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Service Tax - Case Laws
Showing 61 to 80 of 133 Records
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2014 (3) TMI 544 - CESTAT MUMBAI
Penalty u/s 77 - Applicant had already deposited 25% of the penalty under Section 78 - Held that:- The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act. Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid - Therefore, penalty u/s 77 is set aside - Following decision of CCE vs. Adecco Flexione Workforce Solutions Ltd. [2011 (9) TMI 114 - KARNATAKA HIGH COURT] - Decided in favour of assessee.
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2014 (3) TMI 543 - CESTAT MUMBAI
Management Consultancy Service or not - appellant was streamlining distribution, C & F arrangements, arranging bank and finance, rearranging human resources department, pay roll function and overall restructuring of general administration etc - Demand of service tax - Held that:- The above mentioned terms of the agreement clearly show that the activities undertaken by the appellant is adviser in nature. The definition of the Management Consultancy Services includes any person who is engaged in providing any service, either directly or indirectly in any manner and also includes rendering any consultancy or technical assistance, relating to conceptualizing, devising, development, modification, rectification or upgradation of any working system of any organization. The clause 2 of the agreement clearly shows that he activities are advisory in nature and therefore there is no infirmity in the impugned order - Decided against assessee.
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2014 (3) TMI 542 - CESTAT MUMBAI
Interior Decorator service - Scope of taxable service - Section 65(59) - drawing and design is supplied to the applicants for execution of work contract - Held that:- As per the definition of scope of interior decorator as per the Finance Act. Is in respect of advice, consultancy or technical assistance relating to complying drawing or design or number of space. In the present cased drawing and design is supplied to the applicants for execution of work. The copies of the work orders which are produced by the respondents the work is in respect of civil work, electrical work etc - execution of civil work, sanitation work, plumbing, electrical work and wooden furniture is not covered under the scope the interior decorator service. As there is no evidence on record to show that respondents are advicing by way of consultancy or by way of technical assistance, in respect of planning or designing of the space, rather applicants are undertaking the other work as per the design and drawing supplied - Decided against Revenue.
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2014 (3) TMI 541 - CESTAT KOLKATA
Waiver of pre-deposit of service tax - Penalty u/s 76, 77 & 78 - Appellant had rendered taxable services to NTPC, at Bhagalpur, Bihar, but failed to discharge service tax on the said services - Held that:- Advocate has fairly accepted that the issue of wrong calculation of demand was not raised before the adjudicating authority and hence could not be considered and verified. The Ld. A.R. for the Revenue has no objection in remanding the case for re-verification of aforesaid facts. However, he has pleaded that the appellant should be put into terms. Accordingly, in the interest of justice, the appellant is directed to deposit an amount of Rs.1.00 Lakh (Rupees One Lakh only) within a period of eight weeks from today and report compliance directly to the adjudicating authority - Matter remanded back with order of pre deposit.
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2014 (3) TMI 511 - CESTAT NEW DELHI
Business Auxiliary Service - bullet proofing of vehicle - Exemption Notification No. 12/2003-ST dated 01.07.2003 - element of distinct sale of goods - First model of operation - Held that:- Prima facie no basis for reading down the Section 65(19). Further, whether the service aspect of the transaction which in another aspect may also amount to a sale, is within the province of the federal legislature, is an issue that should appropriately be considered at the final hearing of the appeal. Suffice to it notice for the nonce that the transaction covered by the first model, prima-facie fall outside the scope of Section 65(19). We consider it to be so since in that model of operation the petitioner purchases the vehicle and therefore become the owner and the bullet proofing value addition on such vehicles would amount to a service to self. There is no activity of processing of goods on behalf of another since the vehicles belong to the petitioner and the value addition is done to its own vehicles. - Stay granted.
Second model of operation - vehicles in issue are supplied by the customer and on such vehicles bullet proofing is done by the petitioner - held that:- this activity amounts production or procuring of goods on behalf of another. - It is also not clear from the order whether the petitioner furnished documentary proof in support of its claim for exclusion of the value of the goods transferred to the customer in the process of bullet proofing - stay denied for second model of operation.
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2014 (3) TMI 510 - CESTAT NEW DELHI
Classification of service - Manpower supply or Cargo Handling Services - Demand of service tax - Penalty u/s 76, 77 & 78 - Interest u/s 75A - Held that:- matter referred to larger bench with the following questions:
(i) Whether the appellant has to be rejected on merits as held by learned Member (Technical) or the same is required to be remanded for reconsideration as held by Member (Judicial).
(ii) Whether the invocation of longer period of limitation has to be upheld as observed by the learned Member (Technical) or the matter is required to be remanded for deciding the issue on merits afresh as held by Member (Judicial)
(iii) Whether the penalty is to be imposed under section 78 has to be upheld to pay 25% of the same as held by the Learned Member (Technical) or the same is required to be decided afresh in the remand order.
(iv) Whether the penalty is to be imposed under section 75A and 76 is to be set aside and penalty under section 77 is to be upheld as observed by the Learned Member (Technical) or penalty have to be re-adjudged by the adjudicating authority in the de novo proceedings.
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2014 (3) TMI 509 - CESTAT NEW DELHI
Denial of refund claim - Notification No. 17/2009-ST. - relationship between the port services and royalty charges - Bar of limitation - CHA Services - Held that:- The refund application had been filed on 26/6/12 but if the limitation period of one year is counted from the date of ‘let export’ order, which is the relevant date in terms of Clause 2 (f) of the Notification, the refund claims for this amount has obviously been filed after the expiry of one year and, therefore, the rejection of the refund claim of Rs. 8,890/- is upheld.
When the department has accepted service tax on these amounts under port services, at the time of considering refund of the service tax paid on port services to the service recipient, the Jurisdictional Central Excise authorities cannot seek to reopen the assessment of service tax at the end of the service provider. Therefore, the impugned order rejecting the refund claim of Rs. 1,33,351/- of service tax on the port services on the ground that there is no relationship between the port service and royalty charges, is not correct.
Though the invoices of the storage and warehousing service provider do not mention the shipping bill number, the storage and warehousing charges has been charged by the CHA from the appellant and the CHA in the invoices issued by him to the appellant has given complete details of the shipping bill. Therefore, it is wrong to say that the invoices issued by the storage service provider cannot be linked to the shipping bills under which the goods had been exported.
While the bank realisation certificate does not mention the shipping bill number, it does mention the invoice number and date and the shipping bills filed by the appellant do mention the export invoice number. Thus, the bank realisation certificate can be linked to the shipping bills under which the exports had been made. Therefore, rejection of refund claim of Rs. 92,125/- on the ground mention in the impugned order is not correct - Decided partly in favour of assessee.
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2014 (3) TMI 508 - CESTAT CHENNAI
Valuation - Advertisement Agency Service - applicant is paying service tax on the 15% of the commission retained by him. The present dispute is about 85% of the amount paid to the print media and on which Revenue is demanding service tax. - Held that:- In the case of commission earned for selling advertisement space in print media, the Tribunal has already decided that service tax is payable only on the service rendered by the intermediary, which the applicant has already paid. Taxing the activity of the print media in the hands of the intermediary is not consistent with provisions of section 67 of the Finance Act 1994 and the charging section which does not provide for taxing services provided by print media - In the matter of materials prepared as per orders of the clients it is fairly clear that goods were sold for which, he has already paid VAT and in such case the applicant was not involved in conceptualizing and designing the advertisement. So it is not be proper to order any pre-deposit on this count at this stage.
In the case of hoardings, the applicant explained as to how in some cases service tax was paid and in some cases service tax was not paid as it appears from the Bills. The situation appears to be that where only sale was involved service tax was not paid and where the applicant provided space, either space belonging him to him or taken on lease by him, for display, service tax was paid, though such details has not been furnished before the adjudicating authority - Stay granted.
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2014 (3) TMI 479 - CESTAT CHENNAI
Cenvat Credit on GTA service - input services - delivery upto the place of customer - Held that:- place of delivery is the customer's works and the freight charges was also included. - freight was paid by the appellant - The adjudicating authority observed that the insurance policy has not mentioned in particular transportation to a buyer and which is only open and general in nature - There is no force on such finding - There is no requirement that each consignment would cover separate policy. In other words, it is required that insurance policy must be in the name of appellant to claim the benefit of policy in respect of transportation of goods. - the goods were delivered at the customer's premises. - there is no reason to deny the CENVAT credit on GTA service. - Decided in favor of assessee.
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2014 (3) TMI 477 - CESTAT CHENNAI
Restoration of appeal - Condonation of delay - Mistake in interpretation of impugned order - Held that:- Assessee have already paid the amount of service tax of ₹ 1,18,320/- and ₹ 1,28,272/- along with interest and therefore they were under the impression that the impugned order has upheld the demand of service tax and interest which they have already paid - applicant is a small entrepreneur registered with the service tax authorities and wrongly understood the word ‘appeal allowed as above’ as mentioned in the impugned order. It appears from the operative portion of the order that the applicant failed to understand the implications of this order as they have already deposited duty and interest, which they were not contesting. After considering the facts and circumstances of the case and the operative portion of the order, it is appropriate to condone the delay of 169 days involved in the filing of the appeal and we do the same - Delay condoned.
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2014 (3) TMI 476 - CESTAT CHENNAI
Waiver of pre-deposit - Photographic Service - Supply of tangible goods - business of supplying equipment for cinematography on hire basis to various agencies which shoot cine film - Held that:- this is a dispute which can be argued on either side and this requires detailed examination at the time of final hearing - Conditional stay granted.
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2014 (3) TMI 454 - CESTAT AHMEDABAD
Payment of full rate of service tax on works contract and availing CENVAT Credit on inputs and input services - Valuation under Service Tax (determination of value) Rules 2006 - Whether the appellant are correct in paying full rate of Service tax @ 12.36% or 10.30% (including education cess and SHE cess) and avail cenvat credit on the inputs and inputs services utilised for rendering of ‘Works Contract Services.’ - Held that:- Service Tax liability is to be discharged on the gross amount charged by the service provider. In the case in hand there is no dispute as to the value or gross amount which needs to be considered for discharge of service tax liability. It is admitted by both sides that the value of the works contract executed by the appellant is the value on which the appellant has discharged full rate of service tax.
While applying provisions of 67(4) necessary implication is that the value for discharge of service tax liability needs to be determined by referring to service tax valuation rules. In the case in hand since there is no dispute as to the gross value charged by the appellant there is no necessity to take recourse for determining the value under Service Tax (determination of value) Rules 2006.
Appellant is discharging full Service Tax under the category of Works Contract Service using Inputs and Input Service are used for rendering of ‘output services’; on reading of provisions of Rule 2(l) of the cenvat credit rules 2004 it would indicate that assessee is eligible avail to cenvat credit of Inputs and input services which are used to provide ‘output service’ which would include ‘setting up’ of a factory premises. In the case in hand, it is undisputed that the appellant had provided output services which covered by works contract for setting up of plant, it has to be held that cenvat credit availed by the appellant is in consonance with the provisions of the Cenvat Credit Rules 2004. We also hold that the discharge of Service Tax liability at full rate by the appellant by applying provisions of section 67 of the Finance Act 1994 cannot be called in question by the Revenue - Decided in favour of assessee.
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2014 (3) TMI 439 - CESTAT NEW DELHI
Penalty u/s 76, 77 & 78 - Interest u/s 75 - Failure to obtain registration - real estate agent service - Held that:- prima-facie in the show cause notice as well as in the adjudication order, the authorities have clearly categorised the conduct of the petitioner in failing to obtain registration; in filing returns; and in remitting service tax on the two transactions adverted to, as inter alia in violation of the provisions of the Act with in intent to evade tax. On a true and fair construction of the provisions of Section 65(88) read with Section 65(105)(v) of the Act, prima-facie, we find no justification for any bonafide misapprehension on the part of the petitioner, as to the scope of the contours and trajectory of the definition of the expression "real estate agent" nor any cause for a misconception that the transaction falls outside the purview of this taxable service - Conditional stay granted.
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2014 (3) TMI 438 - CESTAT AHMEDABAD
Classification of service - Erection, commission and installation service or Works contract - Held that:- Matter remanded back following the judgment in the case of G.D. Builders & Others [2013 (11) TMI 1004 - DELHI HIGH COURT] - Decided in favour of assessee.
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2014 (3) TMI 437 - CESTAT AHMEDABAD
Suo moto adjustment - Adjustment of excess tax paid - Adjustment made instead of refund claim - Held that:- It is observed from Ad-hoc exemption Order No. 01/01/2011 issued by GOI, Ministry of Finance under F.No.137/14/2008-Cx.4 dated 01.07.2011 that Service Tax was exempted for CISF for the period from 16.10.1998 to 31.03.2009. However, the Appellant paid certain amounts for the period before 01.04.2009 towards Service Tax which was exempted as per the above ad-hoc exemption order. Instead for seeking refund of the Service Tax paid for the period prior to 01.04.2009 appellant adjusted the same towards Service Tax liability for the period after 01.04.2009 which was objected by the Revenue. It has been correctly held by the First Appellate Authority that for the excess service tax paid for the period prior to 01.04.2009 Appellant should have sought refund claim, because such a suo moto adjustment is not permissible as per the existing Service Tax Law - Decided against assessee.
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2014 (3) TMI 436 - CESTAT MUMBAI
Waiver of penalty u/s 80 - non payment of service tax - Tour operator service - Penalty u/s 76, 77 & 78 - Held that:- service of tour operator, becomes taxable with effect from 1.9.1997. There was a Notification No. 52/98-ST exempting payment of service tax from 18.7.1998. The Notification is withdrawn on 1.4.2000 and the definition of ‘tour operator' is amended. We find that as per the provisions of Section 80 of the Finance Act, notwithstanding anything contained in the provisions of Section 76, 77 or 78, no penalty shall be imposable on an assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure. In the present case, as the definition of ‘tour operator' is amended with effect from 1.4.2000 and prior to 1.4.2000, the tour operators are exempted from payment of service tax. Therefore, in view of the provisions of Section 80 of the Finance Act, we find that it is not a case for imposition of penalties - Decided in favour of assessee.
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2014 (3) TMI 409 - CESTAT CHENNAI
Waiver of pre-deposit of tax and penalties - Auctioneering Service - Held that:- Board has clarified that the auction by the Tobacco Board would be required to pay tax for auction of the tobacco - Prima facie activities as mentioned in the impugned order would come under the category of Auctioneering Service . In view of that, we direct the applicant to make pre-deposit of tax within eight weeks - Conditional stay granted.
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2014 (3) TMI 408 - CESTAT AHMEDABAD
Waiver of pre-deposit of service tax liability - Invocation of extended period of limitation - Held that:- entire issue needs to be gone into detail as to the retrospective amendment on the valuation of the same done by the legislature in May 2010 in respect of renting of immovable property; whether the balance sheet income shown by the appellant only has to be considered for raising a demand on the appellant is an issue which may take considerable time of the Bench for coming to a conclusion - Conditional stay granted.
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2014 (3) TMI 407 - CESTAT MUMBAI
Demand of service tax - Penalties under sections 76, 77 and 78 - Availment of CENVAT credit - Held that:- CENVAT credit taken based upon the invoices which are not in the name of the applicant is not disputed. The Show Cause Notice was issued in April 2009 and through medium of the Show Cause Notice the applicant was made aware of the discrepancy. In the last four years they could not bring the corrected invoices. In view of this the applicant has not made out a case for waiver of pre-deposit of the disputed amount - Conditional stay granted.
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2014 (3) TMI 406 - CESTAT CHENNAI
Waiver of pre deposit - Telecommunication service - Denial of CENVAT Credit - Revenue contends that applicant could not have availed CENVAT credit on any of the equipment in view of Rule 3(5) of CENVAT Credit Rules which required that the applicant should have reversed CENVAT credit on all capital goods removed from the premises of the assessee, if it is not returned within 180 days from the date of removal - Held that:- since the provision in Rule 3(5) of the CENVAT Credit Rules, has been deleted the demand made for the reason that the goods have not been returned, is not sustainable at this stage. Therefore prima facie, we find it proper to grant waiver of pre-deposit of dues arising from the impugned order for admission of appeal and there shall be stay of collection of such dues during the pendency of the appeal - Stay granted.
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