- 2019 (10) TMI 1258
Works Contract - Non-payment of service tax - suppression of value of taxable services - applicability of extended period of limitation provided for under the proviso to section 73(1) of the Act - whether the amount received by the Appellant for construction of the houses for the Rajasthan Housing Board would attract payment of Service Tax under category of Works Contract? - HELD THAT:- The definition of a residential complex” leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by ....... + More
- 2019 (10) TMI 160
Club and association services - Doctrine of mutuality - Nature of transaction - sale or service - scope of sale and service - Failure to make payment of sales tax - sale of food and drinks to the permanent members during the quarter ending 30-6-2002 - scope of “sale“ in terms of Section 2(30) of the West Bengal Sales Tax Act, 1994 - Deemed transfer - club and association services -taxability under service tax - situation post 1/7/2012. HELD THAT:- When profits and gains of a mutual insurance company are sought to be brought to tax, they are so done by express reference to the fact that the business of insurance is carried on by a mutual insurance company. The absence of any such language in subclause (e) of Article 366(29-A) is also an important pointer to the fact that the doctrine of mutuality cannot be said to have been don....... + More
- 2019 (7) TMI 1185
Rejection of Refund claim - export of services or not - Rule 6A of the Service Tax Rules, 2004 - HELD THAT:- It is an undisputed fact that the appellant did not reverse the equal amount as required by the condition at paragraph 2(h) of Notification No. 27/2012 (supra). But the fact also remains that there was no provision in the ACES system to debit the value of refund and also the fact that the entire credit which was carried forward in TRAN-1 stood reversed by the appellant voluntarily in its GSTR-3B filed for the month of April 2018 - The above facts are sufficient compliances with the condition at paragraph 2(h) since post G.S.T., the scenario is different than the one prevailing prior to G.S.T. regime. Otherwise, it would become an impossible task for an assessee, more so when the filing of ST-3 returns itself was done away with. The denial of refund is not in accordance with law - appeal allowed - decided in favor of appellant.
- 2019 (7) TMI 908
Reversal of CENVAT Credit - providing of taxable as well as exempt service - maintenance of separate records for providing taxable service and exempted service - procedures to be followed under the provisions of Rule 6(3) of the CCR, 2004 when failed to maintain separate records for taxable and exempted services - Rule 2(1) of Cenvat Credit Rules 2004 pertaining to “input service” not taken into cognizance - HELD THAT:- With effect from 13.4.2016, Explanation 3 was amended specifically dealing with a situation as in the present case, where a deeming fiction was created that for the purposes of Rule 6 of the Rules, exempted services as defined in clause (e) of rule 2 shall include an activity, which is not a service as defined in section 65B(44) of the Finance Act, 1994 provided that such activity has used inputs or input servi....... + More
- 2019 (7) TMI 58
Utilization of CENVAT Credit for payment of service under reverse charge mechanism (RCM) - section 66A of the Finance Act 1994 - Rule 3(4) of the Cenvat Credit Rules, 2004 - HELD THAT:- The only distinction which Mr. Dwivedi, for the Revenue seeks to make in respect of the above decisions is that the above cases were concerned with discharge of service tax liability on reverse charge basis in respect of GTA service. In this case, it is discharge of tax liability on services received from foreign bank. In this case also, the respondent discharge the tax liability on reverse charge basis under section 66A of the Finance Act, 1994. Thus, this distinction sought to be made out is not a distinction to hold otherwise in the present facts. Appeal not entertained and is dismissed.
- 2019 (6) TMI 1361
CENVAT Credit - input services - Goods Transport Agency service - time limitation - reverse charge mechanism - merger of service tax and Cenvat credit as on 30/12/2004 - HELD THAT:- Tribunal, relied on decisions of Delhi High Court in the cases of CST Vs. Hero Honda Motors Ltd. [2012 (12) TMI 734 - DELHI HIGH COURT] and CC Vs. Nahar Industrial Enterprises Ltd. [2010 (5) TMI 608 - PUNJAB AND HARYANA HIGH COURT] to allow the claim. In both the above cases, the court after placing reliance upon Rule 3(4)(e) of the Cenvat Credit Rules, 2004 and section 68 of the Finance Act, 1994 held that the Cenvat credit available could be utilised by the respondent to discharge its obligation of payment of service tax on GTA service on reverse charge mechanism. No distinguishing features in fact or in law are brought to our notice which would justify our ....... + More
- 2019 (6) TMI 1320
Refund of service tax paid which the appellant is not liable to pay - rejection on the ground of time limitation - period April 2006 to February 2008 - SCN issued on 12.01.2010 - whether the time limit prescribed under Section 11B of the Central Excise Act, 1944 is applicable in a case where tax is not payable by the appellant or not? - HELD THAT:- The said issue has been examined by the Hon’ble High Court of Delhi in the case of NATIONAL INSTITUTE OF PUBLIC FINANCE AND POLICY VERSUS COMMISSIONER OF SERVICE TAX [2018 (8) TMI 1524 - DELHI HIGH COURT] - the appellant were not liable to pay service tax, therefore, the time limit prescribed under Section 11B of the Central Excise Act, 1944 for filing the refund claim is not applicable to the facts of this case. Refund allowed - appeal allowed - decided in favor of appellant.
- 2019 (6) TMI 518
Liability of service tax on Sub-contractor when the main contractor has discharged Service Tax liability on the activity undertaken by the sub-contractor - Construction services - Commercial or Industrial Construction services - Works Contract services - Transport of Goods by Road in a Goods Carriage services - matter was placed before the Larger Bench for decision. HELD THAT:- In the scheme of Service Tax, the concept of CENVAT Credit enables every service provider in a supply chain to take input credit of the tax paid by him which can be utilized for the purpose of discharge of taxes on his output service. The conditions for allowing CENVAT Credit have been provided for in Rule 4. The mechanism under the CENVAT Credit Rules also ensures that there is no scope for double taxation - In the face of various provisions, it may not be open to....... + More
- 2019 (6) TMI 414
CENVAT Credit - trading activities - common inputs used for providing taxable services as well as in trading activity - non-maintenance of separate records - Whether the assessee could claim the credit on input which were not services? - extended period of limitation - HELD THAT:- The reason assigned by the High Court in passing the impugned order needs no interference as the same is in consonance with law. Appeal dismissed.
- 2019 (5) TMI 1299
Taxability -Transfer of of Land Development Rights - Tri-partite agreement - it was alleged that the appellant has transferred development rights, therefore, they are liable to pay service tax on the said activity - Imposition of penalty - whether the appellant has transferred any land development right in favour of M/s DLF Ltd. or not? HELD THAT:- As per the business module of M/s DLF Ltd. they are engaged in the business of Real Estate Development of integrated township and construction. As per their business module, they appointed the appellant to purchase the land on their behalf and thereafter to obtain certain permissions from various Govt. Department and to handover the land to DLF Ltd. as per agreement dated 02.08.2006 for further development and thereafter to transfer the same to the appellant for construction and sale the flats/....... + More
- 2019 (5) TMI 376
Commercial or Industrial Construction Service - Works Contract Service for construction of railway sidings/tracks - composite contracts - demand of service tax - period from October 2004 to June 2007 - demand of interest on amount collected as service tax but not deposited - HELD THAT:- The execution of works in respect of roads, Airports, Railways, Transport Terminals, bridges, tunnels, dams and ports are excluded from the purview of levy of the said category of service. The department relies upon the definition of Railways contained in Section 2(31) of the Railways Act 1989. It has to be mentioned that the definition of the services in Section 65(25b) or Section 65(105)(zzzza) does not make any differentiation between a Government railway or a non government railway. These sections merely uses the word ‘railways’. The Railwa....... + More
- 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 1428
Levy of service tax - Supply of Tangible Goods Service - venting of refrigerators to their dealers/ distributors - Held that:- It is an admitted fact that the appellant-assessee have delivered the refrigerator to the distributor dealer. Such dealer/ distributor is in effective control of the refrigerator post delivery. The appellant only receives an annual rent and on such a rent admittedly appellant have paid VAT/Sales Tax - the appellant is not liable to pay service tax on this activity under the category SOTG. Levy of service tax - reimbursement of advertisement expenses and other sales promotion expenses from their principal Coco-Cola Co. Ltd - Held that:- There is no element of receipt of any found toward service. Further, the appellant is not a service provider to Coca-Cola Company Ltd., they are working on principal to principal ba....... + More
- 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 1630
Classification of services - manpower recruitment or supply agency service - reverse charge mechanism - HELD THAT:- The appeal is dismissed in terms of the signed order.
- 2019 (2) TMI 1497
Maintainability of appeal - issue relating to Classification of services - cargo handling service or GTA Service - respondent is an association, whose members are transport operators engaged in the business of transportation of goods entrusted by the customers - Held that:- It is not in dispute that if the show cause notices culminate into an order, the appeal would lie to this Court. When the show cause notices are issued to respondent nos.2 and 3-members, the writ petition is filed by the first respondent-association and the recipients of show cause notices who are respondent nos.2 and 3. As we are not in agreement with the view taken by the High Court, in entertaining the writ petition against show cause notices, we refrain from recording any finding on contentious issues which arise for consideration. If any finding is recorded by thi....... + More
- 2019 (2) TMI 772
Levy of service tax - construction services - service tax liability on the builders for the services provided before 01.07.2010 - Held that:- The self same issue was considered by the Bench in detailed in the case of M/s Mehta & Modi Homes [2019 (2) TMI 476 - CESTAT HYDERABAD] and as also in the case of M/s Kolla Developers & Builders [2018 (11) TMI 164 - CESTAT-Hyderabad] and held that prior to 01.07.2010 service tax liability will not arise on the builders. All the impugned orders are unsustainable - 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 (2) TMI 26
Business Auxiliary Services - assessee had received amount towards dealer commission - whether the amount received attains the character of consideration and also whether the activity falls under BAS? - Held that:- Though in the Show Cause Notice it is alleged that the activity would fall under Sub-Clause (i) of Section 65(19), the Original Authority has held that the appellant is acting as a Commission Agent. The definition of Commission Agent will show that Commission Agent is a person who acts on behalf of another and causes sale or purchase of goods - The appellant, in the present case, undisputedly, is not acting on behalf of the vehicle dealer for the purchase or sale of vehicles. Merely because vehicle is intended to be purchased from the dealer, the Bank would not disburse the loan. The Bank has to be satisfied with other conditio....... + More
- 2019 (1) TMI 1435
Condonation of delay in filing appeal - time limit of filing of appeal before the Commissioner (Appeals) - Section 85 of FA - Held that:- The adjudication order was received by the appellant on 28.03.2015 and thereafter, the appeal was preferred before the office of the Learned Commissioner (Appeals) on 22.07.2015. The Commissioner (Appeals) is not empowered to condone the delay in late filling of appeal beyond the statutory limit of three months - In this case, since admittedly the appeal was filed beyond three months from the date of receipt of the adjudication order - the Learned Commissioner (Appeals) being a creature under the statute, has rightly dismissed the appeal filed by the appellant. Appeal dismissed - decided against appellant.