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- 2019 (4) TMI 524
Audit under Service Tax - Production of documents for the purposes of Audit of accounts/records - constitutional validity of Rule 5A of the Service Tax Rules, 1994 - competence of the authority to issue the impugned notice - very long list of documents or not - Held that:- The Court is of the view that the Petitioner has made out a prima facie case in its favor to grant of further stay of proceedings pursuant to the impugned letter/notice dated 20th February, 2019. It is accordingly directed that till the next date of hearing, further proceedings pursuant to the impugned letter dated 20th February, 2019 shall remain stayed. List on 1st August, 2019.
- 2019 (3) TMI 1323
Refund of unutilized CENVAT Credit - rejection on the ground that the claimants have not debited the amount claimed as refund from their CENVAT credit account at the time of making the claim and the FIRCs have not been furnished for the relevant period - Held that:- It was held in the case of SANDOZ PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR [2015 (10) TMI 882 - CESTAT MUMBAI], where it was held that the condition in question is not such that it could debar the appellant from claiming the refund. Thus, the appellant is eligible for claiming the refund - appeal allowed - decided in favor of appellant.
- 2019 (2) TMI 476
Taxability - Construction of Complex Services - period April, 2006 to December, 2010 - Held that:- On an identical issue, in the case of Kolla Developers & Builders [2018 (11) TMI 164 - CESTAT HYDERABAD] this Bench has held that construction of residential complex by the builders prior to 01.07.2010 is not taxable in terms of CBEC Circular No. 108/2/2009-ST dated 29.01.2009 and No. 151/2/2012-ST dated 10.02.2012 - appeal allowed - decided in favor of appellant.
- 2019 (1) TMI 1111
Construction services - works contract service - appellant was not rendering any service to their clients but they had collected the amount representing as service tax - Section 73A of the Finance Act, 1994 - demand of interest on short deposit of amounts under Sec.73A in terms of Section 73B of the Act - penalty u/s 77 of FA. Whether or not the appellant is liable to pay service tax on works contract service as per the Construction Agreement which they entered into to complete the incomplete houses of their clients? - Held that:- The appellant has undertaken to complete semi-built houses as per the copies of Construction Agreement produced by them before us. They are neither residential complexes nor new buildings or civil structures for commerce or industry. Therefore, they are clearly, not covered under the definition of Works Contract....... + More
- 2018 (12) TMI 305
Liability of Service Tax - amount paid for services received from the foreign company under reverse charge mechanism - CENVAT Credit - common input services used for trading activity - Rule 6(3A) of the CENVAT Credit Rules, 2004 - Extended period of limitation. Non-payment of service tax - Service tax on services received from the foreign company - service tax with interest and penalty paid before issuance of SCN - Held that:- The appellant had accepted their liability and paid the entire amount of Service Tax with interest and later availed CENVAT Credit of the Service Tax paid, as mentioned in their written submission and the services stated in the said work-sheet were taxable services - analyzing the issue raised about proper classification of the service, in our opinion, would become more of academic exercise. consequently, the confir....... + More
- 2018 (11) TMI 1464
Penalties u/s 76 and 78 of FA - Short payment of service tax - service tax paid belatedly for the period from April 2006 to June 2008 - Held that:- On perusal of the documents such as the list of sundry debtors etc., it is seen that there was huge amount pending as receivables. So also they had to meet expenses for salary, accident compensation of employees provided under manpower supply service - The department does not have a case that any of the transactions were unaccounted or that they had been indulging in a parallel accounting. It is commonly understood that the employees supplied through manpower supply service have to be given the salaries within due time. If the service receivers delay the payment, it would cause much hardship to the service provider as they have to make the statutory payments such EPF, ESI etc. to the Governmen....... + More
- 2018 (11) TMI 1150
Penalty u/s 76, 77 and 78 - Non-payment of Service tax - appellants though collected service tax, had not deposited the same to the Government - no intent to evade - Held that:- The appellants, though initially were paying service tax and were filing returns properly, had defaulted payment of service tax and filing of returns after 2005-06. The company was going through much financial hardship and it took some time for them to recover and for that reason, the service tax liability got accumulated. Nothing is brought out from evidence that there was any positive act of suppression with an intention to evade payment of service tax. Other than the delay caused due to financial crisis, we do not find any material to establish an intention to evade payment of service tax. This is a fit case to invoke Section 80 since the appellant has put forw....... + More
- 2018 (11) TMI 713
Cenvat Credit - towers, shelter and accessories used for providing telecom services - whether immovable property or not - towers, shelter to be treated as ‘accessories’ either as capital goods or input goods or not - installation after receipt of such towers and shelters at their premises (i.e. tower sites) - Held that:- the debate mainly centers round the definition of ‘capital goods’ in clause (a) of Rule 2 of the Credit Rules. - all components, spares and accessories of such capital goods falling under chapter 85, would also be treated as Capital goods. The towers and shelters support the BTS in effective transmission of the mobile signals and therefore, enhance their efficiency. The towers and shelters plainly act as components/ parts and in alternative as accessory to the BTS and would are covered by the defin....... + More
- 2018 (11) TMI 164
Construction of residential complex Service - non-discharge of Service tax - abatement in terms of N/N. 01/2006-ST dated 01.03.2006 - Whether construction activity by a builder prior to 01.07.2010 is liable to service tax - Demand of interest and penalty. Held that:- It is evident from the record that the relevant period was April, 2008 to September, 2008 which is prior to 01.07.2010 and the service provided was construction of residential complex by the builder which, as clarified by the CBEC in their circular dated 10.02.2012 was not taxable during the relevant period. The legal position is settled and the appellant was not required to pay service tax on the services allegedly rendered by them during the relevant period - appeal allowed - decided in favor of appellant.
- 2018 (10) TMI 1642
CENVAT Credit - input services - transportation of goods from the factory to the buyer’s premises - place of removal - CBEC circular no. 116/23/2018 dated 08/06/2018 - Held that:- CBEC after considering the decision of Apex Court in the case of Roofit Industries Ltd. [2015 (4) TMI 857 - SUPREME COURT] and Ispat Industries Ltd. [2015 (10) TMI 613 - SUPREME COURT], has come to a conclusion that there can be some exceptions to the general rule laid down regarding place of removal - the matter is remanded to the original Adjudicating authority for re-examination in the light of CBEC order - appeal allowed by way of remand.
- 2018 (10) TMI 1565
Refund of tax - export of services - Lack of judicial discipline - Held that:- In the impugned order, the first appellate authority throwing to the winds, the principles of judicial discipline and binding order passed by higher appellate forum, not only reiterated his own stand, which were set aside by the Tribunal but the same is sought to be defended by the Department with the aforesaid words quoted above. The total callous, negligent and disrespectful behaviour shown by the Departmental authorities in this Court should not be tolerated at all. It is this kind of lack of judicial discipline which if it goes unpunished, will lead to more litigation and chaos and such public servants are actually a threat to the society. The cost is quantified at ₹ 1 lakh (Rupees One Lakh only) to be deposited by Mr.Suresh Kumar, Commissioner of Ser....... + More
- 2018 (10) TMI 1557
CENVAT Credit - Construction of real estate projects - Rule 3 of the Cenvat Credit Rules, 2004 - whether the Appellants are required to reverse any portion of the Cenvat Credit availed by them, after receipt of Completion Certificate for the projects, since thereafter, they will not be discharging Service Tax liability on properties sold thereafter, where no advance was received prior to receipt of Completion Certificate at all? Held that:- The output service must first be exempt service. That upon receipt of Completion Certificate for the projects, the output activity of sale of residential units becomes “non-service” as per provisions of Section 65B of the Finance Act, 1994 read with definition of the term “exempt service” under Rule 2(e) of the CCR, 04. This is further supported by specific amendment carried out in Rule 6(1) of the CCR....... + More
- 2018 (10) TMI 1008
Service Tax audit of a private agency - Rule 5A of the Service Tax Rules, 1994 - Held that:- Subsection (2) of Section 174 is a Saving Clause and it inter alia provides that the amendment of the Finance Act, 1994 to the extent mentioned in Subsection (1) of Section 173, shall not revive anything not in force or existing at the time of such amendment or repeal. There was no saving of Rule 5A in such manner that fresh proceedings for audit could be initiated in exercise of powers under the said Rule. We, therefore, have serious doubts whether, with the aid of Rule 5A of the Service Tax Rules, 1994, the CAG can carry out compulsory Service Tax audit of private agencies like the petitioner. Issue Notice, returnable on 28.11.2018.
- 2018 (10) TMI 476
Renting of immovable property - Co-ownership - Association of persons - inherited property - SSI Exemption - clubbing of clearances - Held that:- The demand has been raised on all the co-owners to treat them as association of person and levy service tax on the amount of rent received by them. When the co-owners are treated individually, the amounts undoubtedly fall below the threshold exemption. The Tribunal in the case of Sarojben Khulsanchand & Ors. Vs. Commissioner of Service Tax, Ahmedabad [2017 (5) TMI 240 - CESTAT AHMEDABAD], had considered the similar issue and held that The service Tax Registration of individual assessees for collection of service tax is PAN based, hence, collection of service tax from one of the co-owners, against his individual Registration for the total rent received by all co-owners separately, is neither supp....... + More
- 2018 (10) TMI 400
Renting of immovable property - Joint ownership - clubbing of clearances - SSI Exemption - Department was of the view that since co-owners have an undivided share in the property, all the co-owners have to be treated as an association of person and the rental income has to be combined together - case of appellant is that that the department cannot consider all the four co-owners as an association of person so as to demand service tax by combining the rent by each co-owners. Held that:- When the co-owners are treated individually, the amounts undoubtedly fall below the threshold exemption. The Tribunal in the case of Sarojben Khulsanchand & Ors. Vs. Commissioner of Service Tax, Ahmedabad [2017 (5) TMI 240 - CESTAT AHMEDABAD], had considered the similar issue and held that The service Tax Registration of individual assessees for collection ....... + More
- 2018 (10) TMI 269
CENVAT Credit - input services - insurance services provided by the appellant to workers working at their site, as per the mandatory requirement of labour laws - denial of credit on the ground that the payment of insurance premium for availing the insurance policy stand excluded from the definition of “input services”, pursuant to the definition of “Input Services”, after 01.04.2011. Held that:- The Tribunal interpreted Clause (C) above and stated that in so far as the expression “and” used between two expressions “health insurance” and “Travel benefits” is disjunctive and is not required to be read along with the expression “health insurance”. - Further, it held that the exclusion clearly mentions various services, including life insurance and health insurance, as no....... + More
- 2018 (9) TMI 1718
Works Contract Service - Construction of Residential Complex Service - appellant were paying service tax under Construction of Residential Complex Service from 16.06.2005, however stopped doing so from 01.08.2006 considering the activities to be “Works Contract” based on CBEC circular dt. 1.8.2006. Assessee resumed payment of service tax under works contract w.e.f. 1.6.2007 availing the benefit of reduced liability under Works Contract (compensation scheme for payment of service tax) Rules, 2007 - demand of service tax for different periods under different heads - Composition Scheme - CENVAT Credit. Period up to 1.6.2007 - Held that:- As the law laid down by the judgment of the Hon’ble Apex Court in the case of L&T Ltd. [2015 (8) TMI 749 - SUPREME COURT], there will not be any service tax liability on the assessee. Appeals of the assessee....... + More
- 2018 (9) TMI 1149
Construction Services - composite Works Contracts - pure services - Department was of the view that such payment is not proper for the reason that the services cannot be classified as Works Contract Service and also because appellants have not exercised their option for payment of service tax under Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007. Held that:- The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service - For the period after 1.6.2007, service tax liability under category of ‘commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, ‘Construction of Co....... + More
- 2018 (9) TMI 836
Maintainability of appeal - Classification of service - Container Freight Station - Storage and warehousing services or Cargo handling services? - Scope of Cargo Handling Services - whether the consideration which is received under the head “Cargo Handling” services is in fact consideration received for services classifiable under “Storage and Warehousing” services as contended by the Revenue? Held that:- In view of Section 35G(1) of the Act which specifically prohibits an appeal being entertained by this Court, if it is an order of the Tribunal relating amongst other things to the determination of any question having arisen on account of “rate duty” or the “value of goods” for the purposes of assessment - the appeal is not maintainable. The contention of the Appellant that Section 35G of the Act, has no application to the Finance Act, 19....... + More
- 2018 (9) TMI 825
Penalties - payment of service tax with interest before issuance of SCN - whether in the given facts of the case, the appellants can be extended the beneficial provision of Section 80 of the Act so as to waive the penalties imposed on them under Section 76 and 77 ibid? - Held that:- In the impugned order, a clear chit has been given to the appellant that there was no mala fide intention on their part and that proviso to Section 73(1) of the Act has been invoked without any evidence. As the Department has not come in appeal against this finding of the Commissioner and subsequent decision not to impose penalty under Section 78 ibid., it would only be presumed that the Department has accepted the impugned order in toto, including the said findings - Once it has been held that service tax has not been paid on account of fraud or collusion or ....... + More