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Service Tax - Case Laws
Showing 41 to 60 of 181 Records
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2018 (1) TMI 1215 - CESTAT CHENNAI
CENVAT credit - input services - rent-a-cab operator service - health club and fitness centre service - internet cafi service - dry cleaning service - Held that: - Rule 6 (5) as it stood during the relevant period states that credit is eligible on the services specified therein, if such services are not used exclusively for exempted services. Even if we consider that prior to 01.05.2011, the output services of short term accommodation services and restaurant services were not taxable services, the appellants were rendering other taxable services like health club and fitness service, internet cafi service etc. Since the services specified in Rule 6 (5) were not used by the appellant exclusively for non-taxable services, the appellants are eligible for the credit.
Abatement under N/N. 1/2006-ST - Held that: - The N/N. 1/2006-ST does not say that assessee cannot avail any credit at all. The condition is that the abatement would be available only if input service credit is not availed on input services used for providing such services specified in column 2 of the notification - In the case of Bharat Heavy Electrical Ltd. Vs. CCE, Nagpur [2012 (4) TMI 197 - CESTAT, MUMBAI], the Tribunal had occasion to analyse a similar issue with regard to availability of abatement and held that there is no stipulation in the notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contract.
Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1214 - CESTAT CHENNAI
CENVAT credit - input services - Real Estate Agency Service - Rent-a-Cab Service - Insurance (Mediclaim Policy) Service - appellant case is that the disputed services have been availed by the appellant prior to 1.4.2011 and the invoices were also raised prior to 1.4.2011 whereas the department however has issued SCN for the period after 1.4.2011 also - Held that: - In the Master circular dt. 29.4.2011, the Board has clarified that if the services are availed prior to 1.4.2011 then even if the credit is availed later, the appellant would be eligible for the same - it is deemed fit that the matter be remanded to the original authority who shall consider the question whether appellant has availed the services prior to 1.4.2011 and also to consider the eligibility of master circular - appeal allowed by way of remand.
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2018 (1) TMI 1213 - CESTAT CHENNAI
Reverse Charge Mechanism - appellants had availed services of Underwriters - case of Revenue is that Since the services have been received by the appellants and from underwriters located outside India, the appellants are very much liable for tax liability - Held that: - the scope and extent of service tax chargeability on reverse charge basis for different services has been treated differently only in sub-rule (iii) of Rule 3 of the Rules. For Underwriting Services to be taxed at the hands of the person located in India, the services definitely have to be performed fully or partly in India. This is certainly not the case here. In fact, the Underwriting Agreement dated 18-06-2007 makes it clear that the ADS offering is not applicable for sale in India, but only to other select jurisdictions like the United States of America, Canada, Japan etc. - the impugned services availed of by the appellant not having been performed partly or wholly in India, will not bring forth the requirement of taxability on the appellant on reverse charge basis under Rule 66A of the Finance Act, 1994 read with the Taxation of Services (Provided from outside India Received in India) Rules 2006.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1205 - CESTAT CHENNAI
Commercial coaching or commercial training services - appellant which is a proprietorship concern has branches in various places in Tamilnadu and is a training centre for communicative English, Personality Enhancement, IELTS and TOEFL - main defence raised by the appellant is that their institute is a vocational training institute - benefit of N/N. 24/2004-ST - Held that: - The exemption N/N. 24/2004-ST is available to the institutes that impart training to enable the trainee to seek employment or self-employment directly after such training or coaching - In Maria Computer Systems Pvt. Ltd.[2017 (1) TMI 37 - CESTAT NEW DELHI], the Tribunal observed that coaching/training imparted for acquiring skills in English language definitely improves better chances to seek employment.
The appellant is eligible for the exemption as per the N/N. 24/2004-ST - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1176 - MADRAS HIGH COURT
100% EOU - Refund of unutilized CENVAT credit - denial on the ground that registration not done - N/N. 05/2006-CE(NT) dated 14.03.2006 - Held that: - reliance placed in the case of M/s.mPortal India Wireless Solutions Private Limited V. Commissioner of Service Tax, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], where it was held that Registration not compulsory for refund - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1175 - CESTAT NEW DELHI
Refund of service tax - export of service - arrangement involved in the transfer of money from a customer located abroad to an Indian recipient - Held that: - The tax liability of such services has been a subject matter of various decisions by the Tribunal. Dealing with one of the agents of the appellant engaged in transfer of money from abroad to a person in India, the Tribunal in the case of Wall Street Finance Ltd. [2014 (10) TMI 312 - CESTAT MUMBAI] has held that At the relevant time, there were no specific rules to determine the place of provision of service in service tax law. However, with effect from 20/06/2012 a specific Rule has been prescribed called Place of Provision of Service Rules, 2012. Though these Rules are only prospective in nature, the provisions of these Rules can be gainfully used to understand the concept of place of provision.
In the present case, the Department of Post is rendering service to the appellant by executing the remittance of foreign exchange to the intended recipient in India. For this, they are receiving the considerations from the appellant. The services are availed by the appellant, who is a foreign based entity. This is to be considered as export of service as held by the Tribunal in various cases.
Unjust Enrichment - Held that: - The Tribunal in Wienerberger Brick Industries Pvt. Ltd. [2014 (1) TMI 1151 - CESTAT BANGALORE] held that with reference to refund claims relating to export of services the principle of unjust enrichment would not be applicable as provided in Section 11 B of the Central Excise Act, 1994. - unjust enrichment will not apply.
Refund allowed - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1174 - CESTAT CHANDIGARH
Classification of services - respondent had paid IPLC Charges to its parent company M/s CMG - the assessee classified under Lease Circuit Service whereas, the department was classifying the same under the Business Auxiliary Service - reverse charge mechanism - Section 66(A) of the Finance Act, 1994 - Held that: - the issue of taxability of IPLC service has been already decided by this Tribunal in the case of Infosys Ltd. [2014 (3) TMI 695 - CESTAT BANGALORE], where it was held that If the service has been rendered in USA or Canada received by the branch office of the appellant in USA or Canada and utilised by the branch office at USA or Canada and paid for out of the foreign exchange earned, unless the Revenue is able to show that the service has been received in India, or the benefit of service rendered abroad has been received in India, the tax, in our opinion, would not be payable - such services do not fall under the category of Business Auxiliary Services but falls under Telecommunication Service.
Difference of Revenue between balance sheet and ST-3 - Held that: - the SCN has simply taken the difference between ST-3 Return and balance sheet and prepared a table without offering any explanation or basis as to how the demand had arisen for different periods and services. Demands appears to have been calculated the service tax in the SCN without doing any investigation or analysis of relevant documents or co-relation with the refunds taken by the respondent. Admittedly, the respondent are eligible for refund of the service tax on quarterly basis and turnover is certified by statutory auditors as has observed by the Ld. Commissioner - demand set aside.
Management Consultancy Service - other expenses - includibility - Held that: - no findings have been given in respect of dropping of demand of ₹ 13,81,818/-, which was raised as part of total demand in show cause notice dated 29.03.2011. In the absence of clear findings on other expenses, the matters required to be remanded back to the adjudicating authority for passing a fresh order, after re-examining the demand of other expenses and management consultancy raised in show cause notices dated 19.10.2011 and 17.11.2011 - matter on remand.
Appeal allowed in part and part matter on remand.
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2018 (1) TMI 1173 - CESTAT CHENNAI
Voluntary Compliance Entitlement Scheme - scope of SCN - Held that: - The discussions in the said order is only with regard to grounds on which the appellant is not eligible to be considered for the VCES scheme. The Commissioner (Appeals) has observed that since the show cause notice was issued for the period prior to the period covered under the scheme, would make the appellant ineligible to file a declaration under the scheme - rejection of VCES declaration filed by the appellant upheld - appeal dismissed.
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2018 (1) TMI 1172 - CESTAT CHENNAI
Classification of services - Advertising Agency Service - commission received from the publishers for the disputed period along with interest, if any - Held that: - the activities of the appellant would fall not under "Advertisement Agency Service" but only under "Business Auxiliary Service" - Impugned order to the extent that it confirms the demand of differential tax liability on services rendered on commission received for canvassing advertisements will not be sustainable since the said service will not be taxable under "Advertising Agency Service" and therefore since that has not been demanded under BAS, the entire proceedings to that extent will not sustain and therefore is set aside.
Demand of interest on delayed payment upheld as the appellant is not contesting this interest liability.
Appeal allowed in part.
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2018 (1) TMI 1171 - CESTAT CHENNAI
Labourers harvesting charges - Department took the view that these are services rendered by the assessee and are liable to service tax under the category of Man-power Recruitment or Supply Agency Services - Held that: - the amendments in the definition of the "services" as well as the taxable event in the Finance Act, 1994 relating to Man-power Recruitment Supply Agency Services and has come to the correct conclusion that service tax liability cannot be hoisted on the assessee for the impugned period - reliance placed in the case of Commissioner of Customs, Central Excise and Service Tax, Aurangabad Vs Shri Samarth Sevabhavi Trust [2015 (3) TMI 1170 - BOMBAY HIGH COURT], where it was held that the respondent's work, though provided services to the sugar factory, did not come within the mischief of the term “Manpower Recruitment or Supply Agency” - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1136 - KARNATAKA HIGH COURT
Cognizance taken against the accused persons - section 83 of the Finance Act, 1994 and Section 14 of the Central Excise Act, 1944 - Held that: - it is not a penal provision, wherein the Court can 958/2008, take cognizance of such provision. Even Section 14 of the Central Excise Act is tices with not a penal provision which only prescribes the procedure for summoning a witness - Section 14 of the Central Excise Act says that it is empowered to summon pliance of persons to give evidence and to produce document in the inquiry. Therefore, the long with alleged order of taking cognizance under the above said provisions is bad in law today. It is clearly a non-application of mind by the Judicial Officer before passing the impugned order. Further, the learned counsel has also submitted as noted above with regard to the jurisdiction, no order has been passed by the trial Court. Therefore, in my opinion, these two important aspects has to be considered by the trial Court. If the Court does not take cognizance of the offence, it cannot proceed with the case by summoning him.
The order dated 21-4-2016 passed by the Principal Senior Civil Judge & CJM, Mangaluru, in PC No. 16/2016 in taking cognizance under the above said provisions is hereby quashed. However, the matter is restored on to the file of the Trial Court to pass appropriate orders - appeal allowed in part.
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2018 (1) TMI 1135 - CESTAT NEW DELHI
Erection, commission or installation service - abatement under Composition scheme - Held that: - there is no service tax liability on composite works contract service prior to 01/06/2007 - on this composite works contract, the appellant were discharging service tax w.e.f. 01/06/2007 - no tax liability will arise on such service irrespective of the date of receipt of consideration for the same - appeal allowed.
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2018 (1) TMI 1134 - CESTAT NEW DELHI
Extended period of limitation - case of Revenue is that Since the assessee-Respondents neither filed statutory return nor paid the Service Tax, they cannot take the plea against the limitation - Held that: - the Department has failed to establish that the appellant has intentionally evaded the service tax by suppression of facts. If the appellant bonafidely believed that the service provided by them are not taxable as held by the Department and accordingly did not pay the service did not file the service tax return for such services, then the appellant cannot be held guilty of suppression of facts with intend to evade service tax as required for invoking extended time and also for imposition of penalty under Section 78 of the Finance Act, 1994 - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1133 - CESTAT NEW DELHI
Valuation - Erection, Commissioning or Installation Service - Since the appellant did not include the value of free supply material in the gross value charged by it, the benefit of abetment/ composition scheme was denied by the Department - Held that: - the contract executed by the appellant involved supply of material as well as for provision of labour. Thus, the activities undertaken by the appellant should fall under the preview of works contract for levy of Service Tax. The composition scheme should be available to the appellant and cannot be denied on the ground that it did not specifically exercise the option regarding opting for the works contract service - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1132 - CESTAT NEW DELHI
Business Auxiliary Service - Multi-level Marketing services for the consumer goods belonging to M/s. Fashion Suitings Ltd. - extended period of limitation - penalty - Held that: - Since the issue was resolved by the Tribunal in 2015, it cannot be said that non-payment of tax by the appellant is attributable to fraud, suppression of facts etc. with intend to defraud the Government revenue. Thus, the show cause notice issued on 21.08.2008 for the period from 19.09.2004 to 10.08.2008 is partly barred by limitation of time.
Penalty - Held that: - there were confusions with regard to payment of service tax on Multi Level Marketing services under the taxable category of “Business Auxiliary Service” - benefit of Section 80 ibid should be available to the appellant for non-imposition of penalties.
The appeal is allowed by way of remand to the Original Authority for quantification of the service tax demand within the normal period of limitation.
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2018 (1) TMI 1131 - CESTAT CHENNAI
CENVAT credit - GTA Services - It appeared to the department that such utilization of cenvat credit was irregular since the service provided by the GTA for outward transportation does not become an output service for consignor or consignee in terms of Rule 2(p) and 2 (r) of the Cenvat Credit Rules, 2004 - Held that: - prior to 1.3.2008, there is no bar on the appellants for utilization of cenvat credit for discharging, as a consignor, the tax liability on GTA services availed for outward transportation - for the period 1.3.2008 to September 2008, i.e., the remaining part of the disputed period, by virtue of the amendment brought in Rule 2 (p) of the Rules vide Cenvat Credit (Amendment) Rules, 2008 w.e.f. 1.3.2008 appellant cannot utilize cenvat credit for discharging tax liability on the said GTA service for outward transportation. Cenvat credit so availed will then will have to be paid back along with appropriate interest liability thereof. For this limited purpose, we remand the matter to the adjudicating authority, only for the purpose of calculating the amount required to be paid back and the interest liability thereon for the period 1.3.2008 to September 2008.
Penalty - Held that: - the issue per se was mired in confusion during the disputed period - penalty cannot be imposed.
Appeal allowed in part and part matter on remand.
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2018 (1) TMI 1130 - CESTAT CHENNAI
Classification of services - Tour Operator Service - Department took the view that the vehicles operated by the appellants are covered by permits issued by the Transport authorities under the Motor Vehicles Act and the point to point services operated by them would be liable to be classified under the category of "tour operator service" - extended period of limitation - Held that: - Appellant has conceded his liability for part of the period; there can then be no reason why such liability will not extend to the entire period covered by the notice. Accordingly, the tax liabilities will be demandable for the periods 1.4.2000 to 07.10.2004 and October 2005 to March 2007 - SCN not hit by limitation.
Grant of cum tax benefit - Held that: - There is no allegation that appellant had collected service tax from their customers but had not paid the same to the exchequer. It is also a fact that the issue of taxability in respect of stage carriages/contract carriages and tour operators was mired in confusion during impugned period and only after the judgment of the Hon'ble Madras High Court in Secretary, Federation of Bus Operators Association of Tamil Nadu Vs UOI [2001 (4) TMI 7 - MADRAS HIGH COURT] wherein the matter had been settled - plea of cum duty benefit is granted - penalty set aside.
Appeal allowed in part.
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2018 (1) TMI 1129 - CESTAT CHENNAI
Abatement - photographic services - benefit of N/N. 12/2003-ST dt. 20.6.2003 - extended period of limitation - Held that: - the issue whether the cost of material has to be included in the value of taxable services in photographic services while discharging service tax liability was highly contentious during the disputed period and there were conflicting decisions - On such score, we are of the considered opinion that the appellant has made out a case on the ground of limitation - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1117 - BOMBAY HIGH COURT
Re-quantification of service tax liability - Valuation - Maintenance or repair service of transformers not manufactured - bonafide doubt - claim of deduction from the value - Held that: - Various facets of that aspect were highlighted in the grounds of appeal itself, but the tribunal understood it as only a limited request and for re-quantification. We do not see how the tribunal could have concluded that a casual perusal of the invoices produced before it indicates that the appellant assessee has charged separately for the material consumed and for the service of the repairs of transformers. The tribunal holds that the payment of service tax liability in relation to maintenance or repair service post 15th June, 2006 needs re-quantification, but if that is how it has understood the matter, re-quantification is not reconsideration of the limited prayer of the assessee regarding cost of the material that needs to be reduced from the value of tax liability due.
We do not, therefore, think that a restricted remand was sought by the appellant, as is erroneously understood in the order under appeal. - Be that as it may, both aides agree before us that for this limited extent, the matter should go back to the tribunal itself and need not be sent to the adjudicating authority.
The assessee would rely on those very materials, which were before the adjudicating authority and forming part of the paper book or records before the tribunal and nothing more. On these materials itself, the assessee would be able to convince the tribunal that the segregation or requantification, as prayed should be made. If this is how the matter is understood by the assessee, then, we see no justification for remanding the matter to the adjudicating authority.
We set aside that part of the order, which we have reproduced above i.e. para 6.5 and the ultimate direction in para 6.7 with regard to liability of the appellant to pay service tax post 15th June, 2005 and direct that even if the said service attracts tax and which is admissible and payable, its computation be done afresh in accordance with law - Matter remanded back before the tribunal.
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2018 (1) TMI 1093 - CESTAT NEW DELHI
Business Auxiliary Services - certain public relation activities carried-out by them for their clients - Held that: - It is clear that the ‘media monitoring service’, though incidental, may help the client to formulate certain policies to help them improve their business apparently has no direct nexus to such sales promotion. Arranging interviews or press conference can be for various reasons like disclosing financial performance or clarifying certain issues to the public. As such, the presumption of the Revenue, that ‘media monitoring service’ and similar such activities are to be taxed under BAS, is not sustainable - appeal dismissed - decided against Revenue.
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