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Service Tax - Case Laws
Showing 1 to 20 of 132 Records
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2011 (7) TMI 1377
This appeal is connected with that of Civil Appeal No. 4004 of 2009. A copy of the order passed in the said case dated 14-9-2009 is placed.
The delay is condoned and appeal admitted - Tag with Civil Appeal No. 4004 of 2009.
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2011 (7) TMI 1334
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... ... ..... ay condoned. The Special Leave Petitions are dismissed.
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2011 (7) TMI 1279
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... ... ..... e charged by treating the same as manufacture, has not been considered anywhere in the impugned order. The same activity cannot be treated as taxable service and at the same time, as manufacture. Besides this, we find that nowhere in the order, the Commissioner has given any finding as to under which heading the goods alleged to have been manufactured by the appellant and cleared without payment of duty, are classifiable. Without deciding the classification, the duty demand cannot be confirmed. In view of this, the impugned order is not sustainable. The same is set aside. The matter is remanded to the Commissioner for de novo adjudication after hearing the appellant. Needless to say, the Commissioner must give a clear finding as to whether the appellant’s activity amounts to manufacture and if so, under which heading their goods would be classifiable. The appeals and the applications stand disposed of as above. (Operative part pronounced in the open court on 11-7-2011)
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2011 (7) TMI 1269
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... ... ..... comprehension that a public sector Corporation like the Nigam should collect the amount of service tax from its customers and should not deposit the same consecutively for three years. The Nigam was in default for a sum of ₹ 5, 66,29,510.00. For the said deficit the Nigam is also liable to pay interest and the penalty. Making payment later is no excuse for short payment made earlier. Considering the total demand including the amount of penalty and interest, direction to pay a sum of ₹ 2.00 crores cannot be said to be unreasonable. Such order certainly will not warrant interference by this Court. Learned Advocate Mr. Rastogi has also urged that the payment of ₹ 2,22,62,624/- made by the Nigam has not been considered by the Tribunal. We are unable to agree with the submission. In the impugned order, the Tribunal has categorically referred to ₹ 2,22,62,624/- paid by the Nigam on 17th April 2008. For the aforesaid reasons, petition is dismissed in limine.
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2011 (7) TMI 1131
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... ... ..... t address in the country, such a taxable service shall be treated as a recipient of service, had himself provided the service in India and accordingly, all the provisions of Section 66A is attracted. Therefore, it was held, prior to 18-4-2006, the Service Tax was not payable by the recipient in the event service provided is outside the country and he has no permanent address or place of business within the country. 3. In the instant case, the Service Tax demanded from the assessee was for the period both prior to 18-4-2006 and subsequent to 18-4-2006. In view of the aforesaid judgment, there is no liability to pay Service Tax prior to 18-4-2006. Insofar as the liability to pay Service Tax subsequent to 18-4-2006 is concerned, the liability exists, as rightly held by the Tribunal. But the said claim is made beyond the period prescribed in law and therefore, not recoverable. Therefore, we do not see any justification to entertain this appeal. Accordingly, it is dismissed.
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2011 (7) TMI 1120
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... ... ..... e charges, which is optional, are to be added to the assessable value of the vehicles. We find this issue is already settled against the revenue in the above noted decision of the Tribunal. The appeal filed by the revenue against the decision of the Tribunal is dismissed by the Hon’ble Supreme Court reported as 2009 (240) E.L.T. A82. 3. In view of the earlier decision of the Tribunal which is on the same issue and in respect of the same assessee, we find no merit in the appeal and the same is dismissed. (Pronounced & dictated in open Court)
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2011 (7) TMI 1086
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... ... ..... e. Appeal is of the year 2007. Appeal is dismissed for non-prosecution.
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2011 (7) TMI 1060
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... ... ..... the order determining the tax liability, no penalty is liable to be paid under the other provision. That is precisely what the scheme referred to above also states. In the instant case, the duty and interest is paid even before issue of show-cause notice and 25 per cent of service tax is paid as penalty within 30 days from the date of order determining penalty. Therefore, this proviso to section 78 clearly applies to this case. Therefore the assessing authority was not justified in raising the demand for the entire amount of penalty in pursuance of his order and the Tribunal was justified in setting aside the same and holding that penalty claimed under other provisions of the Act are illegal and consequently setting aside the same. In that view of the matter, we do not see any error committed by the Tribunal in passing the impugned order. Accordingly, the substantial question of law framed is answered in favour of the assessee and against the Revenue. Appeals are dismissed.
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2011 (7) TMI 1048
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... ... ..... . referred to in the work order can be held to be incidental, as has been observed in the above referred case of GVK Power and Infrastructure Limited. Admittedly, when clean water is required to be supplied, there has to be a clause as regards maintenance of the water supply plant etc. Admittedly, there is no separate contract for maintenance and repair. The essence of the contract is to supply of potable water of specified standard. As such, we agree with the learned advocate that disputed issue is covered by the Tribunal decision in the case of GVK Power and Infrastructure Limited. Accordingly, we are of the view that the appellant has been able to make out a case so as to modify our earlier order. As such, by adopting the ratio of the law declared in the case of GVK Power and Infrastructure Limited, we allow the modification application and dispense with the condition of pre-deposit of amount of ₹ 50 lakhs, as directed earlier. (Pronounced in the Court on 5-7-2011)
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2011 (7) TMI 995
Extended period of limitation – Penalty u/s 78 - Held that:- in the case of Cosmic Dye Chemical (1994 - TMI - 43929 - SUPREME COURT OF INDIA - Central Excise) held that for invoking extended period under Section 11A(1) of Central Excises Act & Salt Act, 1944, the intention to evade the duty must be proved and for this purpose, the mis-statement or suppression of facts must be wilful and mere omission to provide some information or omitting to do something which the person is required to do would not be sufficient to invoke the provisions to Section 11 A(l). it cannot be said that non-payment of service tax was wilful or with intention to evade service tax. In view of this, merely on account of not obtaining service tax registration or non-payment of tax, it cannot be concluded that the same was with intention to evade the tax. - penalty set aside.
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2011 (7) TMI 992
Construction of residential complex - section 65(91A) - proceedings on the basis of circualr - Held that:- when the adjudicating authority proceeded basing on a circular, the appellant should have been given an opportunity by the Appellate Authority to lead defence against proposal for taxation of service relating to construction of aforesaid quarters. The appellate order is cryptic and unreasoned. Therefore, we consider it proper to send the matter back to the Appellate Authority who shall have opportunity to reexamine the issue of taxability.
Waiver of penalty u/s 80 - deposit of service tax before Show Cause Notice - lot of confusion in law at the inception stage on taxability of the service provided by contractors - held that:-
Ld. adjudicating authority has rightly considered the defence plea in relation to penalty and waived the same invoking section 80 of the Act for which he did not levy penalty u/s 76, 77 & 78 of the Act on the demand confirmed by him. The appellant has substance in his argument and waiver of penalty imposed by the first appellate authority on the amount of demand confirmed in adjudication is warranted. That is ordered accordingly.
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2011 (7) TMI 991
Application for rectification of mistakes - Turnkey Projects - Composite Contracts - original order in CCE, RAIPUR Versus M/s BSBK PVT LTD (2010 -TMI - 76005 - CESTAT, NEW DELHI - LB) - writ petition against this order was dismissed by the HC in LARSEN AND TOUBRO LTD. Versus CESTAT (2010 -TMI - 76005 - CESTAT, NEW DELHI - LB) filed by another intervener - It was noticed that present two applications (interveners) calls for reconsideration of whole case for substituting earlier decision of Larger Bench in reference by a new decision, that is impracticable since order of the Larger Bench was not interfered by Hon’ble High Court due to dismissal of Writ Petition of Larsen and Toubro - An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions - Arguments on behalf of interveners show that detailed exercise is essential to appreciate the facts and circumstances of the case. Such exercise is permissible only if an appeal is decided or power of review is exercisable which is not conferred on the Tribunal.
It is, no doubt, true that a mistake capable of being rectified is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa (1965 -TMI - 100065 - SUPREME COURT OF INDIA), an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law.
When the Larger Bench decision goes back to Division Bench for consideration of appeal for decision, the material facts, evidence, surrounding circumstance, law applicable shall govern the decision of Division Bench instead of the Division Bench merely guided by opinion of Larger Bench - Application is dismissed
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2011 (7) TMI 990
Refund of service tax paid - first Appellate Authority who granted relief to the Respondent on the ground that the Respondent was a sourcing agent to the bank and such service being taxable with effect from 10-9-2004, but the Respondent was not liable to Service Tax. - Notification No. 14/2004, dated 10-9-2004 - held that:- Nowhere the Respondent has pleaded that it was collaborator to the financing bank to serve clients of the Bank concerned. - the moment service was provided by the Respondent to the funding bank service of the bank begins to serve clients of the later. - no tripartite agreement was executed among the Respondent, financing bank and the borrower, nor there is any letter of appointment in that regard. There is no role of the Respondent to discharge any obligation to the prospective borrowers of the Bank. Therefore the material fact suggests that there was no provision of service to third party by the Respondent on behalf of the financing bank. The first Appellate order proceeded under misconception of law misconstruing the notification benefit. - Decided against the assessee - refund rejected.
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2011 (7) TMI 982
Demand - GTA services - The respondent having its registered office at Anantapur Road, Bellary, have availed the service of Goods Transport Operator during the period from 16-11-1997 to 2-6-1998 without getting themselves registered with the Central Excise Department - As per amended Rules, a new Rule 7A has been inserted vide Notification No. 4/2003, dated 14-5-2003 which provides that the service receiver in case of service received by GTOs for the aforesaid period shall be required to file return in form ST-3B along with copy of TR 6 challan within a period of six months from the date of 13-5-2003 - The material on record would clearly show that there is no doubt about the date on which the amendment was made to the provisions of the Act retrospectively with effect from 11-5-2000 - Supreme Court in CCE, Meerut v. L.H. Sugar Factories Ltd., (2005 -TMI - 47389 - SUPREME COURT OF INDIA) - Held that: when the assessee is covered u/s 71-A of the Act any show cause notice can be issued u/s 73 of the Act - Appeal is dismissed
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2011 (7) TMI 981
Waiver of pre-deposit - demand is confirmed on the ground that applicant received taxable services from the foreign airlines - Held that: the applicant is the importer who filed the Bill of Entry and the component of the Airfreight is part of the assessable value and therefore, the applicant has a strong prima facie case for waiver of the tax, interest and penalties - Petition is allowed
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2011 (7) TMI 980
CENVAT credit - Overseas Commission Agents - Input services - Post removal services - Rule 2(l) of Cenvat Credit Rules, 2004 - Tribunal while affirming the order of Commissioner (Appeals) and adjudicating the issue in favour of the respondent had come to the conclusion that the activities in respect of which cenvat had been filed, were pre-removal activities and the same could not be held to be post-removal - Held that: learned counsel for the revenue was unable to justify that the claim of cenvat credit by the assessee was erroneous in any manner - Appeal is dismissed
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2011 (7) TMI 952
Demand - supply of tangible goods - As per the terms and conditions, wagons becomes part of common pool of railways and railway uses these wagons for transport of goods and the applicant do not have any effective control on those wagons therefore applicant has a strong prima facie case in their favour
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2011 (7) TMI 951
Demand - Business Auxiliary Services - Period of limitation - Consequent to introduction of Service Tax on ‘Information Technology Services’ with effect from 16-5-2008, the applicants are paying the Service Tax under the said head in addition to paying VAT / Sales Tax as applicable - in view of the Commissioner’s finding regarding absence of guilty mind for warranting imposition of penalty under Section 78, invocation of extended period of limitation is not justifiable - Decided in favor of the assessee
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2011 (7) TMI 950
Demand - port services - Revenue neutral - learned Advocate submitted that the adjudicating authority has dropped the show-cause notice on the ground that inter-terminal handling activity provided by one service provider to the other service provider is inevitable without which the service provider cannot provide port handling services to their clients/customer - Held that: prima facie the services rendered by the applicants are not the port service during the impugned period and applicants are having strong case on the ground of revenue neutrality also - Decided in favor of the assessee
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2011 (7) TMI 949
Waiver of pre-deposit - maintenance or repair” service - Held that: the ‘department itself was of the view that the activity carried out by the assessees does not amount to providing management or repair service so as to attract service tax under this heading - Decided in favor of the assessee
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