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Service Tax - Case Laws
Showing 81 to 100 of 133 Records
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2014 (3) TMI 382 - ANDHRA PRADESH HIGH COURT
Undue hardship - waiver of pre-deposit - Whether the learned Tribunal is correct in law in holding that financial difficulty is not a primary criteria for deciding the issue of undue hardship as mentioned 35F of the Central Excise Act, 1944, which has been adopted by the appropriate Finance Act - Held that:- The word 'undue' adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. - The other aspect relates to imposition of condition to safeguard the interest of revenue.
It is clear that prima facie case is not only criteria, but the financial hardship has also to be considered side by side. Here the learned Tribunal has taken note of the case of financial hardship, but did not feel to decide or consider the same as the prima facie case was assessed. We are therefore of the view that the impugned judgment and order is completely contrary to the provisions of law as well as the principle laid down by the Supreme Court in the aforesaid case. - matter remanded back for fresh decision - Decided in favour of assessee.
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2014 (3) TMI 372 - CESTAT MUMBAI
Denial of refund claim - Non fulfillment of condition of Notification 41/07 dated 6.10.07 as amended - Held that:- In the case of Hemlines Textiles Exports (2012 (11) TMI 353 - CESTAT, AHMEDABAD), this tribunal has laid down the procedure for availment of refund claim i.e. whether service tax has been paid or not, whether service has been used or not, whether service falls within the Notification or not. Admittedly, in this case service tax has been paid, service has been used and all the services fall within the Notification. Therefore I hold that appellant is entitled for refund claim as per Notification 41/07 - Decided in favour of assessee.
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2014 (3) TMI 371 - CESTAT AHMEDABAD
Condonation of delay - Appeal dismissed as beyond limitation - Held that:- assessee, if, had filed an application for condonation of delay, the same could have been allowed by the first appellate authority. In our view, a delay of ten days in filing the appeal before the first appellate authority could have been condoned as it lies within the power vested with the first appellate authority. Suffice to say that such power vested with the first appellate authority should have been exercised and the matter should have been disposed of on the merits of the case, we are constrained to set aside the impugned order and remand the matter back to the first appellate authority. We set aside the impugned order, condone the delay filed before the first appellate authority though the delay application was not filed, and direct him to restore the appeal to its original number and dispose the same on merits by speaking order - Decided in favour of assessee.
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2014 (3) TMI 370 - CESTAT MUMBAI
Classification of service - Business Auxiliary Services or rending of immovable property - Held that:- As per the Franchise agreement, the appellant has rented out their premises to M/s Amalgamated Bean Coffee Trading Co. Ltd. along with certain facilities, for which the appellant received the consideration. Prima facie the activity undertaken by the appellant is one of renting of immovable property and not Business Auxiliary Services. In view of the above, we are of the view that the matter has to go back to the lower appellate authority for reconsideration of the entire issue on merits without insisting on any pre-deposit - Decided in favour of assessee.
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2014 (3) TMI 339 - CESTAT NEW DELHI
Taxability of Reimbursement of the expenses on advertisement and road show being organized recovered from the supplier of goods - Held that:- Respondent during the period of dispute had arranged advertisements and had organized road shows for promoting the sales of the cars being manufactured by M/s Hindustan Motors. This activity of the respondent is covered by the definition of Business Auxiliary Service as given in Section 65 (19) of the Finance Act, 1994. The debit notes issued by the respondent to M/s Hindustan Motors show the total charges for road shows/advertisements at various places and also mention the 50% share of M/s Hindustan Motors.
Though the sales promotion activity being undertaken by the respondent may have benefited both respondent as well as M/s Hindustan Motors and satisfied the need of their respective business, to the extent the respondent have recovered expenses from M/s Hindustan Motors, they will be treated as having provided the sales promotion service to them and M/s Hindustan Motors is to be treated as their client and, hence, on the amount being charged by them from M/s Hindustan Motors, service tax would be attracted - there is no relationship of principal and client between the respondent and M/s Hindustan Motors is not correct - Decided in favour of Revenue.
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2014 (3) TMI 338 - CESTAT KOLKATA
Waiver of predeposit of service tax - short-payment of service tax on the basis of difference between the gross taxable value shown in the ST-3 Returns and receipts shown in the Balance Sheet - Penalty u/s 76, 77 & 78 - Burden of proof - Held that:- the burden lies on the assessee to explain to the Department adducing proper evidences to justify that the differential receipts between the amount shown in the Balance Sheet and ST-3 Returns, are not related to taxable services - Applicants are not able to make a prima-facie case for total waiver of dues adjudged. Consequently, taking into consideration the financial hardship, interest of Revenue and principles laid down by disposing stay petition by the Hon'ble Supreme Court and the Hon'ble High Courts, we direct the Applicant to deposit 25% of the service tax within a period of eight weeks - Conditional stay granted.
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2014 (3) TMI 337 - CESTAT MUMBAI
Denial of refund claim - Notification 41/07 - Refund claim denied by the lower authorities on the premise that these refund orders are not in accordance with Notification 41/07 - Held that:- appellant have availed the services namely Technical Testing & Analysis Charges, CHA service, Banking and Financial services. It is also not disputed that service tax has been paid by the appellant and appellant have complied with the condition of Notification 41/07. Therefore, in the light of the above said circular, appellants are entitled for the claim - Decided in favour of assessee.
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2014 (3) TMI 336 - CESTAT MUMBAI
Clearing & Forwarding Agency Service - Imposition of interest and penalty - Held that:- it is evident that the appellant is rendering freight forwarding service. Freight forwarding is distinct and different from “Clearing & Forwarding Agency Service” as defined in law - services rendered by the appellant do not come under the category of “Clearing & Forwarding Agency Service” - Decided in favour of assessee.
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2014 (3) TMI 335 - CESTAT MUMBAI
Clearing and Forwarding Agent Service - Penalty under Section 75A, 76, 77 & 78 - Appellant contends that they are simply doing transportation work and unlike clearing and forwarding agent. They are not involved in storing of goods on behalf of the principal and thereafter forwarding them from time to time as per the direction of the principal - Interpretation of Clearing and Forwarding Agent Service - Held that:- While arriving at this conclusion, we also go by the trade understanding based on sheer common sense, which is often uncommon. Because a buyer buys only rice and not wheat in a grocery shop, which claims to sell "wheat and rice", the shop cannot cease to be a shop selling "wheat and rice". In the same way, rendering only "forwarding" service cannot make the appellant cease to be a "Clearing and Forwarding Agent", so as to save him from the tax. Some customers may want only clearing operations, while some forwarding, and others both. The expression "clearing and forwarding operations" is a compendious expression of nature of services offered, any of which will bring the service providers in the tax net of this category. Moreover, in the process of forwarding operations - clearance stages may arise such as at octroi posts or subsequent transits - appellant is engaged in providing transport service as transporter and the initial service of temporary storage of the vehicles at or near railway sidings, which is eventually for a few days subject to availability of the rail rakes, will not render the appellant to fall under the category of ‘Clearing & Forwarding Agent' - Following decision of MEDPRO PHARMA PVT. LTD. Versus COMMISSIONER OF C. EX., CHENNAI [2006 (6) TMI 2 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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2014 (3) TMI 306 - SC ORDER
Levy of Service Tax on Chit Business - Scope of the term "services" - section 65B(44) - Negative list - transaction in money - SC dismissed the appeal against the decision of Delhi High Court [2013 (4) TMI 630 - DELHI HIGH COURT] wherein it was held that, there can be no levy of service tax on the footing that the services of a foreman of a chit business constitute a taxable service. - Decided against the revenue.
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2014 (3) TMI 304 - CESTAT KOLKATA
Waiver of pre-deposit of Service Tax - Cargo Handling Service - Composite services of shifting/transportation of materials - GTA Services - Held that:- Applicant in this case has got various work orders from M/ s.UML for unloading, loading, track cleaning and transportation of iron ore from Railway siding to the premises of M/ s.UML and stacking thereof at M/ s.UML . In other cases the contract was for hiring of the equipments to M/ s.UML's Railway siding for hoping of iron fines, cleaning of rakes, handling of materials in the works of M/ s.UML etc.
We find from the various contracts that rate quoted is for composite services and on per M.T. basis. As per note appended to the contract order the above rates are based on considering the day time traffic restriction. Further in order to cope up with the increased movement of additional quantity of raw material through Railway siding, adequate number of vehicles (dumpers/trucks) is to be deployed on regular basis. It is to be ensured that all the lorries/dumpers used for carrying out the job are fully equipped with all valid genuine documents such as tax token; owner-book, insurance policy, driving licence etc. so that there will be no problem/non-compliance en route till the delivery of the materials at the stacking yard. Any liability arising on lapse on this account will be to the Applicant's account. No increase in transportation rate will be entertained during the contract period. However, the same may be reviewed at discretion of M/ s.UML . It appears from the foregoing facts that transportation is the principal activity and the loading and unloading are only ancillary to the activity of transportation.
In case of composite services of shifting/transportation of materials where loading and unloading is ancillary to the main activity of transportation are held to be classifiable under GTA Services. Further the various activities undertaken by the contractor inside the works were held to be non-taxable. We also find that in this case M/s. Usha Martin Ltd. has already discharged the tax on GTA Services under the Reverse Charge Mechanism. In these circumstances we are prima facie of the view that all the Applicants have made out prima facie case for waiver of pre-deposit of entire amount of dues adjudged against each of them. Accordingly pre-deposit of dues adjudged against each of the Applicants is waived and its recovery stayed during pendency of the Appeals - Following decision in Om Shiv Transport [2013 (5) TMI 110 - CESTAT NEW DELHI] and M/s. R.K.Transport Company [2012 (3) TMI 271 - CESTAT, NEW DELHI] - Stay granted.
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2014 (3) TMI 303 - CESTAT MUMBAI
Denial of refund claim - Export made under drawback claim - Notification No.41/2007-ST dated 06/10/2007 - Held that:- appellant has violated the conditions stipulated in Notification No.41/2007-ST, as regards the non-availment of draw back on export of goods. Whether the claim is made in a routine manner or otherwise, it does not make any difference - Decided against assessee.
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2014 (3) TMI 302 - CESTAT MUMBAI
Denial of the benefit of exemption under Notification No. 12/2003-ST - Abatement of 67% under notification No.1/2006-ST - Penalties under sections 76, 77 and 78 - Held that:- matter referred to President for reference to the 3rd Member with the following questions:
(1) Whether the sub-contractor of a main contractor is liable to discharge the service tax liability on the services provided by him as held by the Ld. Member (Technical) relying on the decision of the Larger Bench of this Tribunal in the case of Vijay Sharma & Co. [2010 (4) TMI 570 - CESTAT, NEW DELHI] and the decision of this Tribunal in the case of Sew Construction Ltd. [2010 (11) TMI 469 - CESTAT, NEW DELHI]
OR
The appellant being a sub-contractor is not liable to pay service tax prior to 23/08/2007 in view of the clarification issued by the Revenue vide Master Circular No. 96/7/2007 dated 23/08/2007
(2) Whether the appellant is liable to penalty under the provisions of Section 76 & 78 of the Finance Act, 1994 as held by the Ld. Member (Technical) relying on the decisions of the Hon'ble High Court of Kerala in the case of Krishna Poduval [2005 (10) TMI 279 - Kerala High Court], and of the Hon'ble Apex Court in the case of Chairman SEBI Vs. Shriram Mutual Fund & Another [2006 (5) TMI 191 - SUPREME COURT OF INDIA] and Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA].
OR
The appellant is not liable to penalty under Section 76 & 78 of the Finance Act, inasmuch as the appellant had paid the tax with interest before issue of show-cause notice as held by the Ld. Member (Judicial).
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2014 (3) TMI 301 - CESTAT MUMBAI
Sale of Space or Time for Advertisement Service - Intention to evasion - Appellant entered into agreements with certain private agencies whereby the sold their exclusive rights over space belonging to them such as bus shelters, street lights, municipal property, etc., to the private agencies whereby the private agencies were entitled to allot the space for advertisement purposes on rental basis - Held that:- Since the appellant herein is a Municipal Corporation and it is difficult to attribute intention to evade tax on the part of such bodies, we are of the prima facie view that the demand would survive for the normal period of limitation. In the present case, as per the statement furnished by the appellant the demand for normal period would be approximately Rs. 49 lakhs. No financial hardship has been pleaded by the appellant - Conditional stay granted.
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2014 (3) TMI 270 - CESTAT MUMBAI
Benefit of Notification No. 8/2005-ST dated 1.3.2005 - Cutting and slitting of coils - Job Work - Whether this activity amounts to manufacture or not - Held that:- The activity undertaken by the appellant is only slitting/cutting of length of HR/CR coils of stainless steel. The Hon'ble Delhi High Court in the case of Faridabad Iron & Steel Traders Association - [2003 (11) TMI 107 - HIGH COURT OF DELHI] held that the cutting and slitting of coils would not amount to manufacture. Therefore, the contention of the appellant that cutting and slitting of HR/CR coils would amount to manufacture is no longer sustainable in view of the decisions cited supra. However, the contention of the appellant that it is only an intermediate process and the goods after slitting/cutting were used in further manufacture of SS pipes/tubes on which duty liability is discharged, merits consideration. Notification No. 8/2005-ST provides that in the case of service undertaken by way of job-work and the goods are returned to the original supplier for further manufacture, the benefit of the said exemption would apply. This aspect has not been examined by the adjudicating authority at all - Matter remanded back - Decided in favour of assessee.
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2014 (3) TMI 269 - CESTAT KOLKATA
Waiver of pre-deposit of Service Tax - Penalty u/s 77 & 78 - commercial or industrial construction service - Cargo handling service - Held that:- It is the claim of the Appellant that services under the said category, during the relevant period, had been rendered to various Government agencies, for which they were not required to pay any Service Tax. In support, the Appellant has referred to and relied upon the Board's Circular No.116/10/09-ST dated 15.09.2009. It is the grievance of the department that since the Appellant could not produce relevant work orders, invoices/bills, the claim of the, Appellant could not be examined. However, prima facie we find from the enclosures submitted along with the Appeal Memorandum that the Appellant were in correspondence with the department from time to time in submitting the requisite documents - Following decision of Commissioner of Central Excise, Ranchi vs. Modi Construction Company [2011 (4) TMI 598 - JHARKHAND HIGH COURT] - Matter remanded back subject to pre-deposit of Rs. 50 Lakhs.
Regarding cargo handling service - Held that:- The activity of cargo handling within the factory premises, prima facie, is covered by the judgement of this Tribunal in the case of Modi Construction Co. which has been later upheld by the Hon'ble Jharkhand High Court. - since we are remanding the major portion of the demand we also expect that the Ld.Commissioner to examine this issue also in the light of the aforesaid judgements. - Matter remanded back subject to pre-deposit in part.
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2014 (3) TMI 268 - CESTAT AHMEDABAD
Demand of service tax - Adjudicating authority did not calculate tax liability under various services - Adjudicating authority in the order potion has confirmed demand of Rs. 1,09,68,041/- as an amount liable to be paid by the appellant under Section 73 of the Finance Act, 1994. As against the confirmed demand, the adjudicating authority in order-in-original has specifically recorded that service tax has been demanded on various services; as enumerated herein earlier. If that be so, it is bounden duty of the adjudicating authority to come to a conclusion as to exact amount of tax liability on individual service, if any, rendered by the appellant after examining the records. In our view, the issue needs reconsideration by the adjudicating authority to come to the conclusion and work out the service tax liability under individual service - Decided in favour of assessee by way of remand.
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2014 (3) TMI 267 - CESTAT MUMBAI
Demand of service tax - Consulting Engineer’s Service - Operation and maintenance of windmills - Held that:- What the appellant has performed is operation and maintenance of windmills and not rendering any advice, consultancy or technical assistance in any field of engineering, which is the criterion for classifying the service under the category of ‘Consulting Engineer’s Service’. Such executory services does not come under the purview of ‘Consulting Engineer’s Service’ - Decided in favour of assessee.
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2014 (3) TMI 266 - CESTAT MUMBAI
Classification of service - Consulting Engineer’s Service or Survey and Exploration of Minerals Service - Held that:- From the findings of the adjudicating authority, it is evident that no service relating to advice, consultancy or technical assistance had been rendered by the respondents. Further, ‘Survey and Exploration of Minerals’ were brought under the tax net in budget 2004. Section 65(104a) defines “Survey and Exploration of Minerals means geological, geophysical or other prospecting surface or sub-surface surveying or map making survey in relation to location or exploration of deposits of mineral, oil and gas.” Section 65(105)(zzv) defined taxable service as “any service provided or to be provided to any person, by any person, in relation to survey and exploration of mineral.” When the activity undertaken by the respondents are considered in the light of these definitions, it is clear that such activity would merit classification under “Survey and Exploration of Minerals”. It is a well settled position in law that when an activity is covered under a specific entry, which came later, then service tax cannot be demanded on the same activity under a different category for the prior period.
For the period prior to Budget 2004, the activity undertaken by the respondents cannot be classified as ‘Consulting Engineer’s Service’ especially when ‘Survey and Exploration of Minerals Service’ has not been carved out of ‘Consulting Engineer’s Service’ - Decided against Revenue.
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2014 (3) TMI 265 - CESTAT MUMBAI
Classification of service - Consulting Engineer’s Service - supply of know-how by way of patents, trade secrets, processes, etc. - Held that:- Consulting Engineer’s Service relates to rendering of advice, consultancy or technical assistance in any branch of engineering to a client by a consulting engineer or an engineering firm. The said service does not, in any way, relate to supply of technical know-how which the respondent has undertaken in the present case. They have supplied to the client in India know-how by way of patents, trade secrets, processes, etc. so that the recipient in India can undertake manufacture of licensed products. In consideration thereof, royalties/licence fees had been paid by the recipient to the service provider. This activity, by no stretch of imagination, can be considered as coming within the purview of ‘Consulting Engineer’s Service’ - activities undertaken by the respondent in the case is not exigible to service tax under the category of ‘Consulting Engineer’s Service’ - Decided against Revenue.
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