|
Advanced Search Options
Service Tax - Case Laws
Showing 61 to 80 of 31129 Records
-
2025 (4) TMI 967
Levy of penalties - suppression of facts or not - failure to furnish information and failure to pay service tax electronically - benefit of cum-tax valuation under Section 67(2) of the Finance Act, 1994 - extended period of limitation - HELD THAT:- The Appellant had collected the amounts in terms of the MOU signed between them and M/s Ansal Properties & M/s Sputnik Realtors Pvt. Ltd. with respect to the commission per acre to be paid to them. The fact about these amounts being collected by them was never disclosed by them to the Revenue Authorities or in their ST-3 Returns. Thereby they suppressed the value of taxable services being provided by them with a intent to evade payment of tax. From the impugned order it is evident that Appellant was aware that tax was due in respect the said amount and they agreed to discharge service tax liability of this amount during the relevant period. There is no dispute with regards to the amount of service tax demanded from the Appellant. The Appellant do not dispute the same. That being so by not reflecting these tax liabilities in their ST-3 Return Appellant have deliberately knowingly suppressed the relevant facts from the Revenue Authorities with intent to evade payment of tax. Thus their cannot be any dispute with regards to the penalties imposed upon them under Section 78 in terms of decision of Hon’ble Supreme Court in the case of UOI V/s Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT].
While this option to pay 25% of the amount confirmed was extended in Order-In-Original the same has not been extended in the impugned order by the Commissioner (Appeals) whereby major amount of demand has been dropped (demand confirmed by Order-In-Original is Rs.78,79,420/-and by Order-In-Appeal is only Rs.7,96,139/-) it was thus necessary for the Commissioner (Appeals) but have specifically extended this benefit of payment of penalty at 25% of the tax short paid in terms of this provisions.
Conclusion - The benefit extended in terms of this Section to the Appellant for payment of entire amount of tax with interest and 25% penalty within 30 days of the receipt of this order.
Appela disposed off.
-
2025 (4) TMI 966
CENVAT Credit - proportionate credit reversal made by the appellant for the period April 2011 to September 2012 - sufficient compliance with Rule 6(3) of the Cenvat Credit Rules, 2004 or not - credit availed on the basis of photocopies of documents - invocation of extended period of limitation.
Whether the proportionate credit reversal for the period April 2011-Sept. 2012 is sufficient compliance to Rule 6(3) of the Cenvat Credit Rules, 2004? - HELD THAT:- Once the appellant have reversed proportionate credit on common input service attributable to the exempted service, along with interest, it restores the position of cenvat credit not having been availed at all, and the demand for 5%/6% of the value of exempted services cannot be sustained. In the case of Chandrapur Megnet Wires P. Limited vs. CCE, Nagpur [1995 (5) TMI 148 - CEGAT, NEW DELHI], the Hon’ble Supreme Court has held that 'we see no reason why the assessee cannot make a debit entry in the credit account before removal of the exempted final product. If this debit entry is permissible to be made, credit entry for the duties pald on the inputs utilised in manufacture of the final exempted product will stand deleted in the accounts of the assessee. In such a situation, it cannot be said that the assessee has taken credit for the duty paid on the inputs utilised in the manufacture of the final exempted product under Rule 57A. In other words, the claim for exemption of duty on the disputed goods cannot be denied on the plea that the assessee has taken credit of the duty paid on the inputs used in manufacture of these goods.' - the demand cannot be sustained.
Whether credit is required to be reversed for the period Octber 2012-March 2015? - HELD THAT:- From the date of the certificate, it is evident that this was not presented before the adjudicating authority. However, there are no infirmity in the said CA Certificates - It is not clear as to in what form, the adjudicating authority wanted the CA Certificate to be submitted in order to satisfy the requirements of the Department. It is well settled principle that CA Certificate cannot be rejected unless it is evidenced that the same is fake or forged. Consequently, the CA Certificates submitted are acceptable to establish that no credit was availed on common input services for the period October, 2012 to March 2015.
Whether credit availed on photocopies of documents is admissible? - HELD THAT:- The appellant has claimed that the original invoices were submitted to the Range Office vide their letter dated 11.03.2014, a copy of which is annexed to the appeal paper book. It is noted that the said letter is addressed to Superintendent, Service Tax, Range-I, Division-I, Noida and the receipt stamp of the Range date 12 March 2014 is clearly visible. This contention of the appellant has been boldly rejected by the adjudicating authority holding that the letter has not been acknowledged and the signature appended is not identifiable. Once a evidence of producing the original invoices before the Jurisdictional Officer has been submitted, unless it is evidenced that the seal/signature was forged, the submission deserves to be accepted.
Whether extended period is rightly invoked? - HELD THAT:- The Audit team carries out a very comprehensive action beginning from creation of the Assessee Master file to the actual audit of the records of an assessee. In the instant case, it is noted that the audit was undertaken over 3-4 days in the year 2012, looking into all the records maintained by the appellant. Further, as the appellant being subjected to audit from time to time, the invocation of extended period is neither warranted not substantiated. Once all the statutory records of the appellant has been audited and the appellant has filed this returns regularly, the Department cannot invoke the extended period.
Conclusion - i) The position of cenvat credit not having been availed at all, and the demand for 5%/6% of the value of exempted services cannot be sustained. ii) The CA Certificates submitted are acceptable to establish that no credit was availed on common input services for the period October, 2012 to March 2015. iii) Once a evidence of producing the original invoices before the Jurisdictional Officer has been submitted, unless it is evidenced that the seal/signature was forged, the submission deserves to be accepted. iv) Once all the statutory records of the appellant has been audited and the appellant has filed this returns regularly, the Department cannot invoke the extended period.
The impugned order is set aside - appeal allowed.
-
2025 (4) TMI 965
Availment of abatement under N/N. 1/2006 Service Tax dated 01.03.2006 - commercial or industrial construction & construction of residential complex services - simultaneously availing CENVAT Credit of Service tax on input services used for providing such taxable services - obligation to maintain separate accounts for taxable and exempted services as prescribed under Rule 6(2) and Rule 6(3) of the CENVAT Credit Rules, 2004 - Extended period of limitation - HELD THAT:- From the wordings of Notification No. 01/2006-ST dated 01.03.2006 it is apparent that the benefit of abatement is available only when service provider is not taking any CENVAT Credit either on Capital Goods/inputs/input Services. Further, it is noted that Rule 6 of CENVAT Credit Rules, 2004 provides for certain obligations of a manufacturer of dutiable and exempted goods and provider of taxable and exempted services.
According to Rule 6(2), a separate account is required to be maintained in respect of input services, if the output services are taxable as well as exempted. Rule 6(3) considers a situation wherein when separate account is not maintained, in such a situation, either a flat amount as a percentage of exempted & taxable services is to be paid or an amount as prescribed under Rule 6(3A) is liable to be paid - In case abatement is availed, then Cenvat credit cannot be availed, if they have availed Cenvat credit then abatement cannot be availed.
In the instant case, the appellant has chosen to avail abatement and take Cenvat credit. It was then incumbent upon him to follow the procedure as prescribed under Rule 6 of the CCR, 2004. Therefore, the denial of abatement for 2010-2011 is correct and the demand is sustained. It is also noted that the appellant has reversed the Cenvat credit availed for the year 2011-2012 which stands appropriated. Therefore, there are no reason to differ from these findings in the impugned order.
Extended period of limitation - HELD THAT:- The finding recorded that suppression of facts is sufficient to invoke the extended period of limitation under the proviso to Section 73 (1) of the Finance Act and there is no necessity of any intent to evade payment of service tax, is against the well settled principles. It has to be examined whether any suppression was wilful and coupled with an intent to evade payment of service tax - In Pushpam Pharmaceuticals Company vs Commissioner of Central Excise, Bombay [1995 (3) TMI 100 - SUPREME COURT] the Supreme Court examined whether the Department was justified in initiating proceedings for short levy after the expiry of the normal period of six months by invoking the proviso to Section 11A of the Excise Act. The proviso to Section 11A of the Excise Act carved out an exception to the provisions that permitted the Department to reopen proceedings if the levy was short within six months of the relevant date and permitted the Authority to exercise this power within five years from the relevant date under the circumstances mentioned in the proviso, one of which was suppression of facts.
Conclusion - It is evident that mere suppression of facts is not sufficient, but there must be a deliberate and wilful attempt on the part of the assessee to evade payment of duty. In the absence of any intention to evade payment of service tax, which intention should be evident from the materials on record or from the conduct of the appellant, the extended period of limitation cannot be invoked. As the extended period is held to be not invokable, hence the penalty under section 78 is also liable to be set aside.
The demand is upheld for the normal period only. The appeal is allowed to the extent indicated and the impugned order is upheld partially.
-
2025 (4) TMI 964
Admissibility of adjustment of the service tax paid - adjusting of the service tax paid in respect of cancelled ‘site mobilization advance’ against the service contract for erection and commissioning of boilers, which were converted into ‘advance’, by re- negotiation; and subsequent adjustment of service tax paid by them under Rule 6(3) of Rules of 1994 - HELD THAT:- The service tax is liable to be paid in respect of taxable services provided by one person i.e., service provider to the other person i.e., service receiver. It is not in dispute that the appellants are the service provider and their customer M/s Jai Prakash Associates Limited is the service receiver, in respect of the taxable services. In terms of Section 66 ibid, since the service tax is liable to be paid at the rate of 12% of the value of taxable services, recourse have to be taken to the provision of Section 67 ibid for determining the value of taxable services. As per the said legal provision, the value of services is the ‘gross amount’ charged by the service provider for such service provided or to be provided by him; and the phrase ‘gross amount’ includes payment by cheque, credit card, deduction from account and any form of payment by issue of credit notes or debit notes and book adjustment, and any amount credited or debited, as the case may be. In the present case, in terms of the contract entered into between the appellants and their customer, the advance amount has been re-negotiated and the same was adjusted for the initial payment made by the customer towards mobilization advance and subsequently with the total value of the contract.
On perusal of the contractual terms and conditions, it is seen that the appellants was supposed to charge 10% of the Contract Price as “advance” within 7 days of singing the Contract and 10% of the Contract Price against “mobilisation at site”. However, subsequently on renegotiation, both the parties agreed that appellants will convert the 10% Mobilization Advance also as ‘Normal Advance’ and thereby increasing the rate of advance to effectively 20%. Accordingly, the appellants raised a credit note for the equivalent amount of the invoices raised earlier. The appellants adjusted the invoice value against the invoices raised in subsequent periods and adjusted the excess service tax paid in the subsequent period i.e. July 2010 as per Rule 6(3) ibid. An activity which was not recognised by either of the parties cannot be said to be a ‘service provided’ by the appellants. Hence, the appellants had paid excess service tax in respect of a service which was not provided by it. Therefore, the appellants has correctly adjusted the excess service tax paid under Rule 6(3) of Service Tax Rules, 1994.
It is found that in the case of the appellant’s group entity- Thermax Instrumentation Ltd., the Tribunal in Thermax Instrumentation Ltd. v. CCE, Pune-I [2015 (12) TMI 1222 - CESTAT MUMBAI], has held that service tax is not payable on receipt of advance, since the same is in the nature of merely Earnest deposit.
The impugned order dated 18.07.2016 is liable to be set aside, to the extent it had denied adjustment of service tax and had confirmed the adjudged demands and had imposed penalties on the appellants.
Conclusion - The service tax is leviable only on the value of services actually provided and invoiced, and advances or mobilization payments treated as advances do not attract service tax until adjusted against invoices. Excess tax paid on cancelled or renegotiated advances can be adjusted under Rule 6(3) by issuing credit notes or refunds.
Appeal allowed.
-
2025 (4) TMI 963
Availment of CENVAT Credit of service tax paid on reimbursement of diesel and electricity cost and its admissibility to the respondent - admissibility of CENVAT credit availed by the respondent on the basis of debit notes issued by the vendor - HELD THAT:- The issues under dispute is no more res integra in view of the decision of the Co-ordinate Bench of the Tribunal in the case of self-same respondents in COMMISSIONER OF CGST & CENTRAL EXCISE, MUMBAI VERSUS VODAFONE IDEA LIMITED [2022 (9) TMI 1285 - CESTAT MUMBAI], wherein it has been held that the respondents are eligible for CENVAT credit and the appeal filed by Revenue was dismissed.
The cost Diesel and Electricity form a part of the value of the services provided by the Vendor.
Conclusion - i) The respondents are eligible for CENVAT credit. ii) The cost Diesel and Electricity form a part of the value of the services provided by the Vendor.
The appeal filed by the appellant-department is dismissed.
-
2025 (4) TMI 962
Non-payment of Service Tax on import of services - payments made by the appellant in foreign exchange to foreign entities - wilful suppression of facts - extended period of limitation - HELD THAT:- There is no evidence produced by the Revenue to establish that the appellant has actually received any service within the country which can be categorized as ‘import of service’. A perusal of the Show Cause Notice shows that the notice has been raised on the basis of scrutiny of the documents available with the appellant. However, it is observed that no documentary evidence has been brought on record to substantiate the allegation that the appellant has imported 'management, maintenance or repair service' relating to software into the country, for demanding Service Tax under the category of ‘import of service’.
The twin conditions of reverse charge mechanism for import of services were that the service must be rendered from outside India and the services must be received in India. In this case the services were rendered by payees of Foreign Currency from outside India but, we find that there is no evidence available on record to show that any part of these services were received in India. There is no finding by the lower authorities that the services were received in India. Only incurring of foreign currency does not render the transaction chargeable under service tax under Section 66A of Finance Act, 1994 read with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006.
Demand of service tax under the category of Import of service - HELD THAT:- The demand has been raised by the Department based on the earnings in foreign exchange. However, there is no indication that these services were actually received in India - there is no evidence available to indicate that the appellant had received these services in India and utilized in India. Therefore, the services utilized abroad are to be considered as ‘export of service’ at the hands of the appellant. Consequently, we hold that there is no liability to Service Tax for the services procured and utilized abroad. Accordingly, the demand of service tax confirmed in the impugned order is liable to be set aside.
Extended period of limitation - HELD THAT:- The company was under the belief that the transactions for which foreign currency expenses were incurred did not attract service tax on reverse charge basis or otherwise. In the Financial Year 2011-12, there was no foreign currency expenditure incurred. The proceedings initiated by issue of the present Show Cause Notice on 21.10.2013 in respect of Financial Years 2008-09 to 2011-12 are all time-barred as on date of issue of the Show Cause Notice. Thus, the demand confirmed by invoking the extended period of limitation is not sustainable.
Conclusion - The demand confirmed in the impugned order on the basis of the data recovered from the balance sheet is not sustainable and hence the same is set aside. Since the demand of Service Tax is not sustainable in the instant case, the question of demanding interest or imposing penalties thereon does not arise.
Appeal allowed.
-
2025 (4) TMI 961
Dismissal of appeal for non-compliance of the conditions in terms of Section 35F of the Central Excise Act, 1944 - HELD THAT:- Department is placing reliance in the case of Union of India Vs Aakar Advertising [2008 (4) TMI 50 - HIGH COURT RAJASTHAN] in which Hon’ble High Court of Rajasthan – Jodhpur decided that Tribunal could not entertain appeal on merit when impugned order dismissing appeal for non-payment of predeposit not paid dismissal of appeal by Commissioner (Appeals) sustainable and Tribunal not empowered to entertain appeal on merit.
Therefore, no need to decide the appeal on merit, since appellant failed to pre-deposit as directed by the Commissioner (Appeals), as required under Section 35F of the CEA 1944. Therefore, appeal is not maintainable as per law and facts of the case and liable to be dismissed on this ground itself - Appeal dismissed.
-
2025 (4) TMI 960
Nature of activity - activity of retreading old tyres by the appellant amounts to manufacture or is to be treated as a service - HELD THAT:- The issue of its being a manufacturing activity or otherwise has been dealt with in detail in the impugned order and it is found no reason to interfere with the same and hold that during the material time, the activities being carried out by the appellant did not amount to manufacture and therefore, no Central Excise duty was leviable thereon.
It is an admitted fact that the appellants were a franchisee of MRF Ltd, which gave them certain technology of retreading of old tyre and also provided certain specified machinery and materials to be used for such retreading. The actual interaction was with their customers, who would get their old tyres retreaded by the appellant. Therefore, the terms and conditions of the agreement between the MRF Ltd, who gave the appellants the franchise for running a retreading setup with certain proprietary material and technology is of no consequence - once this activity is to be considered as WCS, then the SCN itself shall fail because the classification alleged by the department is under MMRS. However, to arrive at the said conclusion, what is required to be seen is whether the contract between the appellant and their customer is that of composite nature or otherwise.
Conclusion - During the material time, the activities being carried out by the appellant did not amount to manufacture and therefore, no Central Excise duty was leviable thereon.
The matter is remanded back to the Original Adjudicating Authority - Appeal disposed off by way of remand.
-
2025 (4) TMI 959
Service tax liability for the period 2011-12 and 2012-13 - Renting of immovable property - Outdoor catering and Restaurant services - Value of pure sales not excluded - Supply to SEZ units - Extended period of limitation - Cum-tax benefit.
Service tax liability for the period 2011-12 and 2012-13 - HELD THAT:- There are no reason as to why the threshold limit in terms of Notification No. 6/2005-ST dated 01.03.2005, as amended was not calculated while determining the demand. The matter hence merits being remanded for determination afresh.
Renting of immovable property - HELD THAT:- It is a settled principle in law that a contract is to be interpreted according to the joint intent of both the parties to the contract and which is to be discovered from the entirety of the contract and the circumstances surrounding its formation. The Maxim “Pacta dant legem contractui” means that the stipulations of the parties constitute the law of the contract. It is hence the duty of the appellant in the circumstances, to lead the best evidence in his possession, which in this case is the contract, as it would throw light on his claim and in case such material evidence is withheld, an Authority may draw adverse inference - The Hon’ble Supreme Court in Smt. J. Yashoda Vs Smt. K. Shobha Rani [2007 (4) TMI 11 - SUPREME COURT], held that the rule which is the most universal, is that the best evidence which the nature of the case will admit shall be produced. So long as the higher or superior evidence is within a persons possession or may be reached by him, he shall give no inferior proof in relation to it. The taxability of the service, if any, hence needs to be discussed in terms of the conditions of the contract and has to be examined afresh with a copy of the same - The impugned order also does not disclose any reason for its conclusion approving taxability for the alleged service. The Appellant has claimed that he provides item wise food based on the availability and further collects and pays Value Added Tax for such sale. The same is not seen discussed. The matter hence merits to be examined afresh by the Original Authority.
Outdoor catering and Restaurant services - HELD THAT:- The Adjudicating Authority has determined the taxable value by including the sodexo sales, swiggy sales, bakery sales, etc., which are not exigible to service tax. The Appellant has submitted that they paid Rs. 19,30,844/- in excess during the period 2015-16 and therefore, requested to adjust the demand relating to the period April 2015 to June, 2017 which works out to Rs. 12,11,966/-, which has not been examined by the Original Authority. There are no discussion of this matter in the OIO and hence this matter of the stated activity not being exigible to service tax and tax not being adjusted, too deserves to be examined afresh.
Supplies to SEZ - HELD THAT:- Rule 9 of the SEZ Rules provides for the grant of approval for authorized operations. As per Rule 10 the goods and services required for the authorized operations may be approved by the Board. Hence unauthorized operations performed within the SEZ area are liable to duty. In the case of Competent Authority Vs. Barangore Jute Factory [2005 (11) TMI 490 - SUPREME COURT], it has been held by the Hon'ble Apex Court that where statute requires an act to be done in a particular manner, the act has to be done in that manner alone (Para 5). Similar views have been expressed in the case of A.K. Roy Vs. State of Punjab [1986 (9) TMI 412 - SUPREME COURT] and CIT Vs. Anjum M.H. Ghaswala [2001 (10) TMI 4 - SUPREME COURT]. In fact a Constitutional Bench of the Hon’ble Supreme Court in Commissioner Vs Hari Chand Shri Gopal [2010 (11) TMI 13 - SUPREME COURT], considered the matter of exemption and also the pre-conditions for entitlement to avail such exemption. It held that the doctrine of substantial compliance cannot be pleaded if a clear statutory prerequisite which effectuates the object, and the purpose of the statute has not been met - The appellant is provided one more chance to produce the requisite documents in support of their claim for exemption and the provisions of the SEZ Act.
Extended period of limitation - HELD THAT:- The OIO has alluded to evidence showing enrichment by the appellant based on public money collected as taxes. However, since the matter is being remanded, this issue can also be examined afresh.
Cum-tax benefit - HELD THAT:- One of the allegations against the appellant is that they collected service tax from their customers but did not pay the same to the exchequer. This factual matter needs to be examined by the lower authority before granting the benefit of cum-duty valuation in line with the Tribunal decision in ‘Advantage Media Consultant’. This issue may also be examined by the Original Authority during remand proceedings and if necessary, the duty may be re-quantified suitably by giving the cum-tax advantage where ever due.
Conclusion - i) For service Tax Liability for 2011-12 and 2012-13, the threshold limit was not considered while determining the demand, warranting a remand for fresh determination. ii) For Renting of Immovable Property, due to the absence of the contract terms with Tamarai Hotels (P) Ltd., the Tribunal could not assess the nature of the service provided. iii) For Outdoor Catering and Restaurant Services, it is found that the orders from the adjudicating authority were cryptic and lacked analysis on how the contracts met legal requirements. iv) For inclusion of Sodexo, Swiggy, and Bakery Sales, there are no discussion on this matter in the original order, necessitating a remand for reevaluation of the taxable value. v) For supplies to SEZ Units, appellant was given another opportunity to produce necessary documentation to support their exemption claim. vi) For invocation of period of limitation, there are evidence of tax collection without deposit and non-compliance with statutory obligations, suggesting suppression of facts.
Appeal allowed by way of remand.
-
2025 (4) TMI 958
Levy of service tax - Dredging service - Extended period of limitation - penalty - HELD THAT:- As per the contract entered by the appellant with the Azhikkal Port, Kerala, the appellants were liable to pay 30% of the net sale price as consideration for the sand removed from the river. Fact being so, the actual contract is for sale of sand. Though it is admitted fact that by doing so, the appellant is helping the port and it amounts to 'dredging'. However, considering the contract and its terms and conditions, it cannot be held that the activity is amounting to service under 'dredging' services.
Regarding reliance of the Department in the matter of Reliance Michigan [2013 (7) TMI 236 - CESTAT MUMBAI], it is an admitted fact that for carrying out the dredging activities, the appellants were paid an amount of Rs. 8,36,58,054/- for the work. However, the issue raised by the appellant was that Mithi River is not a river but a nala and therefore services rendered by them does not amount to dredging of a river and accordingly, they are not liable to pay service tax.
As per the judgment of Hon'ble Apex Court in the matter of Grand Royale Enterprises Ltd. [2022 (9) TMI 273 - SC ORDER], when there is business transaction between two parties for sale of material, service tax should not be levied. It is also an admitted fact that there is no payment whatsoever from the port to the appellant towards any service and respondent could not have vivisected the activities and charge a certain portion of the same towards service as held by this Tribunal in the matter of CMS (l) Operations & Maintenance Co. P. Ltd. [2007 (5) TMI 74 - CESTAT, CHENNAI]. Fact being so, the activity cannot be considered as falling under the category of 'dredging' services, but it is only sale of sand and the expenses incurred by the appellant including 30% as cost of sand to the Azhikal port can be considered only as expenses for procuring and sale of sand. Fact being so, the demand made by the respondent is unsustainable.
Conclusion - The actual contract is for sale of sand. Though it is admitted fact that by doing so, the appellant is helping the port and it amounts to 'dredging'. However, considering the contract and its terms and conditions, it cannot be held that the activity is amounting to service under 'dredging' services."
Appeal allowed.
-
2025 (4) TMI 957
Nature of transaction - supply of tangible goods service or deemed sale - activity of hiring out equipment by the appellant - HELD THAT:- In the present case, it is not disputed that the present proceedings have been initiated on account of periodical Show Cause Notice issued for the period April 2009 to September 2012. The facts are identical and appellant has provided documentary evidence to the effect that VAT has been paid by them. Therefore, the impugned order is legally not sustainable.
Appeal allowed.
-
2025 (4) TMI 935
Eligibility of a club to claim refund of Service Tax paid on services provided to its members during the period from 01.04.2016 to 30.09.2016 - applicability of principles of mutuality - HELD THAT:- The Apex Court after considering various facts of the levy held that principle of mutuality applies between the club and its members vide decision reported in the case of state of West Bengal & other Vs. Calcutta Club Ltd. [2019 (10) TMI 160 - SUPREME COURT] - Hon’ble Supreme Court also held that post amendment in Finance Act, 1994 vide amendment carried out on 1st July, 2012, the definition of service contained in Section 65B(44) was still wide enough to include the ‘doctrine of mutuality’ at least in relation to incorporated clubs or association to claim exemption from Service Tax. The basis of principle propounded was that there cannot be a service and therefore the levy between the club and members, inter-se, as the member collectively constitute the club and cannot be stated to be providing service mutually.
There are force in the arguments advance by the Learned Commissioner (AR) who pointed out that the doctrine of mutuality cannot be extended beyond the scope of levy provisions and if the same is done absurd consequence shall follow. As a club will be able to claim tomorrow that all assets of its members are the assets of the club. The levy collected without force of law too is an asset of the member and enriching club by extending ‘principle of mutuality’ beyond levy will amount to interpreting law in a manner that promotes misappropriation of members funds as well as probably the “consumer Welfare Fund”. His argument that the prayer of the department to subject the refund claim to unjust enrichment must be allowed even if silence on this aspect was maintained by the appellate authority, while allowing the refund due to levy provision having been interpreted by the Hon’ble Supreme Court in the matter of Calcutta Club - The provision of unjust enrichment enjoins upon the person who collects a tax which is refunded as not being covered by lawful levy to either pay back the same to the person from whom the same was recovered or if it cannot be paid back for any reason then the department has the right to apply provisions of unjust enrichment and recover the amount which could not be paid back and credit it to the Consumer Welfare Fund etc. Any interpretation that can encourage misappropriation, defiance of rightful claims has to be eschewed.
In the instant case, it is not doubted that levy was collected from the members initially treating them as separate. Now even if levy is not sustainable on principle of mutuality, the examination of unjust enrichment for refund cannot be allowed to be ignored, as the same was applied by the Apex Court even for captive consumption within the same entity.
Conclusion - i) Refund claims must be subjected to the test of unjust enrichment to ensure that only those who bore the tax burden receive refunds, failing which amounts should be credited to the Consumer Welfare Fund. ii) The principle of mutuality does not apply post 01.07.2012 for incorporated clubs, and the levy of Service Tax on services provided by the club to its members is valid.
Appeal of Revenue Partly allowed.
-
2025 (4) TMI 888
Challenge to order dated 07.11.2024 issued by the Assistant Commissioner (Adjudication) under Section 73(2) of the Finance Act, 1994, concerning a demand for service tax on services categorized as 'Outdoor Catering' - exemption from service tax under N/N. 25/2012 and Circular No. 172/7/2013-ST. - HELD THAT:- The mandate of Section 73 of the Act, 1994 is very clear wherein the Central Excise Officer is required to determine the amount of service tax within six months from the date of notice where it is possible to do so, in respect of cases falling under sub-section (1) and within one year from the date of notice where it is possible to do so, in respect of cases falling under proviso to sub-section (4A).
The Bombay High Court in the case of UPL Limited [2023 (8) TMI 1152 - BOMBAY HIGH COURT] observed that even in absence of provisions of sub-section (4B) of Section 73 of the Act, 1994, the Authority could not have acted oblivious to the settled principle of law that a show cause notice would be required to be adjudicated within a reasonable time depending on facts of each case and consequently, quashed the show cause notice.
A perusal of the order impugned (Annexure-1) would reveal that the respondent no.2, while passing the order impugned, without providing for any justification in keeping the show cause notice pending for over 9 years, has passed the order impugned concerning to demand of service tax, which order passed by the respondent no.2 being in teeth of provisions of Section 73 (4B) of the Act, 1994 and the settled legal proposition, cannot be sustained.
Conclusion - The impugned order and the show cause notice quashed, due to the failure to comply with statutory adjudication timelines, without reaching a conclusive determination on the service tax exemption claim.
Petition allowed.
-
2025 (4) TMI 887
Eligibility for abatement of 75% as provided under N/N. 26/2012 dated 20.06.2012 - contracts entered only for GTA services - HELD THAT:- There is no truth in the allegation of the Department that the respondent had raised a single bill for transportation charges and Custom House Agent charges. In the instant case, it is observed that the respondent who issued consignment notes in terms of Rule 4B of the Service Tax Rules, 1994 ought to be regarded as the GTA service provider and accordingly, they are entitled to avail the 75% abatement in terms of N/N. 26/2012-S.T. dated 20.06.2012.
It is further noted that in respect of GTA service, the liability is on the recipient of service under reverse charge mechanism and wherever the respondent had rendered the service in the capacity of a goods transport agency, they have paid Service Tax after availing abatement. The respondent cited the specimen declarations submitted by the service recipients confirming payment of service tax on reverse charge. It is observed that under Section 68(2) of the Act read with Notification 30/2012-ST dated 20.06.2012, specified persons paying freight were liable to pay service tax on GTA services received.
In the instant case, the respondent- GTA was liable to tax only for providing services to non-specified persons, in which cases it duly charged and paid the applicable service tax.
The ld. adjudicating authority has given a categorical finding after examining all the contracts and records available before him. Thus, there are no reason to disagree with the above findings of the ld. adjudicating authority.
Conclusion - i) The GTA services rendered by the Respondent are distinct and independent from CHA services. ii) The Respondent is entitled to the 75% abatement on GTA services under Notification No. 26/2012-S.T. iii) The demands raised by the Department for the disputed periods are not sustainable and are barred by limitation to the extent applicable.
There are no infirmity in the impugned order dropping the demand of service tax raised in the notice - appeal of Revenue dismissed.
-
2025 (4) TMI 886
CENVAT Credit on Service Tax paid on cargo handling services provided by a third party (DPCL) in respect of imported coal sold on a 'high sea sales' basis - extended period of limitation - HELD THAT:- The appellant is engaged in trading of coal. In case of imported coal, sometimes the appellant sells whole or part of the consignment on ‘high sea sales’ basis. Even for the coal sold on 'High Sea sales' basis, the appellant has undertaken the responsibility of clearance of the imported cargo on behalf of the high sea sales purchasers.
Wen the appellant sold the imported goods on high sea sales basis, the required cargo handling services were provided by DPCL on their behalf. It is observed that against such services pertaining to high sea sales also, DPCL used to raise service bills upon the appellant which they paid and subsequently, the appellant availed CENVAT Credit of the Service Tax paid on the said amount.
The Cargo Handling charges were paid by the appellant to DPCL on the basis of the cargo handling services rendered by them to SUPL / appellant in the port area. Thus, we find that DPCL has rendered cargo handling services to the appellant and the appellant has availed the Cevat credit of service tax paid on the cargo handling services received by them. The high sea sales purchasers have no agreement with DPCL for clearance of the cargo in the port area - there are no merit in the observations of the ld. adjudicating authority in the impugned order that in respect of high sea sales purchasers, the cargo handling services have been provided by DPCL to the high sea sales purchasers, since the purchasers have no agreement with DPCL for rendering of cargo handling service in the port area.
The appellant has paid the said bills along with Service Tax to DPCL for the cargo handling services rendered and have availed CENVAT Credit on the basis of the bills so raised by DPCL to the appellant. Therefore, the appellant is eligible to avail CENVAT Credit and utilize the same for the purpose of payment of their output services. Thus, the impugned order disallowing the credit availed and utilized by the appellant is legally not sustainable.
Extended period of limitation - HELD THAT:- The demands have been raised on the basis of scrutiny of their records viz. CENVAT Credit documents and S.T.-3 Returns filed. Since the appellant have not suppressed any information from the Department, the demand raised in this case by invoking extended period of limitation is not sustainable.
Conclusion - i) The demand of Rs.5,10,82,374/- confirmed in the impugned order under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 73(2) of the Finance Act 1994, is set aside. ii) Since the availment of the above credit is found to be legal and proper, the demand of interest and imposition of penalty are set aside. iii) The demand of Service Tax of Rs.71,337/- along with interest of Rs.10,921/- confirmed in the impugned order, is upheld.
Appeal disposed off.
-
2025 (4) TMI 885
Challenge to penalty imposed and proper appropriation of the Service Taxes already payable - HELD THAT:- The appellant has been able to reconcile the confirmed duty demand vis-àvis the payments made by them under various headings. The reconciliation is properly backed up by documentary evidence placed by the appellant.
In the present case, it is not disputed that the appellant has paid excess service tax and which is clearly certified by the Chartered Accountant. Therefore, the beneficial provisions should be interpreted in such a way that the very benefit which is sought to be given to the assessee is not denied.
The appellant has fulfilled the requirement of completing the entire payment of Service Tax as per the confirmed demand - penalties set aside - appeal allowed.
-
2025 (4) TMI 826
Abatement or continuation of proceedings initiated against M/s. St. John Freight Systems Pvt. Ltd. - HELD THAT:- As the NCLT, Chennai has ordered for Liquidation of the Respondent and as no application as per Rule 22 has been made by the Official Liquidator appointed by the NCLT for continuance of the appeal, the appeal should abate in terms of Rule 22 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982.
As such the appeal gets abated in terms of Rule 22 of the CESTAT (Procedure) Rules, 1982 and also gets dismissed as being infructuous.
-
2025 (4) TMI 825
Liability to pay service tax on Annual Technical Support (ATS) fee on 100% of the invoice value as claimed by the Revenue as against the claim of the appellant that they are liable to pay only on 25% of the value - period of dispute is February 2007 to March 2009 - HELD THAT:- From the records, it is seen that the appellant has entered into software and support service agreement with the ICICI Bank Corporation Limited wherein at Clause 1.5 of the Agreement “updates” is defined as shall mean improved releases of the program which are generally made available at no additional cost to Infosys’ Licensees, who have purchases Annual Technical Support as specified in annexure-4- BANCS 2000 support services. Update shall not include any options or future products which Infosys’ licenses separately.
In the instance case also, it is seen that VAT is being paid only on deemed sale and clearly goods are not found to be part of the Annual Technical Support Service, hence, the question of abatement does not arise even though the sale is considered to be deemed sale and VAT is discharged by the appellant. The fact that VAT has been paid will not vitiate the fact that the services rendered by the appellant are not leviable to service tax as is held by the Hon’ble Supreme Court in the case of BSNL [2006 (3) TMI 1 - SUPREME COURT], wherein their Lordships observed 'It is, therefore, unnecessary to deal with the question of delivery of possession which is related only to situs and not to subject-matter of taxation which is a transfer of right to use goods. In the present case, as no goods element are involved, the transaction is purely one of service. There is no transfer of right to use the goods at all.'
In the instant case, it is also a fact that prior to and after the period in dispute, the appellant is paying service tax on the entire invoice value without disputing the fact that they are discharging VAT on part of the same value. Therefore, the question of not paying service tax on the entire value during the disputed period does not arise as the entire value is exclusively towards service element.
There are no reason to disagree with the Commissioner with regard to payment of service tax on the entire invoice value. Accordingly, same is upheld. However, the appellant has been approaching the department and agitating this issue through series of correspondences/communications from December 2005 onwards. Various correspondence has been placed on record from December 2005 to September 2009 and at no point of time, objections were raised by the department. The Commissioner in the impugned order though admits the fact that the appellant vide their letter dated 26.04.2007 had informed the Department that service tax was being discharged on 25% of the value, discarded the same on the ground that the letter nowhere mentioned that VAT was being paid and the appellant failed to file the agreements and these omissions indicate the intention to evade payment of tax.
Conclusion - ATS services provided by the appellant are subject to service tax on 100% of the invoice value, as they do not constitute a deemed sale under Article 366(29A) of the Constitution.
Appeal allowed in part.
-
2025 (4) TMI 824
Short payment of service tax - works contract service - demand raised under the category of ‘works contract service’ on the basis of comparison of their financial records along with Form 26AS and S.T.-3 Returns filed - penalty - HELD THAT:- No proper investigation has been conducted to find out as to the activity that was being undertaken by the appellant and as to whether the appellant have paid Service Tax on that activity or whether the said activity was exempt from the levy of Service Tax. Therefore, the demand against the appellant raised merely on the basis of financial records is not sustainable, since the Revenue has not adduced any supportive evidence in support of its allegations.
The appellant was engaged in the activity of construction of dams. The said activity was related to transmission and distribution of electricity, which is exempt as per Notification No. 45/2010-S.T. dated 20.07.2010, Notification No. 11/2010-S.T. dated 27.02.2010 and Notification No. 25/2012-S.T. dated 20.06.2012. Thus, on the said activity, the appellant is not liable to pay Service Tax.
Moreover, wherever the appellant provided services, being a sub-contractor, the main contractor has deducted the Service Tax component from the payments made to the appellant and paid the said Service Tax in the Government treasury, on behalf of the appellant. In these circumstances, the demand of Service Tax is not sustainable against the appellant.
Penalty - HELD THAT:- Since no demand of Service Tax is sustainable against the appellant, no penalty can be imposed on the appellant.
Conclusion - The demand for Service Tax based solely on financial records and Form 26AS is not sustainable. Without corroborative evidence, such demands do not hold.
The impugned order is set aside - appeal allowed.
-
2025 (4) TMI 823
Calculation of service tax - inclusion of salary, PF, and other reimbursements in the taxable value under Section 67 of the Finance Act, 1994 - Extended period of limitation - HELD THAT:- The issue as to whether salary, PF, etc. are includable in taxable value in terms of 67 of the Finance Act, 1994 is no more res- integra. The Bangalore Tribunal in the case of Kou-Chan Knowledge Convergence Pvt. Ltd. Vs. CST, Bengaluru [2024 (9) TMI 1249 - CESTAT BANGALORE] has gone into the details and has held that 'the administrative charges collected in providing Manpower Recruitment and Supply Agency Service, is only to be part of the gross taxable value and all reimbursable expenses, salary, bonus, etc. paid to the employee by the appellant and collected from their clients cannot be included within the scope of gross taxable value under Section 67(1)(i) of the Finance Act, 1994 during the relevant period from October 2007 to March 2012.'
In the present case, the amounts received by the appellant on account of salary, PF, etc. would not be exigible to Service Tax payment. They are required to pay Service Tax only on the net consideration received by them from their clients.
Extended period of limitation - HELD THAT:- Since the appellant has paid the Service Tax on their commission amount after excluding the salary and reimbursements and they were filing their ST-3 Returns, no case has been made out towards suppression by the Revenue. Therefore, the confirmed demand for the extended period is not legally sustainable on account of time bar.
Conclusion - i) The reimbursements for salary and related expenses are not includable in the taxable value for service tax purposes. ii) The extended period for demand is not applicable in the absence of suppression.
The impugned order is set aside and the appeal stands allowed.
........
|
9911796707
