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Service Tax - Case Laws

Showing 281 to 300 of 31546 Records

• 2025 (5) TMI 1757
  

  Application seeking refund of the pre-deposit - services of advertising agency - mandatory procedure as envisaged under Sections 78 and 79 of CGST Act, 2017 - erstwhile Service Tax provisions under Section 142 of the CGST Act - No opportunity of hearing - violation of principles of natural justice - HELD THAT:- It is a clear case of violation of principles of Natural justice. Revenue also argues that the action having been taken under section 79 of the CGST Act,2017, the Tribunal has no jurisdiction to entertain the appeal. I find that this Bench vide interim order dated 22.02.2024 held that the objection regarding the jurisdiction is over-ruled. However, I am of the considered opinion that that was only an interim order. Looking into the facts and circumstances of the case, the violation of principles of natural justice, in a matter concerning the implementation of the Finance Act, 1994, is of a primary and immediate concern of the Bench. Therefore, I am of the considered opinion that the issue of Jurisdiction can be agitated and decided at a more appropriate and emergent circumstances.

  I find that the appellant submitted copy of letter dated 30.08.2022 wherein it was stated that the amount of refund of Rs. 8,00,000/- as pre-deposit claimed in respect of OIO No. 18/CE&GST/ADC/CHD/2021 dated 26.03.2021 shall be appropriated in the interest of revenue under Section 79(1) of the CGST Act, 2017 from the arrears arising out of OIO No. 97/DC/ST/GST/CHD-II/2021 dated 24.03.2022 and that said order was preceded by a letter by the Range Superintendent.

  The appellant, moreover submits that they have also not received the copy of said order No. 97/DC/ST/GST/CHD-II/2021 dated 24.03.2022 against which the recovery was contemplated in the refund sanction order dated 07.09.2022. I find that this is a serious breach of Principles of Natural Justice. I find that the appellants have been denied an opportunity to represent against the action proposed to be taken against them and to appeal against the order that saddles them with a demand of Service Tax. I find that such an order can not be sustained and requires to be set aside.

  I am inclined to follow the decisions i.e., Hon’ble Supreme Court in the case of Saral Wire Craft Pvt Ltd [2015 (7) TMI 894 - SUPREME COURT] and Hon’ble Madras High Court in the case of Gayatri Agencies [2023 (3) TMI 873 - MADRAS HIGH COURT], under similar circumstances, and find that the interest of justice can be thus, met.

  In the result, without going into the merits of the case, I allow the appeal by way of remand to the original adjudicating authority, with a direction to decide the issue afresh, adhering to the principles of natural justice and following due process of law; it is also directed that issue may be decided, as far as it may be possible, within Sixteen (16) weeks of the receipt of this order.

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• 2025 (5) TMI 1756
  

  Demand of Service Tax on "Construction of Residential Complex" services and Under the classification of “Manpower Supply Agency Service”- demand along with interest and penalty - HELD THAT:- Coming to “Manpower Supply Agency Services”, the appellants have already paid Rs. 2,17,541/-. They are agreeing to pay balance amount of Rs. 6,27,895/-. We direct them to pay Rs. 6,27,895/- along with interest.

  We find that in terms of Board’s Circular No80/30/2004 dated 17/09/2004, which has been considered by various Tribunals and High Courts to hold that no Service Tax is required to be paid till 01/07/2010 on “Construction of Complex Services (Residential)”. On this ground itself, we set aside the confirmed demand of Rs. 16,57,583/- in respect of “Construction of Residential Complex”.

  It is being made clear that no refund whatsoever would accrue to the appellant on account of this decision.

  The appeal stands disposed of thus.

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• 2025 (5) TMI 1621
  

  Condonation of delay - COVID-19 pandemic - statutory period of limitation under Section 35(1) of the Central Excise Act, 1944 - no evidence brought on record regarding service of the Speed-Post - HELD THAT:- The Hon’ble Supreme Court had suo moto [2022 (1) TMI 385 - SC ORDER] issued an order for condoning the delay in filing of the appeal before various forums which should have been kept in mind by the Learned Commissioner (Appeals) while disposing of this appeal as not maintainable since that order of the Hon’ble Supreme Court is binding on all the Appellate Authority and courts.

  Thus, I find it appropriate to remand the matter to the learned Commissioner (Appeals) for decision on merits without further visiting the aspect of limitation. The Appellant-Assessee is directed to cooperate in the denovo proceedings and avoid taking unnecessary adjournments. All issues are kept open.

  The appeal filed by the Appellant is allowed by way of remand to learned Commissioner (Appeals)

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• 2025 (5) TMI 1620
  

  Demand along with interest and penalty - services rendered by a goods transport agency GTA - exigible to service tax under reverse charge as per section 68(2) of the Act read with Rule 2(1) (d) (B) (v) of the Service Tax Rules and Notification No. 30/2012-ST - HELD THAT:- The well-settled legal position is that to qualify as a GTA, one must issue a consignment note, by whatever name, called. The SCN alleged that the appellant had received GTA services but did not produce any evidence to show that RK Carriers had issued consignment notes. Both the OIO and the impugned order are completely silent on the question of issue of consignment notes. The assertion of the learned counsel was that RK Carriers never issued any consignment notes. The Agreement between the appellant and RK Carriers also does not provide for issue of any consignment notes. As per this Agreement, RK Carriers only had to submit running monthly bills for the work done during a month by the 7th of the next month and the appellant would pay the bills after necessary deductions.

  We find nothing on record to show that RK Carriers issued consignment notes and thus acted as a GTA. The services rendered by RK Carriers do not, therefore, fall under the reverse charge. The demand of service tax, interest and the consequential penalty, therefore, deserve to be set aside.

  The impugned order is set aside and the appeal is allowed with consequential relief to the appellant.

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• 2025 (5) TMI 1534
  

  Scope of mutual contract regarding reimbursement of service tax paid - Entitlement to reimbursement of service tax restricted to daily maintenance charges - pendente lite interest - delay for payment under VCES 2013 - Interpretation of the commercial contracts entered into between the parties - Plaintiff seeking to take advantage of its own default and made a claim for interest on the defendant on a specious plea that the defendant reimbursed the amount after a considerable lapse of time - HELD THAT:- Although the KoPT could not have insisted for the bank guarantee and indemnity bond cum undertaking as a condition precedent for release of the amount towards reimbursement, the correspondence made with the authorities concerned by the parties independent of each other would show that all of them have been seeking clarifications with regard to the requirement of submitting original discharge certificate in VCES-3. We do not agree with the learned single judge that the original discharge certificate was a pre-requisite for claiming reimbursement.

  The payment of the service tax through the Scheme of 2013 has complicated the issue as it requires a valid discharge certificate so as to absolve the service provider from all liabilities. We accept the submission on behalf of the plaintiff that the production of the challans conforms to Rule 9 (1) (bb) and Rule 9 (1) (e) of the Cenvat Credit Rules 2004 and as regards admissibility of Cenvat credit the said rules are to be followed.

  However, on consideration of the whole fact we cannot conclude that there has been an initial inexcusable neglect on the part of KoPT in releasing the amount. However, it cannot be denied that in view of the clarification of the Service Tax Authorities on 20th July, 2016 KoPT should have released the payment. The reimbursement was made on 10th March, 2017. We do not find any satisfactory reason for not releasing the amount immediately after 20th July, 2016.

  However, it cannot be denied that in view of the clarification of the Service Tax Authorities on 20th July, 2016 KoPT should have released the payment. The reimbursement was made on 10th March, 2017. We do not find any satisfactory reason for not releasing the amount immediately after 20th July, 2016.

  The contract does not stipulate payment of interest on account of delay. However, the commercial nature of the transaction cannot be disputed. It also cannot be disputed that the plaintiff had paid the service tax and the debit notes disclosed and marked as Exhibits during trial clearly show payment towards service tax by the plaintiff in terms of the agreement. Debit notes were marked as Exhibits without any objection. The defendant also does not dispute that service tax has been paid on the dates reflected from challans enclosed with the debit notes. The defendant has accepted the order passed by the learned Single Judge with regard to reimbursing a sum of Rs. 3,94,34,035/- against eight supplementary invoices raised by KoPT towards reimbursement of service tax. It was during the subsistence of the contract that the plaintiff availed of the Voluntary Compliance Encouragement Scheme 2013 and paid the service tax in terms of the scheme. The relevant circulars of the service tax department makes it clear that CENVAT Credit shall only be available after payment of entire service tax dues with interest if any and upon obtaining discharge certificate in Form of VCES-3 since the declaration made in the scheme becomes conclusive only on issuance of discharge certificate under Section 107 (7) of the VCES 2013..

  The plaintiff had made balance payment of Rs. 1,54,34,035/- under VCES and a further sum of Rs. 13,97,767/- on account of interest thereon. It was alleged by the plaintiff that the said interest had arisen solely due to the neglect and failure of the defendant to reimburse the first instalment of Rs. 2,40,00,000/- to the plaintiff on time.

  In view of the clarification of the service tax department on 20th July, 2016 the aforesaid amount was payable on the basis of the documents furnished. A timely payment would have saved the payment of interest. It is clear that the entire service tax liability has been cleared by the plaintiff and the defendant had also reimbursed the said service tax of Rs. 3,94,34,035/- simultaneously with the respondent making the payment of Rs.3.94 crores to the appellant. In compliance with this court’s order dated 24th July, 2017 the appellant had also handed over the original discharge certificate in Form-VCES-3 dated 16th April, 2015 issued by the Service Tax department.

  As is evident from the CENVAT registrar for the month of March, 2017 and also the service tax return for the period of October, 2016 to March, 2017 the respondent had successfully availed of the CENVAT credit. The refusal on the part of the defendant was an apprehension of whether KoPT would be entitled to take advantage of the CENVAT Credit on the basis of the documents submitted by the plaintiff. The plaintiff had also addressed such query to the Department of Service Tax. On such consideration we upturn the order passed by the learned Single Judge.

  We are of the view that the plaintiff, having regard to the facts and circumstances of the case and the disclosures made during the proceeding as also the order dated 24th February, 2017 in W.P No.948 of 2016 shall be entitled to a sum of Rs.26.42 lacs on account of interest on Rs. 3,94,34,035/- at the rate of 10% per annum. We have considered the communication dated 20th July, 2016 and the failure of the defendant to release such amount immediately thereafter in allowing interest. There is a delay of almost eight months in releasing the amount since clarification. In the event, the said sum is paid within two months from date it shall not carry any further interest, in default, the said sum shall carry interest at the rate of 10% per annum from the date of institution of the suit till payment.

  The suit is decreed accordingly.

  The appeal succeeds.

  The department is directed to draw up the decree as expeditiously as possible.

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• 2025 (5) TMI 1533
  

  Principles of natural justice - Rule of "Audi alteram partem" - Compliance with Statutory Provisions with respect to appeal are found in Sections 84 and 85 of the Finance Act, 1994 - discretion in granting adjournments and passing reasoned orders - challenging the non speaking order passed by the Assessing Authority - Validity of short notice given for the personal hearing via video conferencing - consideration received on account of rendering technical support and consultancy service to the overseas customers - fall within the connotation of “export of service” as envisaged under Rule 6A of the Service Tax Rules, 1994 - HELD THAT:- Conjoint reading of sub-section (3) of Section 84 and sub-section (5) of Section 85 of the Finance Act, 1994 read with Section 35(1A) of the Central Excise Act, 1944, it is manifest that the Appellate Authority is empowered to consider the petition for adjournment of hearing on being satisfied with respect to sufficient cause at any stage of hearing of appeal. However, as proviso to sub-section (1A) of Section 35 of the Central Excise Act, 1944, the Authority can grant not more than three adjournments to a party during the hearing of the appeal. In the present case after service of copy appeal petition, on two occasions with short notice the petitioner was directed to appear for hearing.

  It is trite that without disposing of petition for adjournment, the Appellate Authority could not have proceeded to pass order finally disposing of the appeal. There was no refutal by the Senior Standing Counsel with respect to genuineness of submission of the lawyer against the factual details contained in the petition for adjournment. This Court, thus, finds the submission of Sri Chittaranjan Das, learned Advocate as genuine and plausible.

  It is by now a well-settled proposition in law that the Appellate Authority while deciding the appeal is duty bound to consider the grounds of challenge. The Appellate Authority is also required to pass a reasoned and speaking order considering and dealing with those grounds. The impugned Order in the instant case, which is the order passed by the Appellate Authority, seems to be more of an administrative order than that of an Appellate Order passed by a quasi judicial Authority sitting in appeal in seisin of grounds taken by the Revenue.

  In the opinion of this Court, the Appeal has not been justifiably decided and therefore the same deserves to be remitted to the Appellate Authority for passing a reasoned and speaking order dealing with the grounds raised in the Appeal challenging the order passed by the Assessing Authority.

  With the enunciation of principles of audi alteram partem with reference to prayers made for adjournments, and legal position surfaced through different judicial pronouncements with respect to significance of passing of reasoned order, it is perceived that the Appellate Authority has failed to discuss the fact and the law with respect to each ground taken in the appeal petition of the Revenue.

  Since the appeal order does not emanate reason for the conclusion, this Court is constrained to observe that absence of reason in the Appellate Order do tantamount to negating the purpose of hearing in appeal and right to know the reason as to why the view expressed in Order-in-Original has been reversed and viewed as flawed. Furthermore, short notice fixing date of personal hearing and/or hearing through video conferencing mode added to consider sustainability of Appellate Order.

  Though this Court is conscious about existence of alternative remedy to assail the Appellate Order, having regard to the material on record and taking note of undisputed factual position as emanated from the submissions advanced by the counsel for both the parties, finding that there is violation of basic tenets of natural justice and assignment of reason, much less plausible, this Court entertained this writ petition.

  Having thus entertained the writ petition, it is to impress upon that reasons as soul of the decision, the exercise of discretion by the Appellate Authority demonstrated non-application of mind inasmuch as the Appellate Order revealed mere affirmation of view expressed in the Review Order against the Order-in-Original. Thus, proper and sufficient opportunity being not afforded to the petitioner and/or its representative and the impugned Order dated 24.02.2025 sans reason, the same becomes vulnerable and liable to be impeached. Therefore, the Appellate Order is liable to be set aside.

  The Order-in-Appeal Nos.313-323/ST/RKL-GST/2024, dated 24.02.2025 passed by the Commissioner (Appeals), Goods and Service Tax, Central Excise & Customs, Bhubaneswar-opposite party No. 1 is hereby set aside and the matter is remitted to the said Authority for consideration of appeal on its merits afresh.

  For availing opportunity of hearing, the petitioner is directed to appear before the Appellate Authority not later than 16.05.2025 with the copy of this Order.

  It is clarified that this Court has not expressed any view or opinion on the merit of the appeal. The facts narrated and the observations made herein are for the purpose of considering the aspect of adherence to the principles of natural justice.

  As a result writ petition, disposed of.

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• 2025 (5) TMI 1532
  

  Difference in the value of service declared in ST-3 returns and Form 26AS (TDS statement) - taxability of services - Works Contract Service and Consultancy Service - demand raised on the basis of figures reflecting in Form 26AS and penalty under Section 78 of the Finance Act, 1994 - exemption from Service Tax in terms of clause (e) of Sl. No.12 of Notification No.25/2012-ST - HELD TAHT:- The Appellant has submitted that during F.Y. 2016-17 the Appellant had been given sub-contract by M/s JMC Project India Ltd., Plot No. B-21, Sector-58, Noida for providing and installing temporary earth retaining structure with soil nailing with insertion of nails in all strata for the soil including fixing wire nesh on exposed excavated surface, bearing plates, nuts, PVC drainage pipes, shotcrete etc. The said work relates to installing of drainage system in connection with sewerage treatment or disposal pertaining to Supreme Court, Additional Office Complex, Pragati Maidan, New Delhi. The award was for Rs.2,82,40,000/-. During F.Y. 2016-17, the Appellant provided services in terms of said contract for an amount of Rs.36,36,586/-. The Service Tax involved on such value of services was worked out to be Rs.2,18,195/-. The said service was exempt from Service Tax in terms of clause (e) of Sl. No.12 of Notification No.25/2012-ST dated 20.6.2012. As per clause (h) of Sl.No.29 of the said Notification, sub-contractor of Works Contract was also exempt from Service Tax if main contractor was exempt from Service Tax. Thus, the demand of Rs.2,18,195/- is liable to be dropped. The Service Tax payable during 2016-17 is Rs.1,09,50,292/- (Rs.1,11,68,487/- Rs.2,18,195/-).

  The Appellant has deposited Rs.66,02,978/- in cash and Rs.10,41,790/- by adjusting through Cenvat during F.Y. 2015-16 and Rs.30,92,779/- in cash and Rs.36,27,094/- by adjusting through Cenvat for the F.Y. 2016-17. Total Service Tax deposited was Rs.1,43,64,641/- before issuance of the SCN. The Cenvat credit claimed by the Appellant for the period from October, 2015 to March, 2017 was rejected by the Adjudicating Officer simply on the ground that ST-3 returns were not filed. It is noticed that manner of availment of Cenvat credit of duties or service tax paid on inputs and input services is provided under Rule 9 (5)(6) of the Cenvat Credit Rules, 2004.

  The above provisions make it absolutely clear that Cenvat credit is taken by way of maintaining record, not on the basis of filing of ST-3 returns. We therefore do not find any reason to reject eligible Cenvat Credit to the Appellant. There is no short payment of Service Tax during F.Y. 2015-16 and 2016-17.

  As regards penalty under Section 78 of the Finance Act, 1994, it is found that the same is imposable equal to the amount of Service Tax short paid or not paid. As there is no short payment of Service Tax, no penalty is imposable under Section 78 of the Finance Act, 1994.

  We further find that services rendered by the Appellant namely Works Contract Service and Engineering Consultancy Service were declared taxable services under wrong provisions. Hence, the impugned order is not maintainable on the said count also.

  Thus, we are of the considered view that 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 1531
  

  Classification of service - tour operator services - activity carried out by the Appellant up to 31.06.2012 in assisting of Haj Pilgrims - HELD THAT:- The Tribunal has considered the issue in the matter of M/s AL-Hussain India Hajj & Umrah Services Management [2016 (7) TMI 1715 - SC ORDER] wherein it is the held that 'The appellant is engaged in providing services in connection with religious trips Hajj and Umrah mainly to Mecca, Madina, Mina, Muzdalifa etc. Both the sides agree that the issue involved in the present appeals has been considered by this Tribunal in the case of M/s. Cox & Kings India Ltd. & Others v. Commissioner of Service Tax, New Delhi [2017 (4) TMI 852 - CESTAT MUMBAI] The Tribunal had decided the issue in favour of the appellant. Following the precedent decision of the Tribunal, these appeals are also allowed with consequential relief, if any.'

  Conclusion - Assistance in performing religious rites related to Haj and Umrah is not taxable as 'tour operator' service under the Finance Act, 1994 prior to 01.07.2012.

  Appeal allowed.

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• 2025 (5) TMI 1530
  

  Non/short-payment of service tax - Preferential Location or External or Internal Development of Complex Service - Club Construction cost received by Appellant under the head ‘’Club or Association Service’ - difference in tax payable on receipt basis and as per the Point of Taxation Rules, 2011 [POT Rules, 2011] - cash recovered which was allegedly collected from customers over and above the Agreement cost - tax collected from customers on account of cancelled bookings of flats which was not refunded - Burden of proving the taxability.

  Demand of service tax of Rs.52,43,416/- under the head ‘Preferential Location or External or Internal Development of Complex Service’ on the amount of advances received from the prospective buyers - HELD THAT:- In the present case, on perusal of the agreements with buyers provided by the Appellant, we observe that the entire services provided by the Appellant form a single transaction. A single Agreement was done for the sale of flats/units, and preferential location charges (if any) were a part of the cost of such unit. No separate charges were collected for the preferential location distinct from the original agreement. Similarly, the preferential location was a part of the transaction of construction service, and no separate service was provided over and above the Agreement.

  The fact that such PLC was separately mentioned in the bifurcation of cost provided to customer is immaterial. A bifurcation of cost by its very definition refers to a breakdown of the entire cost based on various elements. It does not imply that such costs were separate and in addition to the original agreement cost. Therefore, the Adjudicating Authority has erred in holding that the Appellants were providing a separate service under the head of ‘Preferential Location or External or Internal Development of Complex Service’.

  Reliance is placed on the Order of this Bench in the case of M/s SJP Infracon Limited Vs. Commissioner of Central Excise & Service Tax, Noida [2018 (12) TMI 253 - CESTAT ALLAHABAD] in this respect, wherein it was held that amounts like preferential location charges included in the total construction cost are to be considered as a bundled service of construction and cannot be held to be taxable under separate heads for the sake of disallowing benefit of abatement to taxpayers.

  The demand of service tax of Rs.52,43,416/- confirmed in the impugned Order under the head of ‘Preferential Location or External or Internal Development of Complex Service’ set aside.

  Demand of service tax of Rs.11,27,850/- under the head ‘Club or Association Service’ on the allegation that the Appellant collected Club membership fees from their customers - HELD THAT:- In the present case, the Appellant is collecting an amount of Rs.50,000/- from its buyers towards cost of construction of club and associated facilities. We find that since no club or association is in existence in the relevant period, the question of any service being provided by a club or association does not even arise. The concerned amount is merely a cost of construction, which will naturally be a part of the taxable value of construction services provided by the Appellant. Consequently, the Appellant would be entitled to avail the benefit of abatement as provided under Notification No.01/2006 dated 01.03.2006 and Notification No.26/2012 dated 20.06.2012.

  There are no merit in the contention of the Adjudicating Authority stating that such club construction cost is nothing more than club membership fees. Since the club is not even in existence, such demand based on an assumption without any basis is bad in law - the demand of Rs.11,27,850/- confirmed in the impugned Order under the head of ‘Club or Association Service’ set aside.

  Demand of service tax of Rs.25,65,993/- based on the POT Rules, 2011 - HELD THAT:- The Adjudicating Authority has disregarded the payment of tax and interest by the Appellant in favour of unilaterally confirming demand under the Point of taxation Rules. We do not find any merit in this approach. The Point of Taxation Rules is a procedural requirement, the final aim of which is to ensure timely and correct payment of tax. Since tax has been eventually and correctly paid by the Appellant, and interest has been deposited in lieu of any late payment, there are no reason to sustain the demand. Such demand would amount to double taxation and hence cannot be sustained.

  The learned Authorized Representative of the Appellant has referred to an Order of this Bench in the case of M/s Ganpati Infrastructure Development Company Ltd. Vs. Commissioner of Central Excise & Service Tax, Agra [2024 (7) TMI 1636 - CESTAT ALLAHABAD], wherein it was held that where payment of service tax has been made on receipt basis, demanding service tax on due basis again would amount to double taxation. In such case, the taxpayers would only be liable to pay interest from the due date as determined under the POT Rules, 2011.

  The above Order squarely applies to the present case and there are no reasons to deviate from the same. Accordingly, the demand of Rs.25,65,993/- is set aside.

  Demand of service tax of Rs.24,40,589/- on cash receipts alleged to have been received by the Appellant form its buyers over and above the Agreement cost - HELD THAT:- It is the minimum requirement to prove the above mentioned aspects for there to be a basis chain of events which may potentially indicate clandestine removal by Appellant. However, no evidence has been brought on record by Revenue. It is noted that no cross-verification has been done by the Revenue with the buyers to determine whether any cash was paid by them to the Appellant. There are no merit in the Adjudicating Authority’s contention that since no evidence has been brought on by Appellant; such entries refer to cash received for clandestine removal. Tax payer cannot be expected to provide justification for any loose sheet of paper which is not a part of its books of account in absence of any credible evidence supporting the legitimacy of such paper. The Adjudicating Authority has failed to establish even a proper reasoned chain of events based on any evidence which may lead to a believable probability of receiving cash in excess of agreement. Accordingly, the allegation of receiving cash by Appellant over and above the agreement cannot be sustained. Thus, the demand of Rs.24,40,589/- confirmed in impugned Order set aside.

  Demand of Rs.59,085/-based on the allegation that such amount pertains to service tax collected by the Appellant from its customers which retained in cases of transferred/cancelled bookings and was neither refunded o the customers nor paid to the Government - HELD THAT:- No explanation or reasoning has been provided with respect to this issue in the appeal memo. It is observed that Appellant in its Additional Submission has accepted such demand and has stated that such amount along with applicable interest has already been paid. A copy of Challan has been brought on record before us in this regard - such payment made be adjusted towards the same. Thus, the demand confirmed is set aside.

  Burden of proving the taxability - HELD THAT:- Throughout the impugned Order, the Adjudicating Authority has denied the Appellant’s contentions and confirmed demand based on an alleged lack of evidence. Irrespective of the un-sustainability of the demand as discusses in the above paragraphs, the burden of proving the taxability was on the Revenue and the same has not been discharged. No documentary evidence has been brought on record by the Revenue to support its allegations.

  The Tribunal set aside all confirmed demands of service tax, interest, and penalties arising from the impugned Order-in-Original - appeal allowed.

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• 2025 (5) TMI 1455
  

  Delay in passing the order - compliance with time limitation prescribed under Section 73(4B) of the Finance Act, 1994 for passing the order - Non-payment of service tax - contravention of the provisions of Sections 67, 68 and 70 of the Act of 1994 read with Rules 6 and 7 of the Service Tax Rules, 1994 - Reverse Charge Mechanism - non-filing of ST-3 Returns - failure to produce document called for by the Department - services to clients of “Erection Commissioning and Installation Service” - HELD THAT:- This Court has taken a view that whether it was possible to determine the service tax within the period of one year or not is required to be determined in the facts of the case.

  Since we have noticed from the records that there was no movement at all of the file for two years and the matter remained pending at the end of the taxing authority, there being no reason shown that it was not possible to determine the liability of the petitioner within the period of one year, we are of the considered opinion that the present case would be covered by the judgments of this Court as discussed hereinabove.

  This Court, therefore, sets aside the Order-in-Original No. 41/ST/Aayukt/2024 dated 24.06.2024 (Annexure ‘P2’) and the consequent demands raised against the petitioner.

  While parting with this case, this Court must place on record it’s concern for the manner in which the case was kept pending without any movement of file for more than two years. What went wrong on the part of the Department is required to be looked into by the Principal Commissioner of CGST and CX (Respondent No. 2).

  The Respondent No. 2 is expected to look into the failure which has taken place in this matter, even as this Court has been coming across several matters in which similar situation exist. What action may be taken by Respondent No. 2 is left to his wisdom.

  This writ application is allowed.

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• 2025 (5) TMI 1454
  

  Rate of tax or valuation of services - work contract services - monetary limits prescribed under the second proviso to Section 35B(1) of the Central Excise Act, 1944, read with Section 86(7) of the Finance Act, 1994 - HELD THAT:- Total amount of service involved in the present appeal as per the appellant himself is Rs.66,287/-. As per the appellant penalty is also Rs 82,954/-. As the total amount involved in the present appeal is less than Rs.2 lakhs, and as per the appellant own declaration on appeal memo issue involved is other than question relating to rate of tax or valuation, I do not find that appeal need be admitted by tribunal or to be maintainable before this Tribunal in terms of second proviso to Section 35B (1) of Central Excise ACT, 1944 read with Section 86 (7) of the Finance Act, 1994 . Moreover there is no issue of rate of taxation or valuation of services involved in the present case.

  Appeal is dismissed as not admitted.

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• 2025 (5) TMI 1453
  

  Service tax liability on their income of brokerage - Payment of service tax payable on certain payments/charges received from their clients - cum tax benefit - demand along with interest and the penalties - HELD THAT:- Once the amount is held to be in the nature of penal charges, we observe that the decision of this Tribunal in South Eastern Coalfields Limited [2020 (12) TMI 912 - CESTAT NEW DELHI] which has been affirmed by Hon’ble Apex Court in the case of Commissioner of Central Excise and Service Tax Vs. South Eastern Coalfields Ltd.- [2023 (8) TMI 606 - SC ORDER] squarely covers the present dispute. The DPC are not taxable as these charges are not an amount towards rendering service.

  Since the issue arising out of the impugned order stands already settled and decided in favour of the assessee, the issue is no more res integra. Also we do not find any reason to differ from those findings. Hence the order under challenge is set aside. Consequent thereto, the appeal is allowed.

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• 2025 (5) TMI 1371
  

  Place of Supply - Intermediary services related to goods - Design and development services - Business support services - Place of Provisions of Services Rules, 2012 ( POPS) - Export of service or not - HELD THAT:- In relation to the intermediary services in relation to goods for the period from 01.04.2014 to 30.09.2014, the definition of the term “Intermediary” under Rule 2(f) of the POPS Rules, 2012 has changed. Going through the amendments in the definition of the term “intermediary” and relying upon the judgments in the cases of Chevron Phillips Chemicals India Pvt. Ltd.[2019 (12) TMI 1066 - CESTAT MUMBAI] and Viavi Solutions India Pvt. Ltd. [2024 (6) TMI 187 - CESTAT CHANDIGARH], I hold that intermediary services in relation to goods became taxable with effect from 01.10.2014 by virtue of amendment in the definition of the term “intermediary” in Rule 2(f) of the POPS Rules, 2012 vide Notification No.14/2014-ST dated 11.11.2014 with effect from 01.10.2014.

  In relation to design and development services, looking at the process of providing these services and the fact that no third party is involved, I further hold that the Appellant is not providing “Intermediary Services”“, and place of provision shall be the location of recipient of service, which is outside India. Since all the clauses of Rule 6A of the Service Tax Rules are satisfied, design services will be considered as export of service.

  So far as invoking of extended period of limitation, audit of the Appellant was concluded on 30.01.2020; the Appellant already furnished the details of design and intermediary services provided during the years 2014-15 to 2016-17; the Appellant voluntary obtained service tax registration with effect from 01.10.2014 and started paying service tax on intermediary services; hence I do not find any ingredient of suppression of facts or any willful misstatement or fraud or collusion or contravention of the provisions of the Act or of the Rules made thereunder with an intent to evade payment of service tax.

  Demand set aside.

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• 2025 (5) TMI 1370
  

  Application seeking rectification of mistake - Scope and limits of rectification powers of the Tribunal in relation to errors apparent on record - typographical error regarding the date mentioned in the final order - Whether non-consideration of a decision can be said to be a mistake apparent on record - HELD THAT:- We observe that the issue stands decided by Hon’ble Apex Court in Assistant Commissioner of Income Tax Vs. Saurashtra Kutch Stock Exchange Ltd.- [2008 (9) TMI 11 - SUPREME COURT], wherein it has been held that the non-consideration of a decision is a mistake which can be set to be a “mistake apparent from the record” which could be rectified.

  In light of above decisions and perusing that both the decisions as referred in the application were submitted by the appellant additionally on 11.12.2023. However, the final order has no mention about those decisions. Both the decisions need to be referred and discussed in the present judgment.

  In the light of above discussion following is the conclusion:

  (1) Two case laws have been incorporated in para 5 of the Final Order No. 56012 of 2024 dated 10.07.2024;

  (2) Para 21(A) is added in the said final order incorporating the discussion about two decisions referred by the appellant however with the finding about non-applicability thereof to the fact and circumstances of the present case;

  (3) Date of final order is 10.07.2024, hence the same is not an error as alleged. The date may be checked in the uploaded order and if required the needful be done by the registry in terms of this order with reference to the application of the appellant seeking correction of date.

  As a result the present application is allowed partly.

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• 2025 (5) TMI 1369
  

  Levy of service tax - nature of activity - service or not - incentives, discounts, or reimbursements extended by a motor vehicle manufacturer to its authorized dealer under a principal-to-principal dealership agreement - HELD THAT:- The Larger Bench of this Tribunal in the case of Kafila Hospitality and Travels Pvt. Ltd. [2021 (3) TMI 773 - CESTAT NEW DELHI (LB)] dealt with the issue whether service tax can be levied under the category of “Business Auxiliary Service” on target based incentives paid to the travel agents by the Airlines as they were promoting and marketing the business of the Airlines. The Tribunal took the view that it is not a case where the air travel agent is promoting the service of the Airlines rather by sale of airlines ticket he was ensuring the promotion of its own business even though this may lead to incidental promotion of the business of the Airlines. On the issue, whether “incentive” paid for achieving target are taxable, the Tribunal analysed the scope of the term “incentives” that they are generally given to encourage performance of the party.

  On examining the dealership agreement entered between MSIL and the appellant, it is found that MSIL is engaged in manufacturing, marketing and selling of motor vehicles and the appellant purchases the vehicles from the manufacturer as their authorised dealer. The relationship between the appellant and MSIL is only of buyer and seller and sale-purchase have taken place on principal to principal basis.

  The activity undertaken by the appellant is for the sale and purchase of the vehicle and the incentives are in the nature of trade discounts. The incentives, therefore form part of the sale price of the vehicles and have no correlation with the services to be rendered by the appellant. That in terms of the dealership agreement, the appellant purchases the vehicles from MSIL and sells the same to its end customers. The activity of promoting the sale is with respect to the vehicles owned by the appellant which incidentally is in interest of both the parties - the appellant is engaged in the onward sale of vehicles which involves merely transfer of property in goods which is excluded from the definition of “service”. That Section 66D of the Finance Act, 1994 contains the negative list of services under various clauses and clause (e) provides for “trading of goods”. On this ground also it is found that incentives which are part of sale activity are not exigible to service tax.

  Conclusion - The amount of incentives and discounts cannot be treated as consideration for any service and therefore no Service Tax is leviable thereon.

  The impugned order is, therefore, set aside and the appeals, are allowed.

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• 2025 (5) TMI 1368
  

  Validity of show cause notice issued beyond the period stipulated in the proviso to section 73(1) of the Finance Act 1994 [the Finance Act] - suppression of facts with an intent to evade payment of service tax - Extension of period of limitation - service tax proposed under the three heads namely “rent-a-cab service”, “renting of immovable property” and luggage booking under “business support service” - HELD THAT:- In the present case, as noticed, all that has been stated in paragraphs 9 and 12 of the show cause notice is that the appellant received an amount for the period 2008-09 to 2011-12 for the three taxable services and since the appellant did not provide the required documents it suppressed facts from the department with intent to evade payment of service tax. Though the appellant specifically denied that any facts had been suppressed, much less with an intention to evade payment of service tax, the Joint Commissioner merely observed that the fact of providing taxable service would not have come to the notice of the department had investigation not been initiated by the department and it is for this reason that the Joint Commissioner held that the appellant had willfully suppressed material facts from the department with intent to evade payment of service tax. The Commissioner (Appeals) held that there was no infirmity with the issue of demand as the period of demand was within five years.

  It cannot be alleged by the department that facts were not in the knowledge of the department since earlier also a show cause notice dated 01.10.2009 had been issued by the department to the appellant for the period from 2004-05 to March 2008 proposing demand under the same heads as in the present appeal. There is, therefore, no reason as to why the show cause notice should have been issued beyond the normal period of limitation for the period from April 2012 to March 2013, nor there is any justification for issuing the show cause notice dated 22.10.2014 for the subsequent period from April 2013 to March 2014. It is, therefore, clearly a case where the facts were in the knowledge of the department and the department cannot allege that facts had been suppressed.

  In any case, even if it is assumed that facts were suppressed by the appellant then too no reason has been assigned in the orders passed by the Joint Commissioner or the Commissioner (Appeals) that such suppression was with an intent to evade payment of service tax. This apart, service tax has been demanded on the basis of profit and loss account and balance sheet, which are public documents which the department could have ascertained. The issue involved in this appeal also relates to interpretation of law. The decisions referred to above have clearly held that in such circumstances there can be no suppression of facts with an intent to evade payment of service tax.

  The impugned orders dated 16.11.2016 and 17.08.2017 passed by the Commissioner (Appeals), therefore, deserve to be set aside on the sole ground that the extended period of limitation contemplated under the proviso to section 73 (1) of the Finance Act could not have been invoked in the facts and circumstances of the case.

  The orders dated 16.11.2016 and 17.08.2017 passed by the Commissioner (Appeals) are, therefore, set aside and the two appeals are allowed with consequential relief(s), if any, to the appellant.

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• 2025 (5) TMI 1284
  

  Time limitation - Levy of service tax - transportation charges borne by the appellants and reflected in their Profit & Loss accounts - the consignment agents had paid the freight and discharged the service tax liability on such freight amounts - Cenvat Credit on the service tax paid on GTA (Goods Transport Agency) services by their consignment agents - HELD THAT:- Appellant were subjected to regular audits even previously and all the records were made available as is evident from final audit reports of dates 15.03.2012 and 08.03.2013. They were filing returns regularly and the department was well aware about the facts of the transportation charges not paid by the appellants and that all the information for the purposes of present show cause notices has been found out from their records only and nothing in any case was concealed. They have relied on various case laws including of MTR Foods Ltd. [2010 (10) TMI 994 - CESTAT BANGALORE], SDL Auto Pvt Ltd [2013 (8) TMI 425 - CESTAT NEW DELHI], Trans Engineers India Pvt Ltd [2015 (9) TMI 787 - CESTAT MUMBAI] for their purpose. That all facts and figures and transactions were duly reflected in their ledger accounts as well as balance sheets for the relevant year, and were called out from their available documents only.

  The extended of limitation cannot be applied. Even on merits, it is not denied that the consignment agent(s) to whom they were the principal had paid the amount of freight and since, under Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, the service tax can be paid either by the person who is liable to pay freight or through his agent. In the instant case, service tax as per law was paid by the consignment agent (who had paid freight on behalf of the appellant) which was later on claimed from the appellant who showed in his books as expense. It is not disputed that the consignment agent(s) had paid the service tax in the case and therefore, there was no loss of Revenue to the Government.

  Cenvat Credit on the service tax paid on GTA (Goods Transport Agency) services by their consignment agents - HELD THAT:- The lower authority has confirmed demand on the ground that the appellant has not produced eligible documents. Vide written submission dated 14.05.2025, the learned Advocate has produced copy of ST-3 returns of one of their Consignment Agent M/s Yashoda Traders to show that the Consignment(s) have not taken the Cenvat credit. Still, the appellant has to produce valid/eligible documents for availing Cenvat credit as required under Rule 9 of the Service Tax Rules - It is deemed fit to remit this matter to the adjudicating authority with liberty to the appellant to produce eligible/valid documents justifying availment of Cenvat credit. The learned Adjudicating authority will decide the matter after verifying the documents and pass reasoned order within three months from the date of receipt of this order. Needles to say, the appellant shall produce eligible documents before the said authority within one month.

  Conclusion - i) Service Tax on GTA Services are required to be paid by the person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in goods carriage. ii) Since all the facts and information were available to the officers of the department, there is no question of suppression of any information from the department and, therefore, it can be safely concluded that there is no suppression of facts with intent to evade payment of service tax in the instant case and hence, the proviso to Section 73(1) of the Finance Act, 1994 relating to extended period cannot be invoked in this case. iii) Cenvat credit can even be availed on mentions challan evidencing payment of service tax by the service recipient,". The appellant must produce eligible documents for verification by the adjudicating authority.

  Appeal disposed off.

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• 2025 (5) TMI 1283
  

  Liability to pay service tax - Commercial or Industrial construction service - Appellant who had carried out works contracts is liable to pay service tax or not - HELD THAT:- The new category of 'works contract service' was introduced w.e.f. 01.06.2007 with an intent to tax service element in the works contract.

  Following the ratio of the judgment in CCE, Kerala VS Larsen & Toubro Ltd [2015 (8) TMI 749 - SUPREME COURT], service provided in relation to execution of a "Works Contract" is liable to service tax only from 01.06.2007. It is found that appellant was paying service tax from 1.6.2007 to 31.03.2009 under Works contract service and the demand as per impugned order confirmed service tax for said period also under the category of “Commercial or Industrial construction service”. For the period up to 01.06.2007, the appellant is not liable for payment of service tax for the execution of works contract following the ratio of the judgment of the Hon'ble High Court in the matter of the Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT]. Further, for the period 01.06.2007 to 31.03.2009 the appellant has paid service tax under 'works contract service'. Therefore, the confirmation of entire demand of service tax for the period 10.09.2004 to 31.03.2009 under the category of “Commercial or Industrial construction service” is unsustainable, hence the impugned order is set aside.

  Conclusion - The service tax liability on works contracts is governed by the introduction of the 'Works Contract Service' category effective 01.06.2007, and prior to this date, no service tax is leviable on such contracts under the 'Commercial or Industrial construction service' category.

  Appeal allowed.

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• 2025 (5) TMI 1228
  

  Maintainability of second SCN - Issuance of second SCN invoking extended period of limitation - a prior show cause notice had already been issued for an overlapping period under extended limitation - HELD THAT:- The present show cause notice dated 24.08.2015 issued to the appellant again invokes extended period of limitation for demanding service tax for the period 2010-11 to 2013-14 which is not sustainable.

  The show cause notice dated 23.04.2012 issued after investigation covered the period up to 10th August 2010. They issued the summons on 18.07.2014 for getting the figures for the balance period of 2010-11 to 2013-14. The officers have shown lethargic attitude even in seeking the figures for the subsequent period for raising the demand as they took almost 2 years from the date of first show cause notice to issue summons. They cannot be allowed to hide lethargic attitude under the guise of extended period of limitation. It is agreed with the contention of the appellant that once show cause notice has been issued invoking extended period of limitation, subsequent show cause notice cannot be issued by invoking larger period. Therefore, demand for the larger period does not survive.

  On merits, it is seen that the appellant have given services to either Government or Governmental authorities and therefore, they are entitled to the benefit of relevant notification subject to fulfilment of specified conditions. The contention of the appellant regarding extending the benefit of threshold exemption and cum duty benefit also agreed upon. It is deemed fit to remit the matter to the adjudicating authority for re-determination of demand keeping the above directions in view, if any, for the normal period.

  Conclusion - The demand based on the second show cause notice invoking extended limitation is quashed. The appellant's services to government authorities are recognized as exempt from Service Tax under the relevant provisions and judicial precedents.

  Appeal disposed off by way of remand.

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• 2025 (5) TMI 1227
  

  Levy of of service tax - affiliation fees charged by the appellant from the educational institutions /colleges - benefit of SSI exemption on renting of immovable property service as the aggregate value of such rental services does not exceed ₹10 lakhs in a particular financial year - HELD THAT:- Both the issues have been decided in favour of the appellant by the Tribunal in the case of M/s Jiwaji Vishwavidhyalaya versus Commissioner, CGST & CE, Bhopal [2025 (5) TMI 153 - CESTAT NEW DELHI] . On the first issue of affiliation fees, the Tribunal has relied on the decision of the Karnataka High Court in Rajiv Gandhi University of Health Sciences, Karnataka [2022 (8) TMI 707 - KARNATAKA HIGH COURT] where it has been held that the act of University in granting affiliation to a private college has to be considered as a service in furtherance of providing education and the decision of the respondents to consider otherwise is erroneous. The view taken by the High Court is concurred upon and the same is squarely applicable to the controversy in the present case.

  Activity of Renting of Immovable Property Service - HELD THAT:- It is found that both the, Hon’ble High Court of Karnataka in the case of Rajeev Gandhi University of Health Sciences [2022 (8) TMI 707 - KARNATAKA HIGH COURT] followed by the Tribunal in the case of M/s. Jiwaji Vishwavidhyalaya [2025 (5) TMI 153 - CESTAT NEW DELHI] has held that Notification No. 33/2012-ST dated 20.06.2012 prescribes exemption from payment of tax if the amount received in the previous Financial Year is less than the threshold limit of Rs. 10 lakhs. On this principle, the Commissioner (Appeals) have categorically recorded the finding that the aggregate value of such rental services does not exceed Rs. 10 lakhs in a particular one financial year and therefore, the appellant is entitled to the benefit of SSI exemption. Consequently, they are not liable to pay any service tax on such service.

  Conclusion - The demand for service tax on affiliation fees is unsustainable and that the appellant qualifies for exemption on renting of immovable property services under the SSI threshold.

  Appeal dismissed.

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