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Service Tax - Case Laws
Showing 61 to 80 of 133 Records
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2015 (6) TMI 739 - CESTAT MUMBAI
Outdoor catering service - whether the appellant during the relevant period 10.9.2004 to 31.7.2009 would be covered under the service tax net under the category of outdoor catering service or otherwise - Held that:- A person who supplies directly or indirectly any food, edible preparations, alcoholic or non-alcoholic beverages or crockery and similar articles or accoutrements for any purpose of occasion, is a "caterer". - Appellant is a separate entity in the eyes of law and engages various persons for preparation of food, though, in the premises of their client and also engages different personnel for serving the food. This would indicate that the appellant has not engaged himself in preparing food and serving the same to the employees of Alfa Laval (India) Ltd., though the employees of Alfa Laval (India) Ltd., are the members of the appellant co-operative society.
On perusal of the agreement entered by the appellant with Alfa Laval (India) Ltd., we find that Alfa Laval (India) Ltd., had decided to engage specialized services in respect of catering services for their employees and appellant's credential was considered, having demonstrated their expertise in the said activity with their own trained personnel and having offered to undertake the activities relating to the catering service on contract basis, contract was awarded to appellant. On such clear-cut preamble to the contract entered by the appellant with Alfa Laval ((India)) Ltd., appellant cannot claim that they are not provider of the catering service. - reason to interfere with the impugned order. The first appellate authority has already set aside the penalties imposed on the appellant and the Revenue is not in appeal against such order. Accordingly, in the facts and circumstances of the case, the impugned order is upheld - Decision in the case of Indian Coffee Workers Co-op Society Ltd. [2013 (10) TMI 343 - CESTAT NEW DELHI] followed - Decided against assessee.
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2015 (6) TMI 697 - MADRAS HIGH COURT
Penalty u/s 76 - Whether Sections 76 and 80 of the Finance Act, 1994 as amended warrant levy of penalty equal to amount of Service Tax by way of mandatory condition or any discretion is left with the authorities for imposing such penalty - Held that:- This is a case of deliberate suppression of facts with a willful intention to evade payment of Service Tax and the evasion would not have come to light but for the investigation conducted by the Officers. On a revision, the Commissioner (Appeals) initiated penalty proceedings and imposed penalty. The said order was confirmed by the Tribunal following the decision of the Supreme Court in the case of Union of India Vs. Dharmendra Textile Processors reported in [2008 (9) TMI 52 - SUPREME COURT], which cannot be faulted with. When there is a deliberate suppression, the provision mandates imposition of penalty. Hence, we find no reason why the Authorities should depart from imposing such penalty as mandated by the provisions of the Act. - Decision in the case of Dhandayuthapani Canteen - Vs - Customs, Excise and Service Tax Appellate Tribunal [2015 (1) TMI 812 - MADRAS HIGH COURT] followed - Decided against assessee.
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2015 (6) TMI 696 - GUJARAT HIGH COURT
Recovery of service tax - Recovery before adjudication of upon the matter and fixed the quantum of service tax - Held that:- It cannot be disputed that even before adjudication, the respondents could recover the amount. But on the assumed basis, the recovery which is being made that smacks with arbitrariness - Decision in the case of Technomaint Contractors Limited v. Union of India, reported in [2014 (4) TMI 882 - GUJARAT HIGH COURT] followed - the petitioner is entitled for interim order - recovery proceedings stayed - Decided in favour of assessee.
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2015 (6) TMI 695 - CESTAT MUMBAI
Demand of service tax - Banking and other Financial services - taxability of Arrangement fees - Service Tax on Agent's Bank fee - Invocation of extended period of limitation - Difference of opinion - matter to be placed before the Hon'ble President for reference to the Third Member on the following points:-
(i) Whether in the facts and circumstances of the case, the Arrangement fee and Agent's Bank fee are taxable in the hands of the appellant company in view of the findings recorded by the learned Member (Technical)
Or
Whether the same was not taxable in view of the findings recorded by Member (Judicial).
(ii) Whether in the facts and circumstances of the case, the extended period of limitation is invocable and penalties under Section 76 & 78 are payable as held by the learned Member (Technical)
Or
Whether the extended period of limitation is not invocable in the facts and circumstances of the case as held by the learned Member (Judicial).
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2015 (6) TMI 694 - CESTAT MUMBAI
Commercial Training and Coaching service - vocational training - valuation - exemption under Notification 24/04-ST - levy of penalty - Held that:- From the course content, it is clear that courses are academic in nature and covers broad spectrum of subjects as diverse as Micro Economic, Business Communication, Psychology & Organizational Behaviour, Commercial Laws, Computer based Data-Analysis, Corporate Finance, Negotiation & Contracting. In the second year, courses though gets limited to the field of specialization but are again diverse, theory oriented and academic in nature. The content of courses can by no stretch of imagination can be called vocational. No doubt the two years course will help candidates in understanding various facets of management and get employment. It is a professional management course. This cannot be considered as Vocational Course that imparts skill to enable the trainee to seek employment or self employment after the said course.
Decision in the case of Ashu Export Promoters P. Ltd. [2011 (11) TMI 387 - CESTAT, NEW DELHI] distinguished.
However in the case of the second appellant, we agree with the Ld Counsel that the genuine belief that Charitable Trusts are not covered by the expression "Commercial Training or Coaching Centre" is supported by the fact that Not 24/2004 was amended retrospectively to cover such institutions. Therefore the larger period of limitation cannot be invoked as held by the Tribunal in the case of I2IT P. vs. CCE - [2014 (9) TMI 345 - CESTAT MUMBAI].
Valuation - Held that:- Amount recovered under students fund is recovered under receipts and is towards expenses such as textbooks, uniform, medical check-up, insurance etc. Unspent amounts are returned to the students. The ld. counsel also showed from the appeal papers the details of the amounts returned to the students. We agree with the reliance placed on the case of Intercontinental Consultant & Technocrafts P. Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT] in which the Delhi High Court held that amounts recovered towards expenses cannot form part of the value of the service. Similar is the case relating to charges for re-examination fees which is an activity post the coaching training and is an expense recovered from the students. Accordingly, we hold that these charges are not includable in the value of the service.
In view of the uncertainty prevailing on the leviability of tax on "Commercial Training and Coaching centres and keeping in view the amendments to the Notification 24/2004 which introduced changes in the definition of vocational training, a fair case is made out before us to hold that there was a reasonable cause for failure to deposit the service tax. And therefore, the benefit of section 80 which uses the word "reasonable cause" must be extended to the appellants. - demand of service tax and interest on all the appellants but set aside the demand for the larger period of limitation; however the penalties are set aside in terms of Section 80. - Appeal disposed of.
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2015 (6) TMI 692 - CESTAT NEW DELHI
Waiver of pre deposit - CENVAT Credit - invoices issued in the name of the Corporate Office and distributed the credit to various units under ISD invoices - according to the department, this service tax cenvat credit is in respect of the service which had been entirely used in the Vizag Unit and, therefore, the service tax credit in respect of this service which was received and used by Vizag Unit was not available to the appellant unit located at Bhilai
Held that:- There was no provision that the cenvat credit distributed by the Head Office as input service distributor should be in proportion to the turnover of the factories located at various places. Such restriction, was put after 31.3.2012. In view of this, prima facie, we are of the view that during the period till 31.3.2012, there was no irregularly in issuing of the ISD invoices by the Head Office to the appellant company passing on the cenvat credit in respect of the service which may have been used exclusively by the Vizag Unit. Such restrictions came only w.e.f 1.4.2012 and according to the ld. Counsel for the appellant, the credit distributed w.e.f. 1.42012 period is only about ₹ 11 Lakhs.
Appellant unit would not be eligible for cenvat credit in respect of the invoices issued by Head Office during the period w.e.f. 1.4.2012. In view of this, we direct the appellant unit to deposit an amount of ₹ 12 lakh within a period of 6 weeks. - Partial stay granted.
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2015 (6) TMI 661 - CESTAT MUMBAI
Refund - Cenvat credit of input services used in exported output services - Held that:- On perusal of the impugned order, I find that the first appellate authority has come to the correct conclusion as to that the respondents are eligible for CENVAT Credit of input services and also eligible for refund of the same as they have exported the services under the category of "Business Auxiliary Services". The appellants have also contended that the case is fully covered by the clarification issued by the Circular 120/1/2010-ST dated 19.01.2010 towards para 3.3.
The CBEC's Circular No. 120/01/2010-ST dated 19.01.2010 specifically provides that the essential services, used by Call Centres for provision of their output services would qualify as input services and be eligible for taking credit as well as refunds. Further, it was clarified in the said Circular that the phrase ‘used in' in the CENVAT Credit Rules and Notification should be interpreted in a harmonious manner. The inputs services, without which the quality and efficiency of output cannot be achieved, should be allowed as eligible input services for refund. Based on the above all the input services as referred in Para 11, which were disallowed by the adjudicating authority, are used by the applicant in providing the ‘export' outputs services and are very essential to provide quality output services . In the absence of any evidence controverting the factual findings of the first appellate authority; I find that the impugned order is correct and legal and does not suffer any infirmity. - Decided against the revenue.
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2015 (6) TMI 660 - CESTAT NEW DELHI
Valuation - Management maintenance and repair service - Inclusion of entire cost of repair including the cost of various items replaced during the repair of transformers, although the repair work was done under a composite agreement - Held that:- Invoices raised by the appellant clearly indicate the value of the goods separately. Not only that the contract itself while giving the rate of repair package clearly stated the value of labour charges and the value of HV/ LV leg oil, transformer oil and supply items. The adjudicating authority has also conceded that the appellant has paid VAT on the items supplied. In these circumstances, we do not find the observation of the adjudicating authority to the effect that "in the absence of any specific clause in the contract specifying the quality, make, specification of the items, it would be difficult to concede these a 'sale' even though the service provider has paid VAT on the same" legally valid and sustainable. - the appellant was entitled for deduction of the value of the goods supplied during repair of the transformer in which case the impugned demand would not survive as the demand has been computed on the value of such goods on the ground that the value thereof was not excludible from the assessable value - Decided in favour of assessee.
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2015 (6) TMI 659 - CESTAT MUMBAI
Business Auxiliary service - Job work - Manufacture - process of converting 'Para Nitro Cumene, in to 'Para Cumidine' - Held that:- Both the lower authorities have wrongly concluded that the processing activity undertaken by the appellant does not amount to 'manufacture' for more than one reason. Firstly, it is undisputed that the goods or inputs were received by the appellant from the principal manufacturer under job work-challan as per the provisions of Rule 4(5)(a) of the CENVAT Credit Rules. The said sub-rule mandates for movement of duty paid inputs on which CENVAT credit is availed, for further processing in to intermediate product outside the factory premises and receiving them back for further consumption. We find from records that the principal manufacturer had clearly intimated the Department as to the intention of getting the part of the process done from the appellant. This activity of processing in the appellant's factory premises is definitely an activity of 'manufacture' inasmuch as, the finished goods coming into existence after processing are different from the inputs which are put into use.
When there is a chemical reaction involved, the finished goods coming after the chemical reaction cannot be said to have been not manufactured. We perused the chemical formula and the properties of the inputs and of the final goods and we find that there is a difference between the two which would mean that the finished goods 'Para Cumidine' is arising out of a manufacturing process. In our considered view, the activity undertaken by the appellant would amount to manufacture even if it is under a job-work procedure. - impugned order is unsustainable and liable to be set aside - Decided in favour of assessee.
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2015 (6) TMI 627 - CESTAT BANGALORE (LB)
Demand of service tax - 'Commercial training or coaching' services - Invocation of extended period of limitation - whether the Service Tax is leviable in respect of the coaching provided by the Appellant through their junior colleges under its management or under the management of others - Difference of opinion - Majority order - Held that:- Students appear for the intermediate examinations under the hall ticket issued by the respective colleges and the students after passing examination, are awarded a certificate which issued by intermediate board education duly endorsing stamp of respective college. However, the students of said colleges underwent coaching in different campus of the Appellant on payment of fee ranging from ₹ 8,000.00 to ₹ 75,000.00 which was accepted by Shri K.V. Subba Rao, Accounts Manager of the Appellant in his statement dt.28.02.2006. He also confirmed that the amount was collected from the different students of different colleges who underwent coaching of JE-IIT, EAMCET, etc in different branches of the Appellant Society situated in Andhra Pradesh and other places of India. It is clearly evident from the facts of the case that the coaching classes were conducted in different campuses, separate fees and totally independent and had no nexus with the intermediate courses of the colleges
Appellants were aware of their tax liability as they have registered in Kota, Rajasthan and paid Service Tax. There is no logic or rational on different stand taken by the Appellant in Kota and Andhra Pradesh. The Appellants are not entitled to a bonafide belief that they are not liable to pay Service Tax. - the finding of the Adjudicating Authority that the Appellant tried to mislead the department by stating that their committee is non-commercial nature with an intention to evade payment of tax, cannot be accepted. It cannot be said that there was a suppression of facts with intent to evade payment tax. In any event, the difference of opinion on the leviability of Service Tax in the present case would also support the bonafide belief of the Appellant of the leviability of tax. - demand of tax is barred by limitation. - However, penalty u/s 77 is upheld - Decided partly in favour of assessee.
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2015 (6) TMI 626 - CESTAT NEW DELHI
Denial of the benefit of abatement Notification No.1/2006-ST, dated 01.03.2006 - Availment of CENVAT Credit - Held that:- f the assessee has reversed the Cenvat credit availed along with interest, the same shall amount to non-availment of Cenvat credit. Consequently, the assessee is entitled for the benefit of exemption Notification No.1/2006-ST ibid. Admittedly, in this case the appellant has reversed the Cenvat credit of their own. On being realisation that they are not entitled to take the Cenvat credit if they are availing the benefit of exemption Notification No.1/2006-ST. Therefore, we hold that the reversal of Cenvat credit by the appellant amounts to non-availment of Cenvat credit. Consequently, appellant is entitled for the benefit of Notification No.1/2006-ST. In these terms the demand of service tax along with interest and equivalent amount of penalty are set aside on this issue.
Appellant has paid the service tax through cheque on due dates and the same stand realised on a later date. Therefore, the date of deposited the cheque into the treasury is the date of payment of service tax as per Rule 6(2A) of the said Rules. In these circumstances, we hold that the appellant has paid the service tax in time. Consequently, demand of interest on delayed payments is not sustainable. - Decision in the case of Khyati Tours & Travels [2011 (6) TMI 324 - CESTAT, AHMEDABAD] followed - Decided in favour of assessee.
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2015 (6) TMI 625 - CESTAT MUMBAI
Nature of activity - collection of octroi on behalf of the Municipal Corporation - cash management activity or not - Banking and other Financial Services - Held that:- Reading the definition of banking and financial services and the meaning of financial institution, we have to hold that the services rendered by the appellant would not fall under the category of service provided by a banking or a financial institution or any other body corporate or commercial concern. - cash management involves something more like contracting a debt collection service to retrieve what is owned by a customer, and also investing such cash which would lead to avoiding insolvency and bankruptcy and also reduced the days of the debt, increasing collection rates, selecting appropriate short-term investment vehicles, and also strategically by increasing days cash on hand in order to improve a company's overall financial profitability. In the case in hand, we find that it is undisputed as to the appellant is only collecting an amount as octroi the vehicles, in which goods transported and octroi liability arises. In our view this will not encompass ingredients of cash management. In the absence of any cash management activity undertaken by the appellant, we find that the services rendered by the appellant will not fall under the category of banking and financial services.
Yet another angle to this case is that CBEC vide Circular No. 83/1/2006-ST dated 4.7.2006 while clarifying as to the services provided by Department of Posts in respect of money orders, operation of bank accounts issue of postal orders etc. - CBEC was of the view that any services to fall under the category of banking and financial services, the expression 'any other person needs to be read "ejusdem generic" with the preceding words and the services are to be provided by any person should be similar to a bank or financial institution. In the case in hand, as is recorded by us, it is undisputed that appellant is not financial institution. - Decided in favour of Assessee.
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2015 (6) TMI 589 - CESTAT NEW DELHI
Intellectual Property Service - whether the transfer of technology and know-how by the Japanese holding company to the assessee fulfils the requirements of Section 65 (105) (zzr) read with the definition of Intellectual Property Rights in section 65 (55 a), has not been considered by the adjudicating authority - Held that:- It is appropriate to remit the matter for consideration afresh and grant liberty to the assessee to raise any other issue as well before the adjudicating authority including as to whether the provisions of Section 65 (105) (zzr) are applicable to the assessee’s transactions, since the payment of royalties event though subsequent were pursuant to an agreement which was earlier to introduction of the taxable service. The assessee shall file a Memorandum of Written Submissions within 3 weeks from today before the adjudicating authority on this aspect but shall not however be entitled to personal hearing again. Any case supporting the assesse’s contentions may also be appended to the Memorandum of Written Submissions, within the time stipulated herein. - Matter remanded back - Decided in favour of assessee.
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2015 (6) TMI 588 - CESTAT NEW DELHI
Business Auxiliary service - promotion/marketing of goods manufactured by the service recipient under a Multilevel Marketing Service Scheme - Decision in the case of Shri Surendra Singh Rathore Vs. CCE, Jaipur-I [2013 (8) TMI 149 - CESTAT NEW DELHI] - orders of the adjudicating authority confirmed by the appellate authority - Decided against assessee.
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2015 (6) TMI 586 - CESTAT NEW DELHI
Intellectual Property service - payment received for royalty or mere profit making activity - good manufactured by the job worker on behalf of appellant - Revenue is of the view that M/s. Pilkhani is using the brand name and technical knowhow of the appellant and paying consideration in terms of royalty for use of brand name and technical knowhow of the brand owner - Held that:- Arrangement between the appellant and M/s. Pilkhani is squarely covered under clause 3 of said Circular wherein the appellant gets IMFL manufactured by M/s. Pilkhani who is holding the State license of manufacture of alcoholic beverages. In particular M/s. Pilkhani is owner as contract bottling i.e. CBU. As per the agreement, cost of raw material and other expenses were either paid by the appellant or reimbursed by the appellant. The State levies such as excise levy or taxes were also reimbursed to M/s. Pilkhani by the appellant. The IMFL was sold by or as per the direction of the appellant on profit /loss on account of the manufacturing and sale of IMFL is entirely on account of appellant who holds the property risk and reward of the product. M/s Pilkhani received consideration for undertaking the manufacture of job work done basis. In these circumstances, the appellant is not required to pay service tax at all.
As per the agreement between the parties, the risk of manufacture and sale lies with the appellant in respect of the Foster Brand beer got manufactured by it from FIPL. It is evident from the contract that FIPL is only responsible for bottling, packing and dispatch as per the specification, terms, formula etc. as laid down by the appellant. Further, FIPL is bound to charge the price from the notified Indenter of the appellant as fixed by the appellant. Only for the risks associated with the manufacturing process fastened on FIPL (CBU), it cannot be said that as FIPL is responsible for proper quality, quantity and timely production, they are providing Franchise Service and/or IPR Service.
Appellant are the Brand Owner of IFML and M/s. Pilkhani is a job worker manufacturing IMFL on behalf of the appellant and the amount retained by the appellant is the business profit not liable to be taxed under the Finance Act, 1994 under the category of Intellectual Property service. Therefore on merits, we hold that appellant are not required to pay Service Tax under the category of Intellectual Property Right service. - Decided in favour of assessee.
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2015 (6) TMI 585 - CESTAT NEW DELHI
Demand of service tax - Tax on commission received - Commission as distributor of Amway - Held that:- activity of a Distributor of identifying other persons, who can be roped in for sale of the Amway products/marketing of the Amway products and who on being sponsored by that Distributor are appointed by Amway as second level of distributors is, in our view, the activity of marketing or sale of the goods belonging to Amway and the commission received by the Distributor from Amway, which is linked to the performance of his sales group (group of the second level of distributors appointed on being sponsored by the Distributor) would have to be treated as consideration for Business Auxiliary Service of sales promotion provided to Amway. Therefore, service tax would be chargeable on the commission received by a Distributor from Amway on the products purchased by his sales group. However, in the impugned orders service tax has been demanded on the gross amount of commission and no distinction has been made between the commission earned by a Distributor from Amway based on his own volume of purchase from Amway and the commission earned by him on the basis of the volume of purchases of Amway products made by his sales group i.e. group of second level of Distributors appointed by Amway on being sponsored by the Distributor. - Matter remanded back.
Whether duty exemption under notification no.5/2006-ST would be admissible to the Distributors in this group of cases - distributors are engaged in promoting sales/marketing of the products of Amway and they are not marketing or promoting any taxable service which is branded and the brand name belongs to another person. Marketing or sale promotion of branded products by a person/ commission agent does not amount to providing branded service by him and hence, marketing or sales promotion of a branded product does not come under the exclusion category as mentioned in the proviso to notification no.6/05-ST. In this group of cases, the eligibility of the Distributors (assessees) for the exemption notification no.6/2005-ST has not been examined and for this purpose also, these matters have to be remanded to the Original Adjudicating Authority.
When there is scope for doubt in the mind of an assessee on a particular issue, the longer limitation period, under proviso to Section 11 A(1) cannot be invoked and in our view, the ratio of this judgement of the Apex Court is applicable to the facts of these cases. Therefore, the longer limitation period of 5 years under proviso to Section 73(1) of the Finance Act, 1994 would not be invokable and duty can be demanded only for normal limitation period of one year from the relevant date. - impugned orders passed by the Commissioner (Appeals) are set aside and the matters are remanded to the Original Adjudicating Authority for de novo adjudication strictly in terms of our observations and directions in this order - Decided in favour of assessee.
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2015 (6) TMI 584 - CESTAT MUMBAI
Wrongful utilization of CENVAT Credit - Renting of immovable property - Held that:- It appears that the property located in Mumbai was never registered under service tax. In Pune the appellant had their manufacturing unit where they were taking credit of input services used in their manufacturing activities as well for providing output services. The correct procedure was to take recourse to centralized registration which they failed to do so. This being an omission no doubt but the center of the dispute lies elsewhere. The prime question to be addressed by us is whether CENVAT Credit on various input services which are used by the appellant in the course of their manufacturing activity and output services may be utilized for the payment of service tax liability on the service of renting of immovable property.
If the factory itself is located in a rented premises, then perhaps the nexus could be there but in the present case we are of the view that input credit cannot be utilized for paying service tax liability on the renting of immovable property service provided in Mumbai. Ld AR has correctly placed reliance on the Larger bench decision in the case of Telco Equipment (supra) holding that there must be semblance integral connection between the input service and the manufacturing/output service.
If some information is available in various reports and returns which are to be formulated in compliance to other statutes it does not lead to a conclusion that the utilization of credit for the activity of renting is known to the department. The department is not supposed to know each and every declaration made outside the Central Excise and Service Tax law. Even if the financial report is available to the audit, the same is meaningless in the sense that it does not indicate that input service tax credit is utilized to pay the tax liability on such renting of property.
If the credit is not available for paying service tax liability on the renting of property service, there is no bar on utilizing the same credit for manufacturing/other output services at Pune. As the appellant have already paid the amount of ₹ 54,44,777/- which is due to the department, they are allowed to take re-credit of the same amount. In the circumstances, there is reasonable cause to waive penalty under Section 80. - Decided in favour of assessee.
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2015 (6) TMI 546 - CESTAT MUMBAI
Demand of service tax - cum duty value - Event Management service - Invocation of extended period of limitation - Held that:- appellant at no stage made available any documents such as invoices and contracts with their clients which would indicate that value received by them is cum duty value. We notice that one of the clients is a well-known company i.e. Hindustan Unilever. We find no reason why any documents could not have been obtained from their client to show that the value received by them is actually cum duty value. Appellant got enough opportunity to produce documents from their client even if their own documents were washed away in floods. The case of Roopa Ram Suthar (2014 (12) TMI 826 - CESTAT NEW DELHI) does not come to the aid of the client because in that case documents existed and invoices clearly disclosed that no service tax component was added and collected from customer.
Appellant was very well aware of their responsibility and liability, having taken service tax registration in Feb 2003. But appellant still chose to avoid all Legal obligations cast on them after taken service tax registration and not complying with the requirement of filing ST3 returns on periodical basis for a long period of six years till the time of issuance of show cause notice - appellant had service tax registration but did not receive the show cause notice, did not submit any reply to the show cause notice, did not even appear for personal hearings on various dates can only lead to the conclusion that their intentions were not bonafide. - Decided against assessee.
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2015 (6) TMI 545 - CESTAT MUMBAI
Penalty u/s 76 & 78 - Classification of service - Valuation - Held that:- Irrespective of the fact whether the activity is classified as "port service" or as a "Cargo handling" service, the stated policy of the government is to exempt exports from levy of any tax. But the fact whether almost the entire cargo pertains to export containers is not discussed in the order of the Commissioner although the learned AR did not dispute the statement made by the counsel before the bench.
Section 67 which deals with valuation was amended on 18.4.2006. Prior to this date, service tax was chargeable on the gross amount charged by the service provider for service provided. After the amendment on 18.4.2006, explanation (c) to section 67 was introduced which states that the gross amount charged will include payment of cheque, credit cards, deduction from accounts, credit or debit notes, or book adjustment. We do not agree with Revenue that the amendment to Section 67 has not made any material difference to the provisions of valuation. Before the amendment on 18.4.2006, the gross amount charged by the appellant would be none other than the amount for which invoice is raised. There is no other consideration flowing from the receiver to the appellant. The whole transaction can be read as a contract that provides for charging only on the basis of the net number of containers handled in excess by the appellant. It must be noted that during the relevant period there was no valuation Rules.
The Service Tax (Determination of Value) Rules 2006 came into effect form 19.4.2006, that is after the period of dispute in the present case. Therefore resort cannot be had to these Rules for the determination of value. In this view of the matter the taxable value on which service tax is chargeable must be considered as the invoice raised for the service provided - Decided in favour of assessee.
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2015 (6) TMI 544 - CESTAT MUMBAI
Cenvat Credit - availment of Cenvat Credit on the capital goods and the input services - construction of towers for providing Telecom Infrastructure - Held that:- the issue involved in this case is regarding the services rendered by the appellants as infrastructure service providers and not as telecom service provider and are providing business support service in form of infrastructure service; - Decisions in the cases of GTL Infrastructure Ltd. [2014 (9) TMI 647 - CESTAT MUMBAI]and Reliance Infratel Ltd. (2015 (3) TMI 701 - CESTAT MUMBAI) followed - cenvat credit allowed - impugned orders are unsustainable and liable to be set aside - Decided in favor of assessee.
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