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Service Tax - Case Laws
Showing 21 to 40 of 112 Records
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2010 (12) TMI 782
Refund calim - The respondents were engaged in providing services of mining to their clients/principals. With introduction of separate service under the category of mining service w.e.f. 1-6-2007, the respondents were of the view that their service would fall under the new category and the service tax paid by them was not statutorily required to be paid - Accordingly, they preferred a refund claim for an amount of Rs. 1,58,11,007/- the learned Counsel for the appellant has invited our attention to Annex. 4, another order of the same authority, being Commissioner dated 30th September 2005, passed in the case of the assessee itself, for the subsequent period April 2000 to March 2002, wherein it has clearly been held, that all these services as cataloged in the said order are not chargeable to service tax. And consequently the proceedings initiated against the assessee, wherein the adjudicating authority had demanded tax, were set aside, and the proceedings were dropped. It is not shown, that this order dated 30-9-2005 has, at all been appealed against, nor has it otherwise been shown to be wrong. In that view of the matter, the reasonings given by the learned Commissioner, in the order Annex. 2, also cannot sustain
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2010 (12) TMI 781
leviability of penalty - the appellants did not deposit the amounts as soon as it was collected or at the time when they were supposed to deposit with the Government. Be that as it may, entire dues were paid on 31-3-2007 along with interest while show-cause notice was issued on 24-9-2007. This case is not the case for imposition of penalty under Section 78 as there was no suppression of facts. In view of this, we set aside equal penalty imposed under Section 78 of the Finance Act, 1994 on this amount by the Adjudicating Authority. We uphold the penalty imposed by the Adjudicating Authority on this amount under Section 76 of the Finance Act, 1994. As regards the eligibility to avail the abatement of 67% as per the Notification No. 1/2006, we find from the perusal of the documents produced before us, that the appellants had reversed the entire amount of Cenvat Credit taken on common inputs, and his plea as to applicability of provisions of Rule 6(3) of the Cenvat Credit Rules, needs to be gone into detail by the appreciation of the evidences on record, which could not be done by this Tribunal at this juncture as the Adjudicating Authority has not recorded any findings on these pleas. In view of this, we set aside the demands, interest thereon and the penalties
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2010 (12) TMI 766
Penalty under section 76 of the Finance Act, 1994 - waiver of penalty u/s 80 - non-availability of judgment in the case of Agauta Sugar & Chemicals v. CCE (2010 -TMI - 77758 - CESTAT, NEW DELHI)(LB) - debatable issue - penalty imposed under section 76 of the Finance Act, 1994 waived
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2010 (12) TMI 765
Whether the Ld. CESTAT was right in holding that the respondent is liable to pay interest only on the Cenvat credit utilized by them and not on the entire of CENVAT Credit taken - As regards the interest on Cenvat credit, in view of Hon’ble Punjab & Haryana High Court Judgment in the case of CCE, Delhi-III v. Maruti Udyog Ltd. (2006 -TMI - 1526 - HIGH COURT,PUNJAB & HARYANA) wherein the Hon’ble High Court has held that when inadmissible Cenvat credit was taken but not utilized and subsequently the assessee reversed the same, the assessee was not liable to pay any interest, no interest would be payable by the respondent on the amount of unutilized credit. - Decided in favor of assessee.
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2010 (12) TMI 764
Rejection of Refund Claim - Non compliance of provisions of Export of Services Rules, 2005 - Simultaneous proceedings - Demand raised u/s 73 by way of issuing SCN and Commissioner issued SCN to revise the order in exercise of power under Section 84 - Held that:- a new case cannot be made out against the assessee in revisionary proceedings as these revisionary proceedings were in place of an appellate proceedings, which were absent in the provisions of the Finance Act, 1994 during the relevant period. Suffice to say that subsequently, the provisions of Section 84 were deleted and appellate proceedings were introduced. Hence, reading of the current provisions and old provisions would indicate that the learned Commissioner as a revisionary authority could have only passed an order within the framework of the show cause notice which has been initially issued and adjudicated by the Adjudicating Authority and could not have made a new case. - Revisionary order passed by commissioner set aside - Decided in favor of assessee.
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2010 (12) TMI 707
Waiver of pre-deposit - Rule 6(3) of the CENVAT Credit Rules, 2004 - chartered accountant's service - Notification No. 15/2002-S.T - As regards the exemption claimed by the assessee, prima facie, the certifications done by the appellant for compliance with the US Law for Satyam Computer Services Limited may get the benefit of Notification No. 59/98-S.T. as amended by 15/2002-S.T. - Stay granted.
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2010 (12) TMI 699
waiver of pre-deposit - ineligible cenvat credit of the input services paid on 'rent-a-cab' services - Held that: 'rent-a-cab' services utilized by the appellants for transportation of food articles from centralized canteen to appellant's current factory premises needs to be gone into in detail, which can be done only at the time of final disposal of the appeal - stay granted partly.
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2010 (12) TMI 654
Business Auxiliary Service and Storage and Warehousing - CBEC Circular No. 97/7/2007-ST - There is no dispute that the impugned activities are undertaken by the Corporation with the sole object of promoting sale of liquor manufactured by various distilleries in Kerala - If the stocks are not sold out within 180 days, the Corporation will be at liberty to transfer these stocks to a separate godown/move to a separate location in the godown for effecting discount sale - Held that: - The supplies received in the warehouses of the Corporation belongs to the Corporation only. The activities undertaken by the Corporation to facilitate sale of liquor cannot be held to be services rendered to the distilleries. The Corporation took measures to expedite sale of goods belonging to it. The Corporation had rendered service to itself. These services cannot be taxed under Business Auxiliary Service of the Act. - Decided in favor of the assessee
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2010 (12) TMI 650
Waiver of pre-deposit - business auxiliary services - Rule 2(l) of Cenvat Credit Rules 2004 (CCR) - assessee had paid commission and service tax on the commission subsequent to manufacture and clearance of the excisable goods - L&T is the sole selling agent of the assessee and is prima facie engaged in promoting sales of the hydraulic excavators manufactured by the assessee - Held that: ‘sales promotion’ is specifically covered in the definition of input service - once the cost incurred by the service was added to the cost and was so assessed, it was a recognition by revenue of the services having a connection with the manufacture of the final product - Held that: Komatsu has made a strong prima facie case against the impugned demand and penalty - Decided in favour of the assessee
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2010 (12) TMI 649
Cenvat credit - Rule 15 of the Cenvat Credit Rules, 2004 - whether the service tax credit on the basis of invoices dated 6-8-2004 and 8-9-2004, issued by the service providers was available to the appellant, when the service tax in respect of these invoices had been paid by the service providers after 10-9-2004 as the complete payment had been received only after 10-9-2004 - The service tax credit in respect of service received prior to 10-9-2004 would be governed only by the transitional provisions of sub-rule (1) of Rule 11 and in terms of sub-rule (1) of Rule 11, the service tax credit in respect of services received prior to 10-9-2004 would be available only to service provider, as prior to 10-9-2004, a manufacturer was not entitled for credit of service tax paid on any input services - neither in terms of the transitional provisions of Rule 11(1) nor in terms of 3(1) of Cenvat Credit Rules, 2004, the credit of service tax would be available - since this is a case of taking wrong Cenvat credit, normal penalty under Rule 15(1) would be applicable - Decided against the assessee
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2010 (12) TMI 579
Waiver of pre-deposit - Erection & commissioning services - The appellant herein is providing erection and commissioning services to Gulbarga Development authority and rent-a-cab services to electricity supply companies like HESCOM - The appellant submits that their activity is fully covered by the 11C Notification No. 45/2010-S.T., dt. 20-7-2010, wherein the Government of India has excluded all taxable services related to transmission of electricity and distribution of electricity - The said Notification, prima facie, may cover the issue in favour of the assessee as regards the service tax liability on the ‘erection & commissioning’ charges as it is not disputed that the said services are rendered to HESCOM, which is the business of transmission and distribution of electricity - The appellant has made out a prima facie case for waiver of pre-deposit towards service tax liability involved in the ‘erection & commissioning’ services - Hence, waiver of pre-deposit of balance amounts involved, is allowed and recovery thereof stayed .
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2010 (12) TMI 553
Penalty - Quantum of penalty - Reduce the penalty under Section 76 - Reasonable cause for delay in payment - It is seen that the assessee had raised invoices and had shown 8% towards service tax during the relevant period of four days - The differential amount and interest was paid - The original adjudicating authority had imposed a penalty of ₹ 20,000/-which was reduced to ₹ 10,000/- by the Commissioner (Appeals) - The provisions of Section 76 read with Section 80, would mean that the penalty cannot be reduced but can only be waived totally - The question of enhancement does not arise - Hence, it is not in a position to hold that penalty is to be reduced to zero in the absence of the appeal by the assessee - The Appellate Court can reconsider the matter and find out whether the discretion used by the authority was proper or not - Find that assessee has shown reasonable cause and therefore, there is no need for enhancement of penalty - Accordingly, the appeal filed by the Revenue is rejected.
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2010 (12) TMI 552
Waiver of pre deposit - whether the appellant is entitled to any concession on interest and penalty when Modvat credit was allowed against part of the demand resulting in balance demand along with interest and penalty - The appellant was entitled to Cenvat credit as has been granted by the learned Commissioner (Appeals), against which there is no appeal by the revenue - It would, therefore, be proper to waive the penalties imposed on the appellant. The appellant accordingly succeeds on the penalty aspect as aforesaid and partially succeeds on interest aspect to the extent indicated herein before - Appeal is disposed of
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2010 (12) TMI 551
Section under 85(4) - When the principles of natural justice were not followed by the original authority, the Commissioner (Appeals) had two choices before him : (i) either to set aside the order of the original authority on the ground of violation of principles of natural justice and allow the appeal of the respondents herein; or (ii) to remand the matter for fresh decision. Held that: in the case of another Bench of the Tribunal in the case of Commissioner of Service Tax, Delhi v. World Vision [2009 (11) TMI 452 - CESTAT, NEW DELHI] has taken a similar view holding that in service tax matters, Commissioner (Appeals) has the power of remand under Section 85 of the Finance Act, 1994 - Hence, the appeal filed by the Revenue is without any basis and the same is rejected - The cross objection filed by the Respondents stands disposed of.
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2010 (12) TMI 542
Mode of payment - services of GTA - The demand is raised on the ground that the appellants should have paid the service tax only through Cash/PLA and through Cenvat credit account - The appellants are permitted to maintain a common Cenvat account into which credit of duty paid on inputs and service tax paid on input services are allowed to be taken as credit - The purpose for which use of the Cenvat account has been permitted has been listed - There is no restriction placed for utilisation of Cenvat credit by the manufacturing unit towards payment of service tax as a service provider or deemed service provider - Therefore, there is no irregularity on the part of the appellants using Cenvat credit account - The order of the Commissioner (Appeals) is set aside and appeal is allowed with consequential relief as per law.
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2010 (12) TMI 518
Demand of service tax - As per the “Notification 25/2004-S.T. dated 10th September, 2004, shows that the amount received by the service provider prior to 10th September, 2004 in relation to the service provided to a customer by a Commissioning and Installation Agency in relation to erection is exempt from payment of service tax - Held that: total waiver of the amount demanded under the impugned order - Hence the application is allowed, the impugned order is stayed without insisting for any pre-deposit.
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2010 (12) TMI 493
Waiver of pre-deposit - The appellant submits that Service tax was not collected by the appellant and due to his financial unsoundness tax liability could not be discharged - Therefore if suitable instalments are granted and a reasonable amount is ordered to be paid, the Appellant shall come forward to make deposit of the demand to that extent - Held that: direct the appellant to make deposit of Rs. 6.00 lakhs (Rupees Six lakhs) in equal monthly instalments of Rs. 50,000/- each - Failure to make deposit of any of the instalment the Revenue shall be at liberty to realise its entire dues in accordance with law - After the last instalment is paid showing deposit of aggregate amount of Rs. 6.00 lakhs, the appellant shall be at liberty to mention for hearing of its appeal - Compliance is fixed for 30th December, 2011 . Considering the financial hardship of the appellant,direct the appellant to mention for fixing early hearing date on the date of compliance itself.
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2010 (12) TMI 492
Interest - The assessee paid service tax by way of debit in CENVAT credit amount and later on made good the error by making payment in cash - held that this is not a case of failure to make payment but only an adoption of an incorrect method for payment, and therefore, the provisions of Section 75 are not attracted against the assessees - Hence, the impugned order setting aside the liability of assessees to pay interest and reject the appeal.
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2010 (12) TMI 490
Waiver of pre-deposit - Cenvat credit - Documents for availing cenvat credit - The question arises as to whether during the period from 10-9-04 to 6-6-05 Cenvat credit could be taken on the basis of invoice, bill or challan issued by an Input Service Distributor. From a reading of Rule 9(1)(g) readwith Rule 2(m) of CCR, 2004 and Rule 4 and Rule 4A(2) of the Service Tax Rules, 1994, are of the prima facie view that during this period, there was no provision that an Input Service Distributor before issuing an invoice, bill or challan had to obtain registration or that without such registration he cannot issue such invoices - Therefore, of prima facie view that Cenvat credit during the period of dispute cannot be denied to the appellant just because their Delhi office had not obtained service tax registration. Back dating of invoices - the invoices by Delhi office as ISD had been issued much later in back date - in view of allegation of back dating of the invoices issued by Head Office as ISD, which appears to have some substance, this is not a case for total waiver.
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2010 (12) TMI 488
Cenvat credit of service tax - Input service - As per Rule 3(1) of the CENVAT Credit Rules, 2004 credit of service tax paid on any input service received by the manufacturer of final product can be taken. In the present case, the input service has been received by the job worker and not by the manufacturer of the final product - the provisions of the rules does not allow credit of Service tax paid on security services received by the job worker to be taken by the respondent-manufacturer - Hence, the impugned order passed by the lower appellate authority cannot be sustained. Demand and interest - The Department had gone in appeal to the lower appellate authority against non-imposition of penalty - There was no appeal by the respondent-assessee before the lower appellate authority - Since, department wrongly set aside the demand and interest - Accordingly, the impugned order-in-appeal is set aside and the matter is remanded the lower appellate authority to consider the department’s appeal afresh.
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