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Service Tax - Case Laws
Showing 41 to 60 of 112 Records
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2010 (12) TMI 472 - CESTAT, NEW DELHI
Waiver of pre-deposit - the appellant is recording its receipts on cash basis, Revenue cannot press for accountal under merchantile basis - The pressure shall disturb the entire accounting position and there may be double taxation in future - Held that: there is no statutory provision under Finance Act 1994 to follow a specific method of accounting like Income-tax under Section 145 of the Income-Tax Act, 1961 - Once an assessee opts to account for on cash basis, there is no mandate under law to press the assessee to change his method of accounting - Hence, waiver of pre-deposit of the balance demand during pendency of the appeal.
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2010 (12) TMI 471 - CESTAT, NEW DELHI
Waiver of pre-deposit - Valuation - Reimbursement of the expenses - The appellant provide the services as C&F Agents to their clients and in addition to commission being received from their clients, certain expenses incurred by them in providing the services are also reimbursed by them by the clients - whether the service tax is to be charged on the gross amount received by the appellant including the reimbursement of the expenses or is chargeable only on the amount received from the clients as commission - Prima facie, find that the appellant is not acting as “pure agent” - Prima facie view that the assessable value of the taxable service in this case would include the expenses incurred by the appellant while providing the service which were reimbursed by their client - The appellant have not been able to establish prima facie case -Hence, the stay petition is dismissed - Thus, the appellant are directed to deposit the entire amount.
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2010 (12) TMI 453 - CESTAT, BANGALORE
Demand - Classification - Storage and Warehousing Services or Cargo Handling Services - Held that: assessee collects various charges from importers/exporters including passengers for keeping the cargo in transit safely pending export or customs clearance for home consumption - The entry Cargo Handling Service was clarified by CBEC as not covering export cargo and passenger baggage - Considering the nature of the activities involved, the Commissioner could not have found with certainty that the assessee had deliberately mis-classified the activities undertaken by it under the head ‘Cargo Handling Services’ instead of ‘Storage and Warehousing Services The Board is of the view that the activities performed by the sovereign/public authorities under the provision of law are in the nature of statutory obligations which are to be fulfilled in accordance with law - an activity performed by a sovereign/public authority under the provisions of law does not constitute provision of taxable service to a person and, therefore, no service tax is leviable on such activities - Appeal is allowed by way of remand
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2010 (12) TMI 429 - CESTAT, CHENNAI
Waiver of predeposit - In terms of Notification No. 12/2003-S.T., dated 20-6-2003, the value of taxable service which is equal to the value of goods and materials sold by the service provider to the recipient of service, which can be excluded while the assessee has deducted higher amount by including fabrication charges and transport charges - No prima facie case for total waiver of predeposit - Direct predeposit of Rs. 2,00,000/- (Rupees two lakhs only) within a period of four weeks - Hence, predeposit of the balance tax, interest and penalty shall stand waived.
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2010 (12) TMI 428 - CESTAT, NEW DELHI
Waiver of pre-deposit - Transportation of ready mix concrete other than water through pipeline - Learned D.R. submits that they are aggrieved by the appellate order which allowed relief to the respondent holding that there was transportation of ready mix concrete other than water through pipeline -The appellate authority held that concrete mix was supplied through a special purpose vehicle for delivery at the customers end - Learned D.R. has no evidence to show that the service provided by the respondent falls within the meaning of taxable entry under Section 65(105)(zzz) of the Finance Act, 1994 - the matter is fixed for stay hearing - Therefore, dispensing with the pre-deposit, both stay application as well as appeal are dismissed.
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2010 (12) TMI 417 - CESTAT, NEW DELHI
Penalty - Tax liability - "Banking and other Financial Services" as "Merchant Banking Services" - Postponement of liability - Incidence of levy under aforesaid category fastened liability on the appellant from 19-4-2006 by Notification No. 10/2006-ST dated 19-4-2006 - The liability that has been incurred by the appellant is for the period soon after two months of the Implementation of the law - it is a case where there is no mala fides of the appellant apparent from the face of adjudication order - On 8-9-2007 the appellant paid the tax due through TR-6 challan which is evident from page 22 of the appeal folder containing show cause notice - Sections 76 and 78 being subject to benediction of section 80 of Finance Act, 1994, in absence of mala fide of the appellant levy of penalty is unwarranted - Thus, the appellant succeeds and its appeal is allowed, setting aside the impugned order confirming tax liability.
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2010 (12) TMI 412 - CESTAT, BANGALORE
Waiver of pre-deposit - In the case of Indian Hume Pipe Co. Ltd. v. CCE (2008 -TMI - 30780 - CESTAT, CHENNAI) the Tribunal) had held that a water supply project was an infrastructure facility and a civil amenity the state provided to the public and was not an activity of industry held that GWSSB was not engaged in any industry - Considered the view taken in some cases that for the purpose of Industrial Disputes Act, 1947, GWSSB was an industry - In the circumstances pending consideration of contentious arguments raised by the revenue, order complete waiver of the dues adjudged against the appellant consistent with our earlier stay order - The stay petition is allowed.
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2010 (12) TMI 410 - CESTAT, NEW DELHI
Valuation - Reimbursement of expenditure - charges for infrastructure i.e. godown rent, depreciation, pest control, fire extinguisher, internet, house keeping and staff welfare, telephone expenses, courier expenses, tax, electricity including generator expenses, samples and promotion materials handling charges, commission paid to bank, renewal of licences, stationery remuneration paid to staff and loading and unloading expenses were subject matter of consideration - The basic principle that service tax being destination based consumption tax, till the service reaches its destination, that contributes to the proposition that all expenses incurred till that point and time become essential consideration of cost of service - Agreement of parties in respect of modality of payment of valuable consideration towards service provided does not matter for Revenue - Legislature accordingly intend that the gross value of the service shall be the measure of value for taxation whether paid as consideration directly or by reimbursement of expenses relating to providing of taxable service - There is no specific deduction allowed under statutory provisions to diminish the value of taxable consideration of taxable service, in absence of such provision in law, learned Commissioner (Appeals) committed error of law to exclude the expenses reimbursed by the service recipient to service provider from the purview of taxation.
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2010 (12) TMI 405 - CESTAT, NEW DELHI
Demands of service tax - Assessee pleaded that the allegation against them that they had not paid the service tax by due date or had short paid the service tax is incorrect, as there was no short payment and the service tax had been paid by the due date, that in spite of service tax having been paid by them by the due date, show cause notices were issued alleging short payment/non-payment and service tax demand confirmed against them - the Commissioner (Appeals) on one hand has set aside the service tax demands accepting the respondent's plea that service tax which have been demanded had already been paid by them by the due date, but on the other hand, he has directed the adjudicating authority to verify the original duty paying documents while before setting aside the service tax demands the necessary verification about genuineness of the tax paying documents should have been done. The orders of setting aside the documents without verification and directing original adjudicating authority to do the verification are not correct and have to be set aside. Cenvat credit - section 85 of the Finance Act, 1994 read with section 35A of the Central Excise Act, 1944 - The Commissioner (Appeals)has directed the original adjudicating authority to verify the relevant documents and come to a reasoned conclusion regarding the admissibility or otherwise on the cenvat credit., the Hon'ble Supreme Court in the case of MIL India Ltd. (supra) and Hon'ble Punjab & Haryana in the case of CCE v. B.C. Kataria (2007 -TMI - 3281 - HIGH COURT OF PUNJAB & HARYANA) has held that after amendment of section 35A of the Central Excise Act, 1994 with effect from 11-5-2001, the Commissioner (Appeals) has no powers to remand any matter - Therefore, the Commissioner (Appeals) does not have the powers to remand the matter and for deciding an appeal filed before him, if necessary, he has to call for the records and give his findings.
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2010 (12) TMI 394 - CESTAT, NEW DELHI
Cenvat Credit - Demand - Penalty - In view of no element of mens rea present in the present case and presence of the elements for penalty being sine qua non, this appellant should not suffer penalty as consequence under Section 76 and 78 of the Finance Act 1994 for no factual finding about contumacious conduct of the appellant to cause loss of Revenue - It is needless to mention that for the period of default, interest is to be payable by the appellant on the demand arose, consequent upon giving effect to the first appellate order - Both stay and appeal are disposed
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2010 (12) TMI 388 - CALCUTTA HIGH COURT
Refund - the application for refund made by the assessee can be said to be time barred - there is no scope for passing any interim order - Let Notice-of-Appeal shall be served upon the respondents by the Department concerned on usual course - Accordingly the application is disposed of
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2010 (12) TMI 379 - CESTAT, MUMBAI
Refund - Rule 2(l) of the CENVAT Credit Rules, 2004 - Business Auxiliary Services - Hon’ble High Court of Bombay in the case of Ultratech Cement (2010 -TMI - 78203 - BOMBAY HIGH COURT) - Held that: the assessee is not entitled for input service credit for the charges recovered by them against the subsidised food from their employees - Therefore, the appeal of the Revenue is partly allowed by way of remand to the original adjudicating authority to quantify the amount recovered by the assessee from their employees for providing subsidised food after giving reasonable opportunity of hearing to the assessee to produce the documents for quantification - In the facts and circumstances of these cases and as no penalty is warranted as the issue involved is interpretation of statute - Appeals are disposed of
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2010 (12) TMI 378 - CESTAT, NEW DELHI
Cenvat credit - Input services - The appellants are engaged in the manufacture of electronic and electrical goods such as computer monitor, air conditioner, refrigerator and colour television sets - The appellants have utilised cafeteria/catering services by entering into contract with Outdoor Catering Services for the purpose of providing food and beverages to their workers. The appellants have more than 250 workers on their pay roll and as per Section 46 of the Factories Act, 1948, they are required to provide and maintain a canteen for the use of the workers - This is a mandatory requirement and failure to maintain such canteen facility attracts penal action - In the present case, it is not merely a case of inclusion of value of the services for the purpose of costing of the final products but it is to be noted that the services are required to be utilised mandatorily and the failure of which attracts penal action. Held that: the outdoor catering services utilised by the appellants have to be treated as ‘input services’ - Therefore, the appellants are eligible for the credit.
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2010 (12) TMI 369 - CESTAT, NEW DELHI
Waiver of pre-deposit - Service recipient - The appellant is a manufacturer of home furnishing products chargeable to Central Excise Duty - The appellant received GTA service for transportation of the inputs to their factory and transportation of their finished products to their customers and paid service tax in respect of the same - However, for payment of service tax they availed the exemption under Notification No. 32/04-ST dated 3-12-2004 and successor Notification No. 1/06-ST dated 1-3-2006. When the exemption under Notification No. 32/04-ST and its successor Notification No. 1/06-ST is subject to condition that the Cenvat credit on the inputs or capital goods used for providing the GTA service has not been availed by the GTA or benefit of exemption Notification No. 12/03-ST dated 20-6-2003 has not been availed by the GTA and the Notification does not prescribe any format in which the certificate to this effect is to be provided,the certificates given by the GTAs on their letter heads in this regard are sufficient and the Department cannot insist that such certificates should on each consignment note - Decided in favour of assessee.
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2010 (12) TMI 355 - CESTAT, BANGALORE
Waiver of pre-deposit - Rule 6(3)(c) of Cenvat Credit Rules, 2004 - Input service distributor - assessee has not maintained separate records at their Corporate Office for the input services commonly used in the taxable output services provided from the branches or in the exempted services provided from the Corporate Office - There is no allegation or finding that the assessee provided taxable and exempted services - the basis is that the credit transferred by the Corporate Office was not admissible either as they did not qualify as input service or as the Corporate office had not fulfilled the conditions of Rule 6(3)(c) of CCR - Held that the Corporate Office registered with the Service Tax department cannot be held to have rendered taxable and exempted services for the reason that it engaged in trading activity. Therefore, these demands are, prima facie, not sustainable Rule 7 of CCR - prima facie, Adjudicating Authority has no jurisdiction to raise the question of admissibility or otherwise of the impugned credit allotted by the ISD and availed by the assessee - Decided in the favour of the assessee
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2010 (12) TMI 352 - CESTAT, MUMBAI
Rule 3(5) of the Cenvat Credit Rules, 2004 - Inputs were cleared ‘as such’ - The respondents availed Cenvat Credit on inputs as well as on goods transportation agency service as input service credit which was availed by them at the time of procuring the inputs - Later on these inputs were cleared by the respondents ‘as such’ after reversing the CENVAT credit availed by them on these input but they did not reverse the credit taken by them on the input service of goods transport agency for procuring the impugned inputs - Held that: - when the credit-availed inputs or capital goods are removed from the factory of the assessee, sub-rule (5) of Rule 3 of the Cenvat Credit Rules, 2004 provides for recovery of equal amount of credit. There is no such provision to reverse credit of service tax availed in relation to such inputs or capital goods when removed from the factory. - Decided in favor of assessee.
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2010 (12) TMI 346 - CESTAT, AHMEDABAD
Demand - No one has appeared on behalf of the appellant - It was submitted that penalty under Section 78 may be reduced to 25% which has already been paid by them and penalty imposed under Section 76 of the Finance Act, 1994 may be set aside - The reason given by the appellant is that the party plot is not used on a regular basis and the order in original was received by the watchman and it was handed over to them late and they have paid the amount within thirty days of the actual receipt not acceptable - Therefore the request for reduction of penalty to the extent of 25% of the service tax has to be rejected Penalty u/s 76 - if offences are committed in course of same transaction or arise out of same act, penalty imposable for ingredients of both the offences - No reasonable cause as required under Section 80 of Finance Act, 1994 has been shown - appeal has no merit and accordingly the same is rejected
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2010 (12) TMI 342 - CESTAT, NEW DELHI
Stay order - Waiver of interest and penalties - Cenvat credit to the service recipient - Circular No. 122/3/2010-S.T. dated 30-4-2010, clarifies that mere fact that the service recipient has cleared the duties of the service provider partially, that itself would not be justification to deny the benefit of Cenvat credit to the service recipient in relation to such service tax paid on invoices issued by the service provider and when in fact entire duty has already been discharged by the service provider - Hence, prima facie case has been made for stay of the order - Accordingly, stay application is allowed and the amount demanded under the impugned order is waived till disposal of the appeal.
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2010 (12) TMI 331 - CESTAT, MUMBAI
Refund claim - The respondents are registered under Commercial and Industrial Building & Civil Structures services - They received advance to execute the work of construction from their client and accordingly deposited the department as advance received for service tax - Later on, the said contracts were cancelled by their client, accordingly the advance received by the respondents were returned to their clients - The respondents sought refund of the amount paid as service tax by them against the said advance for which no service has been rendered to their client As per the case of KVR ,the Hon’ble High Court of Karnataka has held that as the petitioner is not held liable to pay service tax in respect of civil structures constructed and put to use, the amount paid by the assessee to the Revenue be treated as deposit at the hands of the Government and the provisions of Section 11B have no bearing, the limitation of one year are not applicable - Hence, the same treated as deposited for that the respondent is entitled for the refund claim without invoking the provisions of Section 11B of the Central Excise Act, 1944 - Accordingly, the respondents is entitled for the refund claim.
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2010 (12) TMI 328 - CESTAT, NEW DELHI
Demand - In the present case, the appellants undisputedly have taken the credit based on invoices from the service provider and without making payment of service charges and service tax - There is no allegation or finding that the provider of service from whom the appellants have received the services are not genuine or that they are not registered with the excise department - During the interim period i.e. between the date of taking credit and the date of payment to the service provider, the appellants have enjoyed the monetary benefit and therefore the demand of interest for this period as held by the original authority deserves to be upheld - Denial of credit set aside while confirming Interest and penlty.
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