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- 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 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 (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 (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 839
Cargo Handling Services - activity of loading of coal from Railway siding into Railway wagons making use of Pay Loader - transport of coal from the pit head to various other points within mines - time limitation - penalty. Activity of loading of coal from Railway siding into Railway wagons making use of Pay Loader - Held that:- The activity has been held to be liable for payment of Service Tax under ‘Cargo Handling Services’ in the case of Gajanad Agrawal v. Commissioner [2008 (6) TMI 163 - CESTAT KOLKATA], where it was held that agreement of the parties that time was essence of the contract, nature of activity that was carried by the Appellants squarely falls under the definition of cargo handling service. Any activity incidental to freight of cargo is liable to be taxed under “cargo handling service” - the levy of service Tax on merit i....... + 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 1675
Demand - Section 73(1) of the FA, 1994 - Port Services - Renting of Immoveable Property services - HELD THAT:- Apart from the fact that there is a delay of 639 days in filing the appeal for which no satisfactory explanation is given, there are no merits in the appeal - Civil Appeal is dismissed both on the ground of delay as well as on merits.
- 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.