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Showing 461 to 480 of 686 Records
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2009 (6) TMI 447
Rebate of Service tax-Export of services-Notification No. 12/2005 dated 19.04.2005- The appellant is a wholly owned subsidiary of M/s. Dell International Inc.-USA. They are a 100 per cent EOU with Software Technology Parks of India (STPI). They provide business process outsourcing services like call centre, IT support and back office data processing. These services are provided exclusively to Dell Group Companies and their customers outside India and all the services are exported out of India. The service fee for providing the services is the entire cost of the appellants with a marking of 10 per cent. The appellant exports 100 per cent of his services and the payment for these services exported is received in convertible foreign exchange. The input services were used for providing output services. In this case the appellant filed two rebate claims under Notification No. 12/2005-ST issued under Export of Service Rules, 2005 for the refund of the service tax paid on the input services for the period from 3/2005 to 9/2005 and 10/2005 to 2/2006, but this rebate claim was rejected on the following three grounds-(1) non-filing of necessary declaration, (2) to be filed before Jurisdictional Central Excise Authorities (3) appellant had not paid any service tax on the services exported by them. Held that- once the taxable services is exported and various input services have been utilized for providing the output service the appellant could be entitled for the rebate which is equal to the service tax paid on the input services. Also held that the appellant fulfill the five condition of the said notification no. 12/2005, thus the appellants are entitled for the rebate in respect of all the rebate claims. The appeal is allowed.
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2009 (6) TMI 440
Cenvat Credit- Export o goods- The assessee was engaged in the manufacture of Psyllium Seed Husk and was exporting the entire products. It claimed refund of service tax paid on services used in the manufacture of exported goods cleared under bond. The original authority rejected the refund claim of the assessee on the ground that the goods of the assessee were exempted from duty and, therefore, the refund claim was unsustainable. On appeal, the Commissioner(Appeals) upheld the action of the original authority. But the Tribunal in the light of the decision of CCE v. Drish Shoes Ltd. 2009 (90) RLT 686 (Delhi - CESTAT); held that-inputs used in manufacture of exempted final product which is exported, input credit and its refund are admissible under rule 5 and 6 of Cenvat Credit Rule 2004, thus the impugned order is set-aside and appeals are allowed with consequential relief.
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2009 (6) TMI 439
Limitation- Time Bar- the respondent are engaged in the manufacture of excisable goods and utilizing the service of Goods Transport operators during the period 16.11.1997 to 01.06.1998. In the light of the decision of CCE v. Gujarat Carbon & Industries Ltd. 2008 -TMI - 30244 - SUPREME COURT, in which it was hold that during the period prior to 2003, section 73 applied only in case of assessee who came under the provision of section 71A, like the assessee herein, was not bought under the net of section 73 prior to 203, held that- the demand of interest and penalty imposed on the assessee is not sustainable. Uphold the impugned order and reject the appeal.
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2009 (6) TMI 426
Condonation of delay – Limitation – There is 503 days delay in filing appeal due to the Impugned order was received by one of the ex-employ of the appellant. He left the service without bringing to the notice of the appellant the receipt of the Impugned order. The very existence of the impugned order was noticed only by another employee who replaced him. In this case Tri.-(Bang.) held that appellant had given sufficient reason for condonation of delay, COD allowed.
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2009 (6) TMI 425
Condonation of delay– Limitation – The Appellant submits that the delay has occurred due to the fact that there was misplacement of the Order-In-Original by the counsel. In this case Tri-(Del.)-held that the law is settled by the Hon’ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy - 2008 (228) E.L.T. 162 (S.C.) as to that for a mistake due to advocate, the assessee should not be put to hardship by way of rejection of his appeal, having not filed within time. Accordingly, it was considered opinion, that in the facts and circumstances of this case, and the explanation given by Counsel appearing, the application for the condonation of delay needs to be allowed.
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2009 (6) TMI 423
Business Auxiliary Services – Advance Loan – The Respondent was engaged by City Bank Ltd. for helping them to advance loans to parties and for recovering the same. Whether the exemption under clause (e) of Notification No. 25/2004-ST rightly granted to the Respondent?
In this case Kerala High Court-held that the matter is not considered by the Tribunal in the light of the interpretation of the notification, we set aside the order of the tribunal and remand the matter to the Tribunal for reconsideration of the issue after hearing both sides and after calling for agreement, bills for payments received, etc. from the respondent. Respondent should be given an opportunity to produce records pertaining to clause (d) which they have made in the appeal.
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2009 (6) TMI 414
Refund - Submission that appellant club does not come within the definition of “health and fitness service” and “club or association service” - appellant club is registered under the provisions of Karnataka Societies Registration Act, providing various services to its members. It is also registered with the Service “Tax Department under the category of ‘Health and Fitness Service”. It is charging, collecting and paying the service Tax for the period from October 2005 to March 2006. But they have filed a refund claim on the ground that they are registered under the Karnataka Societies Registration Act and providing service to its own members. - Employees for the purpose of rendering service, are paid remuneration from amount collected from the members. - in view of the definition ‘any establishment’ occurred in Section 65(52) of the Finance Act, any establishment running health club and fitness centre covered under section65(52) of the Finance Act - The moment an establishment is running “Health club and fitness centre” under Section 65(52) of the Finance Act, 1994 service tax is applicable as there is no explanation of the word “club” under Section 65(52) and its inclusive definition including the appellant club and other similarly placed clubs and therefore the club is registered under the Service Tax Department charging and collecting from its members and therefore refund claim is not tenable.
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2009 (6) TMI 413
Appeal filed by department – Respondent raise objection that appeal by department is not maintainable - Respondent submit that the impugned orders were received by the lower authorities on 8-7-2008 while the Committee of Commissioners sat on 14-10-2008 which is beyond the period of 3 months time limit given for filing appeal under Section 86 - Language in relevant provisions of Finance Act, 1994 different from that of in Central Excise Act, 1944 - It can be seen that the provisions of Section 35E (3) of Central Excise Act, 1944 are not incorporated in Section 86 of the Finance Act, 1994, which would indicate the mind of the law makers that they do not wish to saddle the Committee of Commissioners to act within a time frame. The Section does not mandate that the Committee should come to conclusion within the period of 3 months given for filing an appeal before the Tribunal. - Since the wordings of provisions of Section 86 are very clear, we hold that an authorization passed by the Review Committee of Commissioners to file an appeal would be enough for the Department to file an appeal before us since it is in the public interest. - The reading of provisions of Section 35B/35E/129A of the Central Excise Act/Customs Act respectively into Section 86 of the Finance Act, 1994 will not be correct. - Further, in these cases, the appeal has been filed belatedly only by four to twenty three days, we condone the delay and direct the Registry to take on record the Stay petition/appeals.
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2009 (6) TMI 412
Penalty imposed under Sections 76 and 78 - appellant were not discharging the service tax liability under ‘security agency service’ as their turn over was less than the prescribed limit. - As regards penalty imposed under Section 78, I find that the appellant had no intention to evade payment of service tax. it is undisputed fact that the appellant has discharged the service tax liability along with interest before the issue of show cause notice. In the absence of any evidence in support of the claim of suppression of facts with intent to evade payment of service tax, I am of the considered view that the penalty under Section 78 is not sustainable - As regards the penalty imposed under Section 76, we find that service tax collected from customers and appellant aware of liability, Section 73(3) on waiver of SCN not applicable - penalty is imposable under Section 76 - However I reduce the penalty imposed @ 200 per day to to Rs. 100/- per day during period of failure to make payment
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2009 (6) TMI 411
Issue involved in this case is regarding service tax liability on the applicant under the category of maintenance and repair services for the period July 2003 to March 2005 - It is his submission that they have entered into an agreement for maintenance and operation of INFINET net work of client - It is his submission that post 16-6-05, they are discharging the service tax liability on the amounts received from client - Board’s Circular No. B1/6/2005-TRU dated 27-7-2005 clarifying amendment to relevant service - In view of the above reproduced Board’s circular, prior to 16-6-05, it is difficult to construe that operation and maintenance carried out by the applicant is liable for service tax. We find that the applicant has made out a prima facie case for complete waiver of the dues - Application for wavier of the pre-deposit of the amounts involved is allowed and recovery thereof stayed
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2009 (6) TMI 410
Exemption – sale of goods and materials used in providing services - Appellants are engaged in the providing Commercial and Industrial Construction Services, service of construction of residential complex and transportation of goods by road. They have availed the benefit of Notification No. 12/2003 dated 26-2-2003 – Exemption denied on ground that credit availed in violation of notification – credit to be reversed, if availed, when goods sold - Further there are several decisions of the Tribunal that subsequent reversal of the Cenvat credit also amounts to non-availment of Cenvat credit which have been rendered in respect of Rule 6(3) of Cenvat Credit Rules. - The demand has been confirmed only on the ground that the once the benefit of Notfn. 12/2003 has been availed, no Cenvat credit can be taken and if Cenvat credit is taken in respect of other goods Notfn. 12/2003 benefit cannot be availed. It is not clear how exactly the appellants have violated the condition of the Notification. In view of the above discussion, we waive the requirement of pre-deposit under Section 35F and allow the stay petition and since the issue is required to be re considered by the lower authorities in the light of above observations, we remand the matter to Commissioner (Appeals) to decide the matter afresh.
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2009 (6) TMI 409
Availment of Cenvat credit on the Service Tax paid on the transportation services provided by the appellant to their staff to pickup and drop them from the residence to factory and vice-versa - lower authorities have denied the credit on the ground that credit is not eligible on input service, as the said service is only a facility extended to the employees of the company – Order-in-appeal relied on in impugned order to deny credit, set aside by the Divisional Bench of Tribunal in the case of M/s. Stanzen Toyotetsu India Pvt. Ltd. v. CCE - Accordingly, I find that the issue is now squarely covered in favour of the appellant. – Impugned order is set aside
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2009 (6) TMI 408
The service tax demand of Rs. 11,31,61,912/- and imposition of penalty of Rs. 11 crores has been made on the ground that the appellants failed to discharge their liability towards service tax on the services received by them from foreign service provider during the period from 12-3-03 to 31-3-07. - appellant submitted that according to the decision of the Hon’ble Mumbai High Court in case of Indian National Ship Owners’ Association [2009 - TMI - 32013 - HIGH COURT OF BOMBAY], in respect of services received from foreign service provider prior to 18- 4-06, no tax is payable by the service receiver. – Revenue submits that the services received by the appellants were actually rendered within the country since it has been found from the records that all off-shore wells for oil exploration were located within 12 nautical miles from the shore and therefore formed a part of Indian land-mark. – Appellant is a Public Sector Undertaking – above Bombay HC ruling is relevant – 6 crore already deposited by the appellant towards Service tax as sufficient for the purposes of pre-deposit under Section 86 of Finance Act, 1994 and waive the requirement of deposit of balance amount of service tax and penalties imposed upon the appellants
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2009 (6) TMI 405
Demand was confirmed on the ground that Applicant is liable to pay Service Tax on the gross amount received as provider of clearing and forwarding agent. - The contention of Applicant is that they are liable to pay Service Tax only on remuneration received and amount which is reimbursed by the principal are not to be taken into consideration for the purpose of levy of Service Tax as C & F Agent. - In the agreement there is specific Clause that the present Applicants are not entitled for any reimbursement or any monetary benefit for the work rendered under the agreement. - Prima facie we are of the view that the decisions relied upon by the Applicants are not applicable to the facts of the present case in view of the specific Clause in the agreement. Further we find that in the monthly returns the receipt of reimbursements is not reflected by the Applicant therefore prima fade we find it is not a case for total waiver of the amount of Service Tax.
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2009 (6) TMI 400
Double demand - Assistant Commissioner dropped the proceedings in respect of demand on the ground that the said amount already covered by the total demand in another show cause notice and such demand confirmed – Impugned revision order confirming demand of the same amount again - It is revealed from the impugned order of the Commissioner that the amount in question has already been included in other proceedings wherein the Tribunal upheld the demand of tax and set aside the penalty. – Amount in present case already included in demand confirmed by tribunal - the impugned order passed by the Commissioner is set aside. The order of the Assistant Commissioner of Central Excise is restored. The appeal filed by the appellant is allowed.
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2009 (6) TMI 391
Consulting services rendered by person outside country - Appellant argues that while the law was not in force for recovery of service tax from a service provider as a Consultant outside the country, this appellant is not liable to service tax for such Consultant Service rendered. The period involved is 2001-2005. The Id. DR submits that even if law is not applicable for a part of the period that shall apply to the rest of the part of the period assessed. - Following the ratio laid down by the Apex Court in the case of J. K. Synthetic Ltd. reported in 1996 (86) E.L.T. 472 (S.C.), we restore the stay application to remove hardship to the appellant, in view of merits of the case. Appreciating that the appellant has taken shelter of Larger Bench decision in the case of Hindusthan Zinc Ltd. v. CCE, Jaipur reported in [2008 - TMI - 30059 - CESTAT-LB] and appreciating ratio laid down by the High Court of Bombay in the case of Indian National Shipowners Association reported in [2009 - TMI - 32013 - HIGH COURT OF BOMBAY] we waive the requirement of pre-deposit during the pendency of appeal
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2009 (6) TMI 389
Penalty - I find that no prima facie case has been made out for unconditional waiver on the basis of bona fide belief entertained by the applicants for the reason that Notification No. 13/2003- ST granting exemption in respect of payment of service tax by commission agent is restricted to commission agent dealing with agricultural products vide Notification No. 8/2004-S.T., dated 9-7-2004 and Notification No. 6/99-ST., dated 9-4- 1999 providing for exemption when the amount was received in convertible foreign exchange and not repatriated outside India was rescinded by Notification No. 21/2003, dated 20-11-2003. The submission that no notice ought to have been issued since the Service tax was already paid is also not tenable – prima facie case not made out – stay granted partly
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2009 (6) TMI 386
GTA service – claim for exemption udner Notification No. 34/2004-S.T., dated 3-12-2004.- contention of the Applicants is that they are receiving the GTA Service and pay the Service Tax where the gross amount charged by the Service Provider is more than Rs. 1500.00. The dispute is in respect of the amounts paid to the Service Provider, which are less than Rs. 1500.00. The contention is that as per the Notification, the exemption will be given only where the gross amount charged on the consignments transported in Goods Carriage does not exceed Rs. 1500.00. Applicants also relied on the invoices issued by the Service Provider, whereby the amount charged for service was less than Rs. 1500.00. - We find that as per the invoices issued by the Service Provider, the amount charged was less than Rs. 1500.00. Therefore, prima facie, the Applicants have made out a case in their favour. – Stay is granted
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2009 (6) TMI 379
Cable operator service - case of the department is based prima facie on Register S. No. 1 seized from another person which shows the number of connections - prima fade there is no corroborative material to support the stand of the Revenue based upon the register and the register does not prima facie show that any payment in excess of Rs. 7,000/- which was confirmed by the adjudicating authority was ever paid by the assessee to that person – stay granted
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2009 (6) TMI 374
100% EOU – Non-fulfilment of export obligation - Notification No. 53/97-Cus. which governs the appellant - EOU, providing for destruction of obsolete capital goods, raw materials and finished goods, that are unfit for manufacture and become obsolete in market for actuators - We find force in the submission of the appellants that since the relevant Exim policy had already been amended prior to the issue of show cause notice, and it provides for destruction of obsolete capital goods, raw materials and finished goods and the request for destruction was made after the issue of the show cause notice, and the impugned order was passed well after the Notification itself had been amended to provide for destruction with the permission of the Assistant Commissioner, and since there is no dispute that the capital goods and raw materials had become unfit for manufacture and become obsolete in the market for actuators, the permission sought for destruction of the capital goods, raw materials and finished goods etc. by the appellants can be accepted. -, we direct that the application for permission to destroy the obsolete goods be allowed by the appropriate authority in terms of Notification No. 71/2000-Cus., dated 22-5-2000. – Demand not sustainable
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