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Service Tax - Case Laws
Showing 81 to 100 of 181 Records
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2018 (1) TMI 996 - CHHATTISGARH HIGH COURT
Whether the imposition of 50% penalty is just and reasonable on the totality of the facts and circumstances of the cases in hand as the substantial question of law arising for decision in these appeals?
Held that: - it had been the consistent case of the Appellant before the authorities that the non-payment of the service tax was on account of payment of entire service tax by the service provider - the penalty component ought to have been reduced from what it is now paid to 50%, on the peculiar facts and in circumstances of the case in hand, particularly when the CENVAT Credit availed was reversed. Reasonably, the amount of penalty can be pegged at 25%, that is to say half of the penalty imposed by the authorities below.
The penalty will stand reduced to be 25% - appeal allowed in part.
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2018 (1) TMI 994 - RAJASTHAN HIGH COURT
Refund of unutilized CENVAT credit - circular dated 23-8-2007 - case of Revenue is that in view of the circular as well as provisions of law, the assessee cannot be permitted to reverse the entries and in fact should have applied for refund of the amount due to him - Held that: - somewhat similar controversy came up before the Gujarat High Court in case of S. Subrahmanyan & Co. v. Commissioner [2011 (3) TMI 396 - CESTAT, AHMEDABAD], where it was held that Correction not requiring any lis between the parties.technical view that even in such cases where admitted wrong entries are made and are rectified immediately thereafter, an assessee is required to file refund application is to shake the assessee’s faith in the judicial system.
There is no error committed by the Tribunal while holding that the amount which has already been paid in cash to satisfy the demand of the revenue with respect to the service tax on GTA is fulfilled, there was no question of not reversing the amount paid from their CENVAT credit account - Further, the circular is dated 23-8-2007 and the period in question is March, 2006 to March, 2007, therefore the Tribunal was right in holding that the circular dated 23-8-2007 is having no application.
The amount paid from CENVAT credit account was required to be reversed - appeal dismissed - decided against Revenue.
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2018 (1) TMI 981 - CESTAT MUMBAI
Classification of services - transportation service charged Service Tax in the invoice under the category of Goods Transport Agency Services - The case of the Department is that the service provider by the appellant is not classifiable under GTA services but correctly classifiable under Clearing and Forwarding Agency Services - Held that: - on identical issue of the appellant itself, Gupta Coal India Ltd Versus Commissioner of Central Excise, Nagpur [2017 (10) TMI 289 - CESTAT MUMBAI], where the entire facts and the contract is same in that case. In the present case, only difference is of the period, in the earlier Tribunal s order period was 2005-06 to 2009-10 and in the present case period is 2010-11, where it was held that It would appear that transportation is the most prominent of these and the classification that was declared by the appellant cannot be faulted for its legality. More so, as the impugned order has failed to consider such an option. Nay, even the show cause notice is regrettably bereft of such a scrutiny. The activity of the appellant is not classifiable as ‘clearing and forwarding agents service’ and the demand on that head must fail.
Appeal allowed.
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2018 (1) TMI 964 - CESTAT ALLAHABAD
GTA Service - It appeared to Revenue that activity of transport of foodgrains, sugar etc., comes under the purview of taxable service namely ‘Goods Transport Service’ as defined under Section 65 (50b) of the Finance Act, 1994 and taxable under Section 65 (105) (zzp) - Held that: - there is neither any allegation nor any finding that the appellants were issued a consignment note - in the facts of the present case, both the consignor and the consignee are same. Thus, there is no requirement also of issuance of any consignment note. Under such circumstances, the appellants are not liable to pay service tax as GTA, as defined under Section 65 (50b) read with Section 65 (105)(zzp) of the Finance Act.
Appeal allowed - decided in favor of appellant.
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2018 (1) TMI 962 - CESTAT ALLAHABAD
Penalty u/s 76, 77 and 78 of FA - Commission paid to foreign commission agents - reverse charge mechanism - Held that: - during relevant period law was not clear and was subject matter of litigation before various courts. It is only with a declaration of law by the Hon’ble Bombay High Court decision in the case of Indian National Shipowners Association Vs. Union of India [2008 (12) TMI 41 - BOMBAY HIGH COURT], that the levy on reverse charge basis was upheld w.e.f. 18.04.2006 - The appellant have already paid the said duty alongwith interest. As such there is no justification for imposition to penalty upon them - appeal alllowed.
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2018 (1) TMI 920 - DELHI HIGH COURT
Rectification of Mistake application - grievance was that the adjudication order did not take into account the fact that AAI had discharged all its liabilities towards non-traffic revenue including the rent on Scope Complex which was in terms of the Finance Act, 1994 - Held that: - it is significant that the order dated 8th January 2008, passed by the CST rejecting the rectification application itself notes that AAI had filed a revised return on 26th June, 2006. In any event, this formed part of the assessment record and, therefore, available with the Department. In such circumstances, the CST could not have restricted the examination to the SCN and the reply thereto, but was expected to examine the assessment record.
The Court is unable to agree with the contention of learned counsel for the Respondent that it was incumbent on AAI to have drawn the attention of the adjudicating authority to the fact of filing of the revised return on 26th June, 2006. It is expected that the adjudicating authority will examine the entire record of AAI not limited to the documents supplied with the SCN or supplied along with the reply thereto.
The rectification application should be decided afresh within a period of eight weeks - petition allowed by wya of remand.
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2018 (1) TMI 919 - ALLAHABAD HIGH COURT
Recovery of alleged dues pursuant to a contractual work - outstanding dues of service tax - jurisdiction under Article 226 - Held that: - The question has been considered specifically in Hindustan Petroleum Corporation Limited and another Vs. Dolly Das [1999 (4) TMI 615 - SUPREME COURT] wherein Court said that in absence of any constitutional or statutory rights being involved, a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against State or to avoid contractual liability arising thereto. In the absence of any statutory right, Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise.
Mandamus sought by petitioner is nothing but grant of a money decree in extraordinary equitable jurisdiction under Article 226 which ought not to have been granted.
Petition dismissed with costs.
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2018 (1) TMI 872 - DELHI HIGH COURT
Maintainability of petition - requirement of pre-deposit - Held that: - entire service tax payable on reverse charge basis on the commission paid to the agents, has been paid. The said position is admitted and accepted by the respondents and is also not challenged and contested in the order-in-original. The contention of the respondent is that the petitioner must also pay in addition and over and above 12% service tax, the amount received from the agents under the mutual agreement in view of Section 73A (2) notwithstanding the payment made.
As the petitioner has paid full amount of service tax, which is an accepted and admitted position, on reverse charge basis on the commission payment, we would direct the Tribunal not to dismiss the appeal preferred by the petitioner on the ground of “pre-deposit” under direction (ii), provided the petitioner has made pre-deposit in accordance with law in respect of other adjudication subject matter of the order-in-original dated 29th January, 2015.
Petition disposed off.
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2018 (1) TMI 827 - CESTAT CHENNAI
CENVAT credit - input service - construction service - Held that: - Prior to 16.6.2005 ₹ 5,16,774/-, Appellant is not contesting this portion of the demand. The same is upheld - Between 16.6.2005 and 01.06.2007, the impugned input services availed by appellant are included in Rule 6 (5) of CCR, 2004, and as the appellants were also using these services partly for rendering MMR services, availment of impugned input service credits availed during this period in entirety, amounting to ₹ 11,63,81,259/-, is very much in order. This being so, that part of the order denying this quantum of input credit is set aside - Post 1.6.2007, denial of input service credit of ₹ 12,04,53,005/- for the period post-1.6.2007 also cannot be sustained and hence the relevant portion of the impugned order denying the same is also set aside.
Levy of service tax - reimbursable expenses - Electricity and Water charges - Held that: - The said issue is covered by the decision in the case of CST Chennai Vs Sangamitra Services Agency [2013 (7) TMI 862 - MADRAS HIGH COURT], where it was held that if a receipt is for reimbursing the expenditure incurred for the purpose, the mere act of reimbursement, per se, would not justify the contention of the Revenue that the same, having the character of the remuneration or commission, deserves to be included in the sum amount of remuneration / Commission - levy of service tax on the reimbursable expenses of electricity charges and water charges is unsustainable and requires to be set aside.
Demand of service Tax on Fitout charges - Held that: - these are movable items (chairs, tables and other items) which are handed over to the tenants for use by them. The appellant has paid VAT on the consideration received in the said transaction for transfer of right to use the goods - VAT and Service Tax being exclusive, further demand of service tax on the very same consideration received for transfer or right to use of goods cannot sustain - demand set aside.
Appeal allowed in part.
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2018 (1) TMI 771 - CESTAT NEW DELHI
Construction project of Delhi Haat in INA and Pitampura - commercial nature of the construction undertaken by the respondent - whether classified under Commercial or Industrial Construction Service or otherwise? - Held that: - the constructions undertaken by the appellant are in pursuance of composite works contracts and were not liable to be taxed prior to 01.06.2007.
The SCN was issued on 27.05.2011. On that date, both the tax entries, namely, Commercial or Industrial Construction Service and Works Contract Service, were available in the Finance Act, 1994. The SCN did mention this in the first para itself. However, the proposal for tax demand was specifically made under Commercial or Industrial Construction Service under Section 65 (105) (zzq) of the Finance Act, 1994. In such situation, it cannot be a case of simple mentioning of wrong provisions of law.
Since the impugned order dealt with the tax liability for the whole period only under the Commercial or Commercial or Industrial Construction Service, the same is not sustainable - appeal dismissed - decided against Revenue.
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2018 (1) TMI 717 - CESTAT NEW DELHI
Classification of services - nature of lease - operating lease of finance lease - Banking and Other Financial Services or otherwise? - business in operating lease with reference to motor vehicle given to the clients - Revenue entertained a view that the terms and conditions governing both types of leases, namely financial lease and operating lease are similar and as such the consideration received in such business transaction is liable to be taxed under BOFS - Held that: - The whole thrust of the distinction for financial lease and operating lease is the ownership of the asset. This aspect has been adequately analysed and covered in the impugned order with more specific reference to Accounting Standard 19 - We are in agreement with the respondent-assessee and the findings of the Commissioner regarding the treatment of Accounting Standard 19 to decide the nature of lease arrangement - the income for operating lease were shown as lease rental and the assets were depreciated in the lesser’s account as these are shown as own assets. In financial lease no depreciation is accounted for. The income shown on such arrangement is EMI received which is principal + interest.
Listing out the difference between operating lease and financial lease the impugned order categorically recorded that the lease arrangements on which the respondent–assessee discharged VAT are operating leases and are not liable to service tax - the impugned order is legally sustainable - Appeal dismissed - decided against Revenue.
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2018 (1) TMI 680 - CESTAT MUMBAI
Classification of services - activity carried out for loading and unloading at a particular place - whether classified as supply of manpower and recruitment service or works contract service? - Held that: - terms of the contract does not have character of mere supply of manpower or recruitment thereof - adjudication fails to sustain - appeal allowed.
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2018 (1) TMI 678 - CESTAT BANGALORE
Classification of services - Interconnectivity user charges - Revenue held that such charges are liable to service tax under ‘telecommunication service’ - Board clarification dated 12.3.2007 - Held that: - the matter stands settled that prior to the amendment carried out in the definition for “telecommunication service through Finance Act, 2007” such interconnectivity user charges cannot be charged under ‘telecommunication service’ - demand not sustainable - appeal allowed.
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2018 (1) TMI 650 - CESTAT NEW DELHI
Business Auxiliary Services - Support Services for business or commerce - scope of SCN - Held that: - the Commissioner (Appeals) has gone beyond the scope of the show cause and in the appellant’s own case Doon’s Caterers Versus Commissioner of Service Tax, Delhi [2015 (9) TMI 1470 - CESTAT NEW DELHI], on identical set of facts, where it was held that The principle is well settled that a classification of taxable service which is not alleged in the show cause notice cannot be concluded to support levy of tax.
The ld. Commissioner (Appeals) has gone beyond the scope of SCN - appeal allowed.
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2018 (1) TMI 649 - CESTAT NEW DELHI
Benefit of N/N. 14/2004 dated 10.09.2004 - whether the education service is exempted from the BAS? - Held that: - it appears that N/N. 14/2004 dated 10.09.2004 provides the exemption for the activities in relation to agriculture, printing and textile processing or education - From the agreement between the Education Board Chhattisgarh Madhyamik Shiksha Mandal and the appellant, it appears that the service is rendered by the appellant are “in relation to” education which is exempted from the service tax as per the N/N. 14/2004 dated 10.09.2004 - appeal allowed - decided in favor of appellant.
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2018 (1) TMI 648 - CESTAT HYDERABAD
Business Auxiliary Service - whether the amounts received by the appellant as consideration for hiring out the buses to APSRTC during the period 2005-06, 2006-07 (prior to 01.06.2007) would amount to taxable services under business auxiliary services or otherwise? - Held that: - Board vide circular No 137/155/2007 CX.4 dated 02.08.2007 has categorically clarified that mere renting of buses prior to 1.6.2007 will not be taxable under business auxiliary services or any other services. If this is the clarification given by the Board, both the lower authorities have erred in holding that amounts received by the appellants are taxable under business auxiliary services - appeal allowed.
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2018 (1) TMI 647 - CESTAT MUMBAI
Maintainability of appeal - rejection of VCES declaration - Held that: - there is no appellate remedy provided therein as enacted by the Finance Act, 2013. In absence of such remedial provision, the appeal is not maintainable in Tribunal for which, that is dismissed. Chief Commissioner is requested to examine the cases of false declarations under Section 111 of the VCES, 2013 for appropriate action at his end - appeal dismissed.
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2018 (1) TMI 646 - CESTAT BANGALORE
Refund claim - invoice without signature - services provided to SEZ unit - no proper documents is required to indicate that the tax liability has been discharged by the respondent who is registered in the Cochin Special Economic Zone - Held that: - It is a common knowledge that any such computer generated invoice by the banks does not require signature as the said invoice mentions specifically that “this being a computer generated invoice, no signature is required”. There is no dispute as to the fact that the service provider M/s. Standard Chartered Bank has paid the service tax and the appellant has also discharged the same to the service provider - appeal dismissed - decided against Revenue.
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2018 (1) TMI 645 - CESTAT NEW DELHI
Claim of small service provider exemption - Notification no. 6/2005-ST dated 01.03.2005 as amended by Notification no. 4/2007-ST dated 01.02.2007 - denial on the ground that the option to avail the exemption cannot be exercised in the middle of the Financial year, where the appellant had already opted for payment of service tax from beginning of the Financial year - Held that: - The notification dated 01.02.2007 in clear and unambiguous terms provides that the provider of taxable service has the option not to avail the exemption and pay service tax on the taxable services provided by him and such option, once exercised in a financial year, shall not be withdrawn during the remaining part of such financial year - In this case, since the appellant had opted for payment of service tax at the beginning of the Financial year, as per the mandates of the said notification, it cannot change the option during the middle of the financial year, opting for the benefit provided under the said notification - appeal dismissed - decided against appellant.
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2018 (1) TMI 565 - MADRAS HIGH COURT
Condonation of delay in filing appeal - power to condone the delay than what is prescribed under Section 85(3A) of the Finance Act, 1994 - Held that: - There can be no quarrel about the legal position that when a statute prescribes a outer time limit for the purpose of condonation of delay then the statutory authority exercising jurisdiction under particular statute cannot suo motu extend the period of limitation prescribed in the statute. This being the settled legal position, it may not be necessary for the Court to refer to the various decisions on the point.
Firstly, the petitioner Municipality, a local authority who is vested with a constitutional obligation to take care of the citizens residing in its locality and every service done by the Municipality has an element of public interest attached to it and therefore, some latitude can be granted to such a local authority. Secondly, the petitioner Municipality has paid the entire tax as demanded and also complied with the conditional order passed by this Court at the time of entertaining the writ petition by remitting a sum of ₹ 5 lakhs towards penalty. However, the learned Senior Standing Counsel would submit that it is not clear as to whether the petitioner has paid the entire tax. Thus indulgence is being granted to the petitioner to go before the Appellate Authority to contest the appeal petition on merits as the right of appeal is a very valuable right subject to the condition that the petitioner Municipality pays the entire tax and the payment of ₹ 5 lakhs towards penalty can be reckoned as partial compliance of the order passed by the second respondent. If that be so, till the appeal is heard and decided by the first respondent, further amount of penalty shall not be demanded from the petitioner.
Matter is remanded to the first respondent for fresh consideration.
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