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Service Tax - Case Laws
Showing 61 to 80 of 29356 Records
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2024 (5) TMI 9 - CESTAT AHMEDABAD
Nature of activity - manufacture or service - Activity amounting to manufacture or not - crushing of lumps - time limitation - HELD THAT:- As per the Section 2(f) from the sub-clause (ii) of Section 2(f), it is clear that in relation to any goods in the section or Chapter notes if the activity is specified as amounting to manufacture is resultant goods will qualify as manufactured goods. In the present case also as per Chapter Note i2) under Chapter 25, the crushed ground powdered form of the product covered under chapter heading 2501, 2503 and 2505 is a manufacturing activity. Therefore, the appellant’s activity is clearly a manufacturing activity.
Support derived for the case of SN. SUNDERSON (MINERALS) LTD. VERSUS SUPTD. (PREVENTIVE), C. EX., INDORE [1994 (3) TMI 111 - HIGH COURT OF MADHYA PRADESH] where it was held that the operation of crushing brings into existence a new product which has a different name, character and use. Process in this case is `manufacture' of lime stone chips which are excisable goods liable for duty under Chapter 25 of the Central Excise Tariff Act, 1985 at the rate of 12 per cent. The Collector, Central Excise, is right in levying duty on lime stone chips.
From the above, it can be seen that any activity that amounts to manufacture of excisable goods is excluded from the definition. As discussed above, we arrive at a conclusion that the crushing of lumps into powder is an activity amounts to manufacture, when this being so, the manufacturing activity is excluded from the definition of Business Auxiliary Service, therefore, no service tax under the said head shall sustain.
Time Limitation - HELD THAT:- Considering the nature of the goods, the demand for the extended period was set aside in various cases - reliance can be placed in the case of Hindustan Construction Company Limited [1996 (9) TMI 156 - CEGAT, COURT NO. II, NEW DELHI] dealing with the issue that whether the crushing of stones into stones of smaller size amounts to manufacture, classifiable under sub-heading 2505 as in the present case, the Larger Bench by majority of order though held that the activities amount to manufacture but the demand for the extended period was set aside.
The demand is not sustainable on limitation also - the impugned orders are not sustainable - Appeal allowed.
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2024 (4) TMI 1126 - CESTAT CHENNAI
Classification of services - Erection, Commissioning or Installation Service or not - services of laying of optic fibre cables provided to M/s.BSNL - suppression of facts or not - Extended period of Limitation - HELD THAT:- The department has issued clarification on disputes by Board’s Circular No.123/5/2010 that have arisen with regard to works related to cables. In the table given, in para-3 at Sl.No.3, it is mentioned that the laying of electric cables is exempt from levy of service tax. Sl.No.2 states that ‘laying of cables under or alongside roads’ is exempted from levy of service tax. Sl.No.2 is not qualified with the word ‘electric cable’. The word ‘cable’ is used in general sense and will apply to telecommunications cables also. It is opined that the clarification issued by the Board would apply and that the said activity is exempted from levy of service tax.
The department themselves had a contrary view holding that the activity is not subject to levy of service tax. Further, the Tribunal in the case of CCE, LUCKNOW VERSUS M/S RAJ ELECTRIC WORKS [2017 (9) TMI 793 - CESTAT ALLAHABAD] had held that the activity of laying of opting fibre cables for M/s.BSNL is not subject to levy of service tax. The Tribunal in the said case had followed the Board’s circular and also other decisions which have categorically held that the activity is not subject to levy of service tax.
The demand of service tax cannot sustain and requires to be set aside. The issue on merits is answered in favour of the appellant.
Time Limitation - suppression of facts or not - HELD THAT:- There is no suppression of facts brought out by the Department. The appellant has accounted the entire consideration received by them in their books. The demand has been raised on the figures obtained from the records maintained by the appellant. Further the issue is interpretational in nature. In such circumstances, the demand raised invoking the extended period also cannot sustain. The show cause notice is time-barred. The appellant succeeds on limitation also.
The impugned order is set aside. The appeal is allowed.
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2024 (4) TMI 1125 - CESTAT CHENNAI
Levy of service tax - Municipality provided services / facilities while discharging sovereign functions or not - services are in the nature of fees, fine charges collected by the Municipality while discharging the functions enlisted in 12th Schedule of the Constitution or not - reverse charge mechanism - major part of the demand is under Renting of Immovable Property Services - Extended period of limitation - HELD THAT:- The Hon’ble High Court in the case of CUDDALORE MUNICIPALITY VERSUS THE JOINT COMMISSIONER OF GST & CENTRAL EXCISE, THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX AND VIRUDHACHALAM MUNICIPALITY VERSUS THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER OF GST AND CENTRAL EXCISE, CUDDALORE [2021 (4) TMI 500 - MADRAS HIGH COURT] had analysed the issue as to whether demand of service tax can be raised in regard to services / facilities provided by Municipality / Corporation. It was held that Municipalities (local authority) were rendering such services as sovereign function and therefore the amounts received is outside the purview of levy of service tax. In the said judgment, the Hon’ble High Court considered the liability to pay service tax for the period prior to 01.07.2012 as well as after 01.07.2012 - It was held that the Government or local authority is exempted from payment of service tax on Renting of Immovable Property Services or for other services.
The above decision was rendered by the Hon’ble High Court on 22.03.2021. However, prior to this decision, the Hon’ble Jurisdictional High Court at Madurai Bench in the case of Madurai Corporation Vs. The Commissioner of Central Excise [2020 (9) TMI 1303 - MADRAS HIGH COURT] had considered the issue of taxability of renting of immovable property and vide judgment dated 09.09.2020 held that Municipality is liable to pay service tax - In the case of Madurai Corporation, the Ld. Single Bench Judge sustained the demand mainly on the view that it was observed by the Hon’ble High Court in the batch case that the Municipality can pass on the burden of service tax to the tenant (recipient of service tax).
It is represented here that the Department has filed appeal against the decision passed by the Ld. Single Judge in the case of Cuddalore Municipality and that assessee has filed appeal against the decision passed in the case of Madurai Corporation. These appeals are pending before the Hon’ble High Court. Since, the Hon’ble High Court in the case of St. Thomas Mount Cum Pallavaram Cantonment Board [2023 (4) TMI 1024 - MADRAS HIGH COURT] has remanded the matter for considering the issue afresh, it is opined, that in the interest of justice, these matters also require to be remanded to the Adjudicating Authority to consider afresh the issue as to whether Municipality is liable to pay service tax under Renting of Immovable Property Services and other Services.
Time limitation - HELD THAT:- The assessee being a local authority, which is a wing of the Government, it cannot be said that assessee has suppressed facts with intent to evade payment of service tax. So also, there is no positive act of suppression alleged in the Show Cause Notice against these Municipalities. As the matter is remanded, the Adjudicating Authority is directed to consider the issue on limitation also.
The Department has filed appeal aggrieved by dropping or reducing the demands. In case the demand of service tax is sustainable, the Adjudicating Authority is directed to quantify after looking into the actual amounts received in respect of each services.
The appeals are allowed by way of remand to the Adjudicating Authority.
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2024 (4) TMI 1124 - CESTAT AHMEDABAD
Classification of service - works contract service or erection, commissioning and installation services - scope of the supply to the recipients of services include the materials as well - suppression of facts or not - Extended period of Limitation - HELD THAT:- There are force in the arguments of Appellant that the scope of their services also included the supply of material. The same is supported by the facts as recorded by Ld. Commissioner in Para 8(d) of the Order in Original dated 30.10.2014 wherein it is clearly coming up that the Appellant were also required to supply the materials. Therefore, the appropriate classification for the services provided by the Appellants would be “works contract services” and not “erection, commissioning and installation services”.
Reliance placed on the decision of coordinate bench at Chennai in case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI [2018 (9) TMI 1149 - CESTAT CHENNAI] wherein it is held that demand of service tax under the taxable category of erection, commissioning and installation only if the services are in the nature of services simpliciter.
However, as per the facts recorded by Ld. Commissioner in the present case it clear that the scope of services of the Appellants also include supply of materials and therefore, the demand of service tax under the taxable category of erection, commissioning and installation services is not sustainable in the present case. The decision of Real Value Promoters is followed in many other decisions as well.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1095 - SC ORDER
Rejection of review petition - Exemption from Service tax - governmental authority - educational institutions - Indian Institute of Technology, Patna (IIT Patna) - National Institute of Technology, Rourkela (NIT Rourkela) - covered by Mega Service Tax Exemption Notification No. 25/2012, G.S.R 467(E) dated 20th June, 2012 or not - it was held by SC that in the present case, the word “or” between sub-clauses (i) and (ii) indicates the independent and disjunctive nature of sub-clause (i), meaning thereby that “or” used after sub-clause (i) cannot be interpreted as “and” so as to tie it with the condition enumerated in the long line of clause 2(s) which is applicable only to sub-clause (ii).
HELD THAT:- No case for review of the judgment dated 13.10.2023 is made out - The review petition is accordingly dismissed.
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2024 (4) TMI 1094 - CESTAT NEW DELHI
Extended period of limitation - suppression of facts or not - Recovery of service tax - wrongful claiming of value of reimbursement (pure agent) - HELD THAT:- The Order-in-Original is observed to be silent about these allegations/observations in the show cause notice though the extended period is held to be invocable. These allegations also have factual basis which need appreciation of the returns and other related documents. Hence it is not deemed appropriate to decide the plea of limitation without appreciation of the documentary evidence which has been produced by the appellant at this stage before the Tribunal. The said documents need to be appreciated by the original adjudicating authority itself. Both the parties otherwise have acknowledged consents for remanding back the matter.
It is deemed proper that the original adjudicating authority shall decide the show cause notice afresh after giving the appropriate findings with respect to the allegations of suppression and misrepresentation and thus about the invocation of extended period of limitation.
Appeal allowed by way of remand.
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2024 (4) TMI 1063 - CESTAT AHMEDABAD
Extended period of Limitation - Classification of services - Business Auxiliary Services or not - payment of commission to foreign agent during the year 2008-09 and 2009-10 towards trading of petroleum products and booked expenditure in their books of account - revenue neutrality - HELD THAT:- The extended period of limitation can be invoked only when there is suppression of facts, willful mis-statement, and collusion with intent to evade the payment of tax. The extended period of limitation can be invoked only on these grounds which are specifically provided under the statute. If the department seeks to invoke the extended period of limitation on grounds other than those mentioned in statute then such an invocation of extended period of limitation is bad in law.
In this case there was no deliberate intention on the part of the appellant in either not disclosing correct information or to evade the payment of any tax. There is no positive Act was found on the part of the appellant to evade the payment of any service tax nor has any proof towards this been adduced by the revenue. A mere omission will not cause to suppression of fact and as the appellant was of bona fide belief that no service tax was liable to be paid in relation to payment made to foreign agent categorized under ‘Business Auxiliary Service’. Therefore, the longer period of limitation cannot be invoked in the fact of the present case - there are no act of the appellant which prescribed under Proviso to Section 73(1) of the Finance Act, such as suppression of fact, willful mis-statement, collusion with intent to evade payment of tax. Therefore, the demand being under extended period cannot be sustained.
Revenue Neutrality - HELD THAT:- The entire situation is revenue neutral and there is no loss of the revenue. For this reason also there is no mala fide intention on the part of the appellant. Hence, the extended period is not invokable.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1041 - TELANGANA HIGH COURT
Refund of Service Tax - tax paid as a mistake of law - applicability of time limitation as per Section 11B of the Act, 1944 - HELD THAT:- This question came up for consideration before the Delhi High Court in HIND AGRO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS [2007 (8) TMI 215 - DELHI HIGH COURT]. After considering the judgment of the Hon’ble Supreme Court in case of Mafatlal Industries Ltd. [2002 (11) TMI 707 - CEGAT, MUMBAI], the Delhi High Court held that the judgment of Mafatlal Industries Ltd. nowhere talks of a situation where the refund of a tax paid under the relevant Act albeit erroneously was required to be made under the Excise Act or the Customs Act and under no other enactment. It was clearly held that judgment of Mafatlal Industries Ltd. (supra 1) is of no assistance in a case where tax is erroneously paid as a mistake of law.
The Tribunal has also taken note of the judgment of Karnataka High Court in COMMISSIONER OF CENTRAL EXCISE (APPEALS), BANGALORE VERSUS KVR CONSTRUCTION [2012 (7) TMI 22 - KARNATAKA HIGH COURT]. The Karnataka High Court also considered the judgment of Delhi High Court in case of Hind Agro Industries Limited [2007 (8) TMI 215 - DELHI HIGH COURT] and the judgment of Mafatlal Industries Ltd. and in no certain terms made it clear that where the tax is admittedly paid as a mistake of law, the limitation will not come in the way for refund.
Thus, no substantial question of law subsists and needs to be answered, because curtains are already drawn on this issue by various High Courts. Thus, admission is declined.
The Central Excise Appeal is dismissed.
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2024 (4) TMI 1040 - CESTAT CHENNAI
Payment through CENVAT credit not accepted - supporting documents furnished were also not referred - HELD THAT:- There are no doubts as to the availability of CENVAT credit in the books of the appellant. But however, the lower authority has brushed aside the request of the appellant which is borne on record, but it was incumbent upon the original authority discharging the role of an adjudicating authority to verify/cross verify and then give proper findings through speaking order as to whether the claims of the appellant were acceptable or not. It is precisely the case of the appellant that they had discharged service tax liability to a larger extent through credit balance, but however, the original authority has ignored the claims of the appellant, which is not in accordance with law. Further, it is not even the case of the Revenue that the claims of the appellant were wrong insofar as the availability and the utilization thereof, CENVAT credit towards the payment of their service tax liability, however as contended by the learned Advocate, there may be a slight delay, for which statutory provisions are available to safeguard the interest of the revenue.
If the stand of the appellant is to be accepted upon verification, then, the demand once again would amount to double taxation, which is not the spirit of the taxing statute. In that view of the matter, it is deemed most appropriate to set aside the impugned order and remit matter back to the file of the original authority for de-novo adjudication, who verify the claims of the appellant and thereafter, pass a speaking order in accordance with law.
Appeal is allowed by way of remand.
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2024 (4) TMI 1039 - CESTAT KOLKATA
Interest on delayed refund - deposit of whole amount of service tax demanded, under protest - HELD THAT:- Admittedly, in this case, the appellant has made the pre-deposit of whole of the demand of service tax although under protest, but the same was not required to be paid by the appellant to file appeal before this Tribunal - In that circumstances, the appellant is entitled to claim the interest on 7.5% of the demand of service tax deposited (Rs.7,90,08,905/-) on 28.12.2018 till its realization i.e. 01.09.2022.
In terms of the decision of this Tribunal in the case of M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], the appellant is entitled for interest at the rate of 12% per annum - the appellant is entitled to interest on 7.5% of Rs.7,90,08,905/- from 28.12.2018 till 01.09.2022 at the rate of 12% per annum.
Appeal disposed off.
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2024 (4) TMI 1038 - CESTAT ALLAHABAD
Non-payment of service tax - Valuation - Reimbursements of expenses - Pure Agent - 'Freight Reimbursed' and 'Miscellaneous Expense Reimbursed' - Whether the services provided under two separate agreements (Handling Agent Agreement and Transport Agreement) should be classified independently or merged as a single clearing and forwarding agent service for tax purposes. - Reverse Charge Mechanism - extended period of limitation - HELD THAT:- The dispute in this case is for the inclusion of freight amount in the value of C & F service for which a separate agreement has been entered into with the principal, which we do not consider legally tenable. In the case of Gunesh India Pvt. Ltd [2022 (5) TMI 1042 - CESTAT NEW DELHI] in similar type of arrangement with M/s Ultra Tech Cement Ltd Delhi Bench has held under this agreement under the scope of work, the appellant have correctly treated the work as GTA service and service tax have been rightly discharged by the recipient–Ultratech Cement Ltd under Reverse Charge Mechanism. Thus, the confirmation of demand on the appellant is bad and accordingly set aside.
The demand in terms of the above decision which is squarely on the same set of facts have been set aside both on the merits and also limitation.
In case of Srinivasa Transports [2014 (6) TMI 205 - CESTAT BANGALORE] Bangalore bench has held the appellant has provided labour for undertaking miscellaneous jobs and payment has been made to the appellant based on number of man-days involved. This service also would not come under the category of cargo handling service. Therefore, clubbing all the activities undertaken by the appellant under “Cargo Handling Service” and levying Service Tax under the said category cannot be sustained in law. The adjudicating authority has to examine the individual activities carried out by the appellant and then classify the same, considering the definitions provided in the law, which has not been done in the present case. Therefore, the matter has to go back to the adjudicating authority for fresh consideration.
The impugned order cannot be sustained and the same is set aside - Appeal allowed.
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2024 (4) TMI 1013 - CESTAT ALLAHABAD
Non-payment of service tax - Works Contract Service - Service receiver had already discharged the service tax liability - demand raised on the basis of third party information i.e. data revealed from ITR/Form 26-AS from Income Tax Department - Extended period of Limitation - HELD THAT:- It is found from the records that the service receiver PVVNL deposited the entire service tax amount on the works contract services provided by the Appellant.
This Tribunal in the case of NAVYUG ALLOYS PVT. LTD. VERSUS CCE & C, VADODARA-II [2008 (8) TMI 100 - CESTAT AHEMDABAD] has held that once tax is already paid on the services, it was not open to the Department to confirm the same against the Appellant in respect of the same services, since after accepting the said tax from service recipient, Revenue did not refund the same.
Extended period of Limitation - HELD THAT:- The demand is barred by limitation having been raised by invoking the longer period. The Revenue picked up the figures from the Income Tax Return maintained by the Assessee. The Income Tax Return has been held to be public documents by various decisions and it stands concluded that when the income arising from various activities stand reflected in the said public documents, it cannot be said that there was any suppression or misstatement on the part of the Assessee so as to invoke the longer period of limitation - Reference can be made to Tribunal’s decision in the case of C.S.T. NEW DELHI VERSUS M/S. KAMAL LALWANI [2016 (12) TMI 398 - CESTAT NEW DELHI], laying down that extended period is not invocable if services rendered are reflected in Balance Sheet and Income Tax returns and no evidence stands produced that non-payment of duty was due to any mala fide intention.
The impugned order is set aside and the appeal filed by the Appellant is allowed.
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2024 (4) TMI 1012 - CESTAT HYDERABAD
Interest liability on delayed payment of tax - seeking waiver of interest since the payment of service tax was paid under the amnesty scheme - appellants have incurred expenditure towards the Import of Services such as CMMI Course Development Fee/CMMI Certified Lead appraiser per appraisal fee/CMI Institute per appraisal fee etc from CMMI Institute, USA for the services received from them - Reverse Charge Mechanism - Rejection of refund - HELD THAT:- The appellants have paid the Service Tax allegedly on being informed about the clarification issued by CBIC. So called clarification, appears but an Amnesty Scheme notified for the benefit of defaulters proposing to give immunity to those who pay Service Tax evaded along with interest. Having accepted the liability, the appellants had no choice but to pay the applicable interest. Though the appellants could have argued that when Learned Commissioner (appeals) has dropped the penalty on the grounds that there was no suppression, fraud etc, the demand could not have been confirmed invoking extended period. They are not disputing the demand of service tax. Hence, their argument that interest is not payable does not hold water. Therefore, the appellants have lost the opportunity and there is no way that they could accept the Service Tax liability but not the interest applicable thereof.
The Courts and Tribunal have been consistently holding that, under Excise, Service Tax provisions, payment of interest is a corollary to the payment of tax and the liability is automatic. The appellants having paid service Tax and having not disputed the payment of the same, whether or not under the said Amnesty Scheme, cannot seek exemption from payment of interest. To this extent, the stand of the appellants is not acceptable. The appellants are liable to pay interest on Service Tax paid in a delayed manner.
Rejection of refund - HELD THAT:- The appellants have paid the service tax after being pointed out by the audit - Having paid service tax and having not challenged such payment, the appellant has accepted the contention of the department. Moreover, the appellants have paid the applicable service tax on being communicated the contents of the circular issued by CBIC; as discussed above, the clarification is a sort of amnesty scheme wherein the tax defaulters were given immunity from payment of penalty in case the duty has been paid along with interest. Therefore, the admissibility of credit in such situation is subject to provision of Rule 9(1) (bb) and therefore, no argument at length, on the issue of provisions of Section 142(7) of CGST Act, 2017, are applicable to the appellant.
Appeal dismissed.
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2024 (4) TMI 967 - SC ORDER
Extended period of limitation - Suppression of facts or not - Levy of Service Tax - health and fitness service - providing education to patients regarding Yoga - donation received in respect of yoga camp / residential Yoga camp - Donation is related to Education or Health and fitness service or not? - penalty - benefit of Section 80 of FA - it was held by CESTAT that it is observed that demand for the period 01.10.2006 to 31.03.2007 needs to be recomputed after reconciling the amounts received by the appellant during that period with the accounts of appellant and the certificate dated 21.01.2012 of the Chartered Accountant (Anil Ashok & Associates).
HELD THAT:- There are no reason to interfere with the impugned judgment and order. The appeal is accordingly dismissed.
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2024 (4) TMI 966 - CESTAT KOLKATA
Extended period of Limitation - suppression of facts or not - Classification of services - supply of tangible goods service or not - deemed sale or not - outward liability towards non-scheduled air transport services under section 73(2) of Finance Act, 1994 - import of aircraft from Non-resident entity on payment of Lease rental, under section 73(2) of Finance Act, 1994 - Interest and Penalty - HELD THAT:- The Department has initiated investigation against the appellant for the first time in June 2010, on the ground that the appellant should discharge its tax liability under the category of ‘supply of tangible goods for use services’. However, no Show Cause Notice was issued at that point of time. Investigation was initiated against the appellant again in the year 2012. After expiry of a period of three years from the initiation of first investigation in month of June 2010, the appellant has been served with the impugned Show Cause Notice invoking extended period and alleging wilful evasion of Service Tax - the appellant has been filing the returns regularly and they have not suppressed any information from the Department. Accordingly, the demand of service tax confirmed in the impugned order by invoking extended period of limitation is not sustainable.
This view has been held by Tribunal in the case of EIH LIMITED VERSUS C.C.E., DELHI-I [2018 (9) TMI 921 - CESTAT NEW DELHI], wherein the Tribunal has held The alleged suppression must be wilful and it is for the Department to prove the same as already observed above, that the Department has failed to prove the wilful intention. As a result, we are of the opinion that the Department was not entitled to invoke the extended period of limitation. Accordingly, the demand falling beyond one year period preceding show cause notice dated 21-12-2010 is not sustainable and accordingly is set aside.
In terms of Section 73 of the Finance Act, 1994, a period of 1 (one) year from the relevant date has been prescribed to serve the Notice on the person chargeable with the service tax which has not been levied or paid or short levied or short paid. This period of one year has been increased to 18 months w.e.f. 28.05.2012. In the present case, the demand of service tax has been raised for the period 2008-09 to 2011-12 vide the impugned Show Caise Notice dated 18.10.2013 - the appellant is liable to pay service tax along with interest for the normal period of limitation, under the category of 'supply of tangible goods service'. As no suppression of fact with intention to evade the tax is established in this case, no penalty is imposable.
Lease rental paid by the appellant to Non-resident entity under reverse charge - supply of tangible goods service - HELD THAT:- The demand has been raised on the Lease rental paid by the appellant to Non-resident entity under reverse charge. The appellant submits that there is no service involved in this transaction of leasing of the aircraft. A perusal of the Terms and Conditions of the Lease/rental agreement reveals that the operation of the aircrafts has been done by the appellant by appointing their own aircraft crew, maintenance staff, by undertaking maintenance and services activities. Thus, in terms of the conditions of lease rental agreement, both possession and control of aircraft has been transferred in favour of the appellant - As possession and effective control has been transferred to the appellant, the demand of service tax under the category of 'supply of tangible goods' is not sustainable.
Interest and penalty - HELD THAT:- The demand confirmed in the impugned order on this count is not sustainable and hence, the same is set aside - As the demand of service tax is not sustainable, the demand of interest and penalty is also not sustainable.
Appeal disposed off.
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2024 (4) TMI 965 - CESTAT MUMBAI
Refund of CENVAT Credit - Discretion Power of the refund sanctioning authority - denial on the ground that improper description of the input services noted in the invoices of the Appellant/exporter of services - HELD THAT:- On account of legal services availed as input services, no invoices were raised showing the services as legal services and on the other hand copy of G.A.R.-7 Challan evidencing payment of Service Tax clearly indicates that the said payments were made under ‘Business Auxiliary Services’, ‘Cab Operators Services’, ‘Sponsorship Services’, etc. This being the ground for refusal, it is not to understood as to why the question of re-assessment is to come into play when such refusal is permissible well under Rule, 9 of the CENVAT Credit Rules, 2004.
If particulars of description of goods or taxable service is not properly reflected in the duty paying document and that to the satisfaction of the Dy. Commissioner/Assistant Commissioner of Central Excise about its receipt and accounting for, then the discretion lies with the refund sanctioning Authority namely the Deputy Commissioner or Assistant Commissioner of Central Excise to allow the CENVAT Credit or not and such discretion having been exercised judicially, there are no irregularity on the part of Assistant Commissioner (Refunds-II) CGST, Mumbai East in not allowing the same refund that got confirmed by the order of the Commissioner (Appeals).
The order passed by the Commissioner of GST & CX (Appeals-III), Mumbai in rejecting grant of refund to the Appellant on legal expenses is hereby confirmed - Appeal dismissed.
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2024 (4) TMI 964 - CESTAT CHENNAI
Non-payment of service tax - CHA Service - Business Auxiliary Services - reimbursement expenses received - failure to discharge service tax on the incentives / brokerage received by them from steamer agents / shipping lines - demand of differential duty with interest and penalty.
Differential service tax demand raised by the Department under CHA Services - HELD THAT:- The issue as to whether the reimbursable expenses has to be included in the taxable value is settled by the decision of the Hon'ble Apex Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [2018 (3) TMI 357 - SUPREME COURT]. Following the same, the said demand cannot sustain and requires to be set aside.
Demand under Business Auxiliary Services - It is the case of the Department that the appellant received incentives / brokerage from the steamer agents / shipping lines for promoting and marketing the business of steamer agent and shipping lines - HELD THAT:- It is to be noted that the appellant has not been engaged by the steamer agents / shipping lines to provide any service to them. They act as agent for the importer or the exporter. Merely because the steamer agent has paid some incentive to the appellant when they facilitate the export consignment of the importers / exporters it cannot be said that the same would become consideration for providing services. Every flow of money from a person to another cannot be said to be a consideration for providing services. The relationship of service provider and service recipient has to be looked into which is absent in this situation - the demand under Business Auxiliary Services cannot sustain.
The impugned order is set aside - The appeal is allowed.
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2024 (4) TMI 963 - CESTAT CHENNAI
Levy of Service tax - renting of immovable property service - religious body or not - assessee has paid the service tax along with interest under VCES - period from 01.10.2008 to 30.06.2012 - penalty - HELD THAT:- The assessee fits in to the category of ‘religious body’. As per the definition of Renting of immovable property service, such service rendered by a religious body or to a religious body is excluded from the levy of service tax. The assessee herein is not liable to pay service tax under the category of renting of immovable property services up to 30.06.2012. Therefore, the demand for the period prior 30.06.2012 cannot be sustained and require to be set aside.
For the period after 30.06.2012 the assessee discharged the service tax up to 31.12.2012 under VCES. As per the said scheme assessee is not required to pay interest or penalty. In the present case the assessee inadvertently paid the interest also. On being pointed out the adjudicating authority has appropriated the said amount towards the interest payable for the period prior to 01.07.2012.
Penalty for the period after 30.06.2012 - HELD THAT:- The assessee being a religious body was not liable to pay service tax prior to 01.07.2012. after the amendment w.e.f. 01.07.2012 the assessee is liable to pay service tax and has discharged the same before passing the order. The issue being interpretational and the period being transitional when the new service tax regime become applicable, we do not find any grounds to impose penalty for the period 31.12.2012 to 30.09.2013. the view of the adjudicating authority in not imposing penalty is upheld. The department appeal is dismissed.
Appeal allowed.
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2024 (4) TMI 912 - MADRAS HIGH COURT
Recovery of service tax alongwith interest and penalty - works contract service provided by the petitioner between 01.10.2016 to 30.06.2017 - HELD THAT:- The issue is now covered by the decision of the Division Bench of the Principal Seat in M/S. RAJU CONSTRUCTION, REP. BY ITS MANAGING PARTNER, R. SURESH BABU, M/S. VENKATESWARA ENGINEERING CONSTRUCTIONS, REP. BY ITS MANAGING DIRECTOR, MADESAN SIVAPRAKASAM, M. VEDIAPPAN, V. VENGAN VERSUS THE GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI, THE SENIOR INTELLIGENCE OFFICER, O/O. DIRECTORATE GENERAL OF GST INTELLIGENCE, TRICHY REGIONAL UNIT, THE GOVERNMENT OF TAMIL NADU, REPRESENTED BY ITS FINANCE SECRETARY, FORT ST. GEORGE, CHENNAI [2022 (12) TMI 1336 - MADRAS HIGH COURT] where it was held that The prayer for a direction to refund of tax already paid by the petitioner also cannot be countenanced as these petitioners are liable to tax. Therefore, wherever the Orders-in-Original have been passed, the respective petitioners are given liberty to file statutory appeal before the Appellate Authority subject to the compliance of the other requirements of pre-deposit the amount as is contemplated under Section 35F of the Central Excise Act, 1944 as made applicable to the Finance Act, 1994, within a period of thirty (30) days from the date of receipt of a copy of this order.
The Writ Petition is dismissed with liberty to the petitioner to file a statutory appeal before the appellate Commissioner under Section 85 of the Finance Act, 1994 within a period of 30 days from the date of receipt of a copy of this order.
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2024 (4) TMI 911 - CESTAT NEW DELHI
Seeking refund of accumulated Cenvat credit - input services or not - Judicial Discipline - The department had not accepted the judgement in the case of Paul Merchants and filed a Civil Appeal before the Supreme Court - HELD THAT:- The question of judicial discipline was examined by a three member bench of the Supreme Court in UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. [1991 (9) TMI 72 - SUPREME COURT]. The Assistant Collectors in that case flouted the orders of the Appellate Collector on the ground that the order of the Appellate Collector were not acceptable to the department. The assessee filed a Writ Petition before the Bombay High Court which passed strictures against the Assistant Collectors. Union of India filed an appeal before the Supreme Court which upheld the strictures passed by the Bombay High Court.
Evidently, in this case, the Commissioner (Appeals) has refused to follow judicial discipline on the ground that the order of this Tribunal on the ground that it has not been accepted by the department. The very statement that a judicial decision is ‘not acceptable’ is an objectionable phrase as held by in Kamlakshi Finance and the Commissioner (Appeals) was bound to have followed the order of this Tribunal since it was not stayed, suspended or set aside by a higher court. By displaying gross judicial indiscipline, the Commissioner (Appeals) has caused considerable harassment to the appellant without any benefit to the Revenue. It is to curb this tendency that the Supreme Court had dealt with the issue at length in Kamalakshi Finance.
The impugned order is set aside - Appeal allowed.
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