yamuna Sports complex is non-commercial construction for use by the general public.
We find support from the Tribunal’s decision in M/s. B.G. Shirke Construction Technology Pvt. Ltd., vs. Commissioner of Central Excise, [2013 (2) TMI 584 - CESTAT MUMBAI]). In the said decision, the Tribunal held that the services provided for the sports facilities owned by State would not be chargeable to tax under commercial or industrial construction service.
We note that the Tribunal in the case of Hyundai Heavy Industries Co. Ltd.- [2013 (11) TMI 917 - CESTAT MUMBAI], had held that laying of submarine pipelines would not come within the purview of erection, commissioning and installation service. Further, the Tribunal in the case of Nagarjuna Construction Co. Limited vs. Commissioner of Central Excise, Hyderabad [2010 (5) TMI 232 - CESTAT, BANGALORE] and Indian Hume Pipe Co. Ltd. vs. Commissioner of Central Excise, [2008 (7) TMI 71 - CESTAT, CHENNAI] had also noted that laying of pipelines for water supply projects would come under the “construction service” and since only commercial construction is liable to service tax and the pipelines for water supply are not commercial activities, the same would not be taxable. This ratio has been followed by several Tribunal decisions.
Therefore, we hold that this activity is also not leviable to service tax. Hence, we are not examining the contention of the appellant that this work was not carried out by them.
We now address the issue of temporary parking in Vivek Vihar. We are of the opinion that it is not the intention of the legislature to levy service tax on public utility services, service areas. The temporary parking was also provided to DDA, a governmental agency for a public utility service. Hence, we hold that the same is also not leviable to service tax.
Thus, we set aside the impugned order, and allow the appeal.
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