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Service Tax - Case Laws
Showing 61 to 80 of 181 Records
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2018 (1) TMI 1092 - CESTAT NEW DELHI
N/N. 18/2009-ST dated 7.7.2009 - services used for export of goods - denial on the ground that the conditions appended to the said notification have not been complied with by the appellant - Held that: - N/N. 18/2009-ST dated 7.7.2009 was issued with the objective of exempting taxable services used for export of the goods. Once the assessee satisfies the department that the goods were in fact exported and the taxable services were used/utilized for such exportation, the substantive part of the notification is considered to be satisfied and in such eventuality, the other conditions laid down in the notification should be construed as mere procedural in nature - Tribunal in the case of M/s Radiant Textiles Ltd. [2016 (10) TMI 242 - CESTAT CHANDIGARH] has held that the appellant has not produced adequate documents/records to demonstrate entitlement of the benefit of notification dated 7.7.2009.
Since, the responsibility entirely lies with the appellant to prove that the goods were in fact exported by utilising the taxable services, it has to produce adequate documents, which I find were not produced at the time of adjudication of the matter - the matter needs reexamination.
Appeal allowed by way of remand.
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2018 (1) TMI 1091 - CESTAT NEW DELHI
Refund claim - N/N. 17/2009-ST dated 07.07.2009 - exemption is to be claimed by way of filing refund claims - Jurisdiction - Held that: - when the Revenue raises objection regarding jurisdiction, it is not mentioned what will be the correct jurisdiction. The respondent-assessee were registered in Katni Range under the jurisdiction of Assistant Commissioner, Jabalpur who decided the refund claims. There is no error in jurisdiction.
Refund claim - Transport service - Held that: - the respondent-assessee transported the goods directly to the port through different modes of transport as per their convenience and as such the claim for refund was found to be admissible.
Mis-match of documents - Held that: - There is a provision of self certification or certification by Chartered Accountant about co-relation and nexus of input services with the exports. It is clear that in present appeals the Revenue had not brought out a specific case of any mis-match in the documents supporting the claims.
Refund claim - services provided by port or person authorised by the port - Held that: - There is no dispute that services received by the respondent are falling under category of port services. The tax paid on such services has not been disputed. Hence, it is not open to the Revenue to contest that such tax paid on port services will not be eligible for exemption/ refund in terms of Notification No.17/2009-ST.
Appeal dismissed - decided against Revenue.
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2018 (1) TMI 1090 - CESTAT NEW DELHI
Classification of services - certain courses conducted by the appellant - whether classified under Commercial coaching and training services or not? - Held that: - no College or Institute issues independently any degree. It is university, who are recognized by UGC, who can issue degree. In the present case, the impugned order falls in error in insisting that the Institute itself should issue a degree. We find no force in such findings. Accordingly, the appellants are not liable to pay service tax on such courses.
Courses conducted by the appellant in collaboration with Ballarat University, Australia - Held that: - The AIU is mandated to have recognition of equivalence degrees issued by the foreign university, as stipulated by the Ministry of Human Resources Development, Govt of India - it cannot be accepted that courses conducted by the appellant result in issue of degree or diploma which are recognized by the law for the time being in force in India and the in the absence of categorical evidence, the conclusion made by the lower authorities cannot be interfered with.
Penalty - Held that: - the issue is one of interpretation of legal provision. The appellant have no malafide intention not to pay the taxes in time - penalty set aside.
Appeal allowed in part.
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2018 (1) TMI 1089 - CESTAT NEW DELHI
CENVAT credit - exempt services - Rule 6(3)(ii) of the Cenvat Credit Rules, 2004 - dispute in the present appeal relates to the application of Rule 6 of the Rules to the effect that the assessee-Appellants should maintain separate accounts for usage of credit availed input services for taxable output services and exempted output services - Held that: - reversal of credit amount attributable to exempted services, in any case, is to be confirmed by verification of documents. The claim made by the assessee-Appellants requires verification by the original authority - appeal allowed by way of remand.
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2018 (1) TMI 1088 - CESTAT NEW DELHI
Classification of services - transportation of goods - whether taxable under Cargo Handling Service or Goods Transport Agency Service? - Held that: - Since the appellant, in this case, has not specifically objected to the findings of the adjudicating authority that it has not provided two categories of services, we are of the view that the services provided by the appellant should merit consideration as cargo handling service.
Extended period of Limitation - Held that: - suppression, misstatement etc. cannot be levelled against the appellant, justifying invocation of the extended period of five years for issuance of the SCN - demand upheld for normal period only.
Penalty - Held that: - appellant entertained the bonafide belief that the services provided by it will fall under the GTA service - the penalty imposed in the impugned order should be viewed in terms of Section 80 of the Finance Act, 1994, and set aside.
Appeal allowed in part.
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2018 (1) TMI 1087 - CESTAT NEW DELHI
Demand of service tax - Manpower Recruitment Supply provided to Group Companies - Held that: - Since the appellant is not a professionally manpower supply agency and merely sharing the staff amongst the group companies and got the reimbursement of cost from such associate company, the same should not be considered as rendering of the taxable service for the purpose of levy of service tax. Further, there is no relationship between the appellant and its associated company as “client” and a “service provider”. Thus, in absence of providing of any service to the clients as contemplated in the definition of taxable service, the activities of the appellant will be outside the scope and purview of Service Tax under the category of manpower recruitment or supply agency service.
CENVAT credit - demand for non-maintenance of separate records in terms of Rule 6 (3) ibid - Held that: - own trading of securities cannot be termed as exempted service and accordingly, the provisions of rule 6 (3) ibid will not applicable for maintenance of separate records/accounts. The present finding is only on this limited aspect of application of Rule b (3). The basic issue as to whether the Cenvat Scheme itself is applicable to such trading has not been a dispute examined in the proceedings.
Penalty on Cenvat Credit of Input Services reversed during adjudication - sub-rule (3) of Rule 15 ibid - Held that: - since the dispute relates to the period 2005-06 to 2009-10, which is prior to the date of amendment of Rule 15 ibid, the rigour of said amended sub-rule will not have any application for imposition of penalty for irregular availment or utilisation of Cenvat Credit, by reason of fraud, collusion etc. - penalty cannot be sustained.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1058 - CESTAT CHENNAI
Business Auxiliary Service - business of canvassing advertisements for publications like Daily Thanthi, Rani Weekly and getting fixed retainership fee for their work - Held that: - the tax entry with reference to advertising agency and also auxiliary activities of space selling has no relevance to the activities of the appellant in the present case. The appellants are engaged in improving advertisement revenue of the client. In other words, they are promoting the services of clients. Such service on the part of the client is exempted by itself will not make the appellant as not providing any taxable service - appellants are liable to tax under 'Business Auxiliary Service'.
Time Limitation - Held that: - the issue involved is certainly one of interpretation. It is also to be noted that appellant acquired business from M/s.Sovereign Media marketing (P) Ltd. who was never subjected to service tax for the same activities. This admittedly led to bonafides of the appellant - extended period and penalty cannot be invoked.
Appeal allowed in part.
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2018 (1) TMI 1057 - CESTAT CHENNAI
Management Consultancy Service - dispute in the present case relates to some part of their activities which are essentially with reference to giving opinion, updates on tax, legal position, filing of tax returns under various statutes relating to Income Tax, Service Tax, Sales Tax etc. under various auxiliary services with reference to compliance of these tax laws by the client - Held that: - The legal assistance either for direct planning or compliance is within the ambit of various tax laws has no direct relevance to working or improving any organization of the client in order to avoid penal consequence. It may indirectly keep the organization within the ambit of legal promotion work for their further business. This by itself will not make the consultancy or advisor in tax matters management consultant - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1056 - CESTAT MUMBAI
Demand of Service Tax, interest and imposition of penalties under Sections 76, 77 & 78 of the Finance Act, 1994 - erection, commissioning and installation services - benefit of N/N. 1/2006 - Held that: - reliance placed in the case of COMMR. OF SERVICE TAX, BANGALORE Versus LINCOLN HELIOS (INDIA) LTD. [2011 (4) TMI 586 - KARNATAKA HIGH COURT], where it was held that it cannot be said that there is any willful attempt to evade the payment of tax on the part of the assessee. It is in the nature of transitional period and the benefit of doubt that existed in the mind of the assessee is to be given to him - the appellants are liable to pay service tax on the service aspect of the transaction.
Extended period of limitation - Held that: - A perusal of the impugned order says that it indeed does not deal with the issue of limitation raised by the appellant and consequently it fails to deal with the imposition of penalties specifically - the impugned order is not a speaking order.
The matter is remanded to the Commissioner (Appeals) to decide afresh - appeal allowed by way of remand.
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2018 (1) TMI 1055 - CESTAT CHENNAI
Adjustment of remittance of wrong assessee code / registration number - denial on the ground that there is no provision for said adjustment under the Finance Act, 1994 - Held that: - The Board is issued a Circular dated 20.5.2003 wherein it is clarified that the assessee shall not be asked to pay service tax again if he has paid service tax under a wrong accounting code - reliance placed in the case of M/s. Sahara India TV Network Versus C.C.E. & S.T., Noida [2015 (10) TMI 2037 - CESTAT NEW DELHI], where Tribunal had set aside the demand as well as the penalties imposed directing the adjudicating authority to make necessary adjustment - impugned order cannot sustain - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1054 - CESTAT CHENNAI
Whether the appellant can be allowed to adjust the excess paid service tax to the liability payable for the subsequent months? - Held that: - The Tribunal in the case of General Manager (CMTS) Vs. Commissioner of Central Excise, Chandigarh [2014 (8) TMI 589 - CESTAT NEW DELHI], where it was held that if excess payment of tax in a month is not on account of reasons involving interpretation of law, taxability, classification, valuation or applicability of exemption notification and is purely on account of inability of the assessee to exactly determine the total amount collected during the month against the bills raised, as a result of which he had determined his tax liability or estimation basis, the excess amount of tax paid during the month can be adjusted against his tax liability during other months and in this regard, there cannot be any monetary limit - the demand raised on this ground is unsustainable and requires to be set aside.
CENVAT credit - service tax paid on advertisement on MTC buses - Held that: - As per Rule 3 of CENVAT Credit Rules, credit can be availed on service tax / duty when the documents evidence the payment of the same. Since the documents on which credit has been availed does not evidence the payment of service tax, we are of the view that the credit availed is incorrect - demand upheld.
CENVAT credit - rent-a-cab service - Held that: - During the relevant period, prior to 1.4.2011, the definition of input services included the words activity relating to business . Therefore, the definition had wide ambit and had included the services namely rent-a-cab service - In Commissioner of Central Excise, Raipur Vs. Beekay Engg. & Castings Ltd. [2009 (6) TMI 96 - CESTAT, NEW DELHI], the said services have been held to be eligible for credit - the disallowance of credit is unjustified.
CENVAT credit on capital goods imported during the period January 2007 - Held that: - According to Rule 4(2) of CENVAT Credit Rules, 2004, credit can be availed not exceeding 50% of duty paid on capital goods in the same financial year and the balance amount of CENVAT credit has to be availed in the subsequent year. Therefore, availment of entire credit in the same financial year is irregular - The appellant has not contested the same and therefore the demand of service tax under this category is sustained.
Penalties - Held that: - The ld. counsel has explained that the appellant had not rendered any sponsorship service and they had only extended donations to orphanage and charity purpose and it was wrongly accounted in their books of accounts as sponsorship service. Taking into consideration these aspects, the penalties in regard to these issues are unwarranted and requires to be set aside which we hereby do.
Appeal allowed in part.
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2018 (1) TMI 1053 - CESTAT CHENNAI
Non-payment of service tax - extended period of limitation - Architect services - It was alleged that appellant was charging and collecting service tax from the clients but had not remitted the same to the department - Held that: - there definitely was lack of clarity on the taxability of the impugned services during the period of dispute - penalty cannot be imposed.
In addition to the directions for reworking of the demand of Annexure-II & III, as ordered by the Commissioner (Appeals), the de novo adjudicating authority will also look into other contentions of the appellant that they have in fact not collected any tax from their clients that as per the settled law, there cannot be any service tax liability in respect of tax already discharged by the sub-contractor and also in respect of reimbursable expenses.
Appeal allowed by way of remand.
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2018 (1) TMI 1052 - CESTAT CHENNAI
Business Auxiliary Services - It appeared to the department that appellants are providing services of Promotion or Marketing or Sale of Goods produced or provided by or belonging to various clients, i.e. tea factories in the auctions conducted at Coonoor, which fall under taxable service of Business Auxiliary Service - benefit of N/N. 13/2003 - case of appellants is that they have acted as commission agents and therefore are eligible for exemption from payment of service tax - Extended period of limitation.
Held that: - Notification No. 13/2003-ST was amended with effect from 9.7.2004 vide Notification No. 8/2004-ST specifically to expand exemption to commission agent services in relation to sale and purchase of agricultural produce - Vide Notification No. 19/2005-ST dated 7.6.2005, the clause (i) to Explanation to Notification No.13/2003-ST which gave the definition of Commission Agent was omitted.
The appellants, no doubt are called brokers in terms of the Coonoor Tea Trade Association Rules. However, they do not merely cause the sale of goods on behalf of their clients, the tea sellers, for a consideration that is based on the quantum of the sale. They are also engaged in drawing samples, undertaking printing of catalogues, distribution of samples to their buyers and conduct of auction in accordance with the procedure laid down by the Coonoor Tea Trade Association. Upon completion of the auction, the sales consideration is received not by the sellers but by the appellants. Thereafter, the appellant themselves issue delivery orders which enables the buyers to take delivery of the tea from the warehouse. They do the billing work and collection of sale proceeds on behalf of their clients. The appellants also collect lot money not only from their clients but also from the buyers. Appellants also make advances to their clients in anticipation of receipt of goods for sale. They are also engaged in activity of collection and payment of tax namely sales tax on behalf of their clients. The appellants promote the sale of the tea produced by their clients by sending out samples to their prospective buyers advertising by way of printing and distribution of catalogues. It therefore appears to reason that this wide gamut of activities of the appellant would go far beyond the scope of a commission agent since the services rendered by them are not restricted only to sale of goods on behalf of the sellers for consideration, which is the main edifice of the definition of commission agent.
Notwithstanding the fact that the appellant may have been appointed as a broker, that by itself is only a requirement of Coonoor Tea Trade Association. Though they are called as broker under the Association rules that will not enable the appellant to claim that they are only commission agent for the purpose of section 65(19) ibid. The services performed by the appellant is thus promotion and sale of goods produced or provided or belonging to their clients and thus fall within the ambit of section 65(19)(i) of the Act.
The services provided by the appellant will not fall either in the category of commission agent under section 65(19) or as a commission agent under Notification No. 13/2003-ST or for that matter under auction of property service under section 65(7a) but only under Business Auxiliary Service for promoting sale and marketing of goods of the tea sellers as falling under section65(19)(i) of the Act. The services rendered by appellants for private sales also being of the same genre, they would also fall under the ambit of section 65(19)(i) only.
Penalty - Held that: - the whole dispute has been based on interpretation as to classification of their services. This being so, we find that there is a strong case for setting aside the penalties - penalties set aside.
Appeal allowed in part.
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2018 (1) TMI 1051 - CESTAT NEW DELHI
Penalty - non-payment of service tax - GTA Service - Reverse charge mechanism - appellant is a cooperative society, established with objective of assisting the farmers for selling their agricultural produce at the MSP fixed by the GovernmentHeld that: - there was a bonafide belief for non-payment of Service Tax within the stipulated time, in view of the Circular No.89/7/2006-ST dated 18/12/2006 and Notification No.04/2010 dated 27/02/2010 regarding payment of Service Tax on GTA service under reverse charge mechanism - the benefit of Section 80 of the Act should be available to the appellant for non-imposition of penalties under Section 76,77 and 78 of the Act.
This Tribunal in appellant own case M/s. Chhattisgarh State Co-Operative Marketing Federation Ltd. Versus Commissioner of Central Excise [2016 (11) TMI 788 - CESTAT NEW DELHI], has extended the benefit of Section 80 of the Act on the ground that the appellant being a statutory Government body, no malafide can be attributed to evade payment of Service Tax. Thus, non-payment of tax within the prescribed time frame was due to the bonaife belief that the same was not payable by the cooperative society.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1020 - CESTAT NEW DELHI
Commercial training or coaching centre Services - exemption under N/N. 24/2004-ST - appellant /assessee were conducting courses in International Hotel Management in collaboration with the Thames Valley University, UK - whole demand proceedings resulting in the two impugned orders cover two periods viz. prior and post 2008 - Held that: - for the period prior to 2008, the courses conducted by the appellant in collaboration with the Thames Valley University, UK in international hotel management is covered by exemption N/N. 24/2004. No service tax liability can be fastened on the appellant for this period.
Post 2008, the appellants discontinued the course in collaboration with the Thames Valley University, UK. They have started a 3 year course of BA (Hons) in International Hospitality Administration approved by IGNOU, leading to an award of degree by IGNOU, which is, admittedly, a recognized open university under UGC Act - for the period, during which the appellants were conducting courses results in the award of degree by a recognized university, they are not covered by the scope of “Commercial Training or Coaching Centre”.
Demand set aside - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 1019 - CESTAT NEW DELHI
Demand of service tax - certain fees/royalty paid by the assessee-Appellants to American Petroleum Institute, USA (API) for grant of certificate to their product, so that they can use their monogram ‘API’ on their final product - reverse charge mechanism - Held that: - Admittedly, the nature of service received by the assessee-Appellants are rightly covered under ‘Intellectual Property Right Service’. This is not seriously contested by the assessee-Appellants also. However, the tax liability confirmed under ‘Technical Testing & Certification Services’ cannot be sustained as the assessee-Appellants paid fees/royalty for use of ‘API’ monogram on their product as a sign of quality. The amount paid also categorised as fees/royalty - we uphold the tax liability on the assessee-Appellants on reverse charge basis on such consideration paid by them to the American Petroleum Institute, USA. The said service is taxable as Intellectual Property Rights (IPR).
Time Limitation - Held that: - the first notice was issued on 08.01.2010 on the same activity and the second was issued on 22.11.2012, however, with a different classification - there is no justification invoking the extended period in the second show cause notice.
Appeal allowed in part.
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2018 (1) TMI 1018 - CESTAT ALLAHABAD
Whether the appellant's request for re-quantification of tax demand in respect of “Air Travel Agents Services”, in terms of Rule 6(7) of the Service Tax Rules, 1994, is required to be accepted or not?
Held that: - The basic requirement is that once exercised, the same is to be applied uniformily in respect of all the transactions in a particular Financial Year. The appellant in the present case are seeking to exercise the said option, to be applied equally and uniformily in respect of the entire transaction. In as much as, they were not paying any Service Tax, the question of exercising the said option did not arise during the relevant period and the appellant’s request for exercising the said option at this point of time, when the tax is being confirmed against them, is proper and justified.
The matter needs remand for re-quantification of the assessee’s tax liability by extending them the benefit of Rule 6(7) of the Service Tax Rules, 1994 - appeal allowed by way of remand.
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2018 (1) TMI 1017 - CESTAT ALLAHABAD
Business Auxiliary Services - liability to tax - case of appellant is that no service tax liability would fall upon them, inasmuch as no service activity was undertaken by them and the entire contract was further contracted to M/s Ram Lalloo Civil Construction who might have paid the service tax - Held that: - the said does not stand examined by the lower authorities - Inasmuch as there is no clear finding of the lower authorities on the said issue, it is deemed fit to set aside the impugned order and matter remanded to the Original Adjudicating Authority for examination of the said plea of the appellant - appeal allowed by way of remand.
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2018 (1) TMI 1016 - CESTAT ALLAHABAD
Refund of unutilized CENVAT credit - N/N. 27/2012-CE (NT) dated 18/06/2012 - denial on the ground of premises not registered - Held that: - Hon'ble Karnataka High Court decision in the case of M Portal India Wireless Solutions P. Ltd. Versus Commissioner of Central Excise, Bangalore [2011 (9) TMI 450 - KARNATAKA HIGH COURT], where it has been stated that registration of the premises is not necessary for grant of refund - the Hon'ble Karnataka High Court decision is fully applicable to the disputed issue - appeal dismissed - decided against Revenue.
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2018 (1) TMI 1015 - CESTAT NEW DELHI
Refund claim - export of services - case of appellant is that business auxiliary service exported by it falls under Rule 3(1) (iii) of the Export of Service Rules, 2005 and accordingly, no service tax was payable on export of such service - denial of refund on the ground that the services provided to the overseas client were used/ consumed within India and as such, services should not be considered as export of service - unjust enrichment - Held that: - The Tribunal, in the case of Blue Star Ltd. [2014 (12) TMI 25 - CESTAT MUMBAI], by relying on the decision in the case of Paul Merchants Ltd [2012 (12) TMI 424 - CESTAT, DELHI (LB)], has held that since the services were provided for the benefit of the overseas service receiver, irrespective of the place of performance of service, the same should be considered as export for the benefit of non-payment of Service Tax under business auxiliary service - refund cannot be denied.
Unjust enrichment - Held that: - the appellant under reverse charge mechanism had deposited the service tax into the Government Exchequer and there was no scope on its part to collect such tax from the overseas clients - the doctrine of unjust enrichment is not applicable in this case, for denial of the refund benefit.
Appeal allowed - decided in favor of appellant.
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