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Service Tax - Case Laws
Showing 81 to 100 of 132 Records
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2011 (7) TMI 567
Waiver of pre-deposit - Banking and other Financial Services - short payments - Show-cause notice proposing to demand applicable rate of interest on the delayed payment and proposing to impose penalty was issued to the assessees - adjudicating authority confirmed the interest demand but dropped the penal proceedings - Held that:- Commissioner (Appeals) was satisfied after considering the documents filed by the assessees of the remittance of interest by them even prior to the issue of SCN but this was not taken into account by the adjudicating authority - Since the interest amount stood paid, and such payment was accepted by the Commissioner (Appeals), he had only to set aside the demand of interest confirmed by the adjudication order - Decided in favour of assessee.
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2011 (7) TMI 566
Cenvat credit denied - Held that:- There is no dispute that M/s.Noritsu (importers) discharged duty liability on the four items in dispute and there is no further dispute that the assessees took credit only of the duty paid on the items therefore, there can be no ground for denial of credit on technical ground, namely, that the invoices raised by M/s.Noritsu to Kodak India Ltd. and Kodak India Ltd. to the respondents were not proper documents as prescribed under Rule 9 of the CENVAT Credit Rules, 2004 for taking credit - Decided in fvaour of assessee.
Penalty - As regards setting aside of penalty under Section 76 of the Finance Act, 1994, find that penalty under Section 78 has been retained by the lower appellate authority, although reduced - Since penalties under Section 76 and 78 cannot co-exist, there is no merit in the Revenues case for restoration of the penalty under Section 76 - However, as regards penalty under Section 77, it is required to be restored for non-filing of ST-3 returns by the respondents.
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2011 (7) TMI 565
Technical assistance and engineering services - Tax liability - Service receiver - The period in dispute ranged from January 2001 to December 2002 - Held that:- Since, the issue in dispute regarding levy of service tax for the period in dispute stands settled against the Revenue by the decision in Union of India Vs. Indian National Shipowners Association (2010 (12) TMI 12 - Supreme Court of India) held that liability to service tax upon a service receiver arose only if the services were provided outside India post-18.4.2006, when Section 66A was introduced in the Finance Act, 1994 - Decided in favour of assessee.
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2011 (7) TMI 563
Terminal charges collected from various Airline companies for the facilities provided in the AIR Cargo Terminal - whether would attract service tax for "storage and warehousing" provided under section 65(102) of the Finance Act, 1994 - Held that:- The department has not conducted any enquiry as to whether appellant is charging varying rates for the same cargo depending on the period of retention of the goods, whatever be the reason, in their terminal. The matter is remanded for conducting enquiry and for levying service tax, if any payable on any part of the charges collected, after issuing notice to the appellant and after hearing the appellant.
Since the appellant's is not the unique business but identical business would be carried on by other agencies in International Airports, it is for the department to collect details from the Commissioners outside Kerala and to take a uniform pattern for levy - even if the appellant is found to be liable for payment of part of the handling charges as attributable to storage and warehousing charges there is no scope for levy of penalty as no contumacious conduct can be presumed in the matter - So much so, penalty in any case will stand vacated - So far as dispute raised on the levy of tax on X-raying charges is concerned, the appellant has conceded the issue in favour of the department and the appeals on that issue will stand dismissed.
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2011 (7) TMI 561
Waiver of pre-deposit - Service Tax under the category of Business Auxiliary Services - Applicant undertake the disbursement of salary of Govt. employees & receive certain reimbursement for the same - Held that:- The reimbursement or commission received by the applicant is in relation to statutory function of the Govt. which the applicant has shown with the help of the certificates issued by the State Govt. authorities - This is not a consideration for activities which are covered under the definition of commission agent under Business Auxiliary Service - This contention of the applicant gets support from the principle of ejusdem generis - Prima facie it appears that the service would not fall under Business Auxiliary Service -Thus,the applicant has made out a case for complete waiver of pre-deposit
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2011 (7) TMI 560
Refund claim - as per assessee when works contract service was brought under the tax net effective from 01/06/2007 the service provided by them come under the category of "works contract" and not under the category of "construction of commercial complexes"- Held that:- The issue involved is the rate of service tax liable to be paid by the respondent/assessee. As per the Section 35D (3) of the Central Excise Act, 1944 made applicable to service tax, when the rate of tax or the value of service rendered is one of the issues involved, then the matter has to be heard by a Division Bench. Accordingly, the registry is directed to place this matter before the Division Bench for consideration and disposal.
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2011 (7) TMI 555
Waiver of per-deposite - whether the sale of SIM cards and recharge coupons on behalf of Bharat Sanchar Nigam Limited (BSNL) amounts to providing of taxable services or not? - Held that:- Issue is, prima facie, covered by the decisions in the case of Vallamattam Communications Vs CCE Cochin [2007 (11) TMI 272 - CESTAT BANGLORE] decided in favour of assessee stating that laying down that the assessee acting as a dealer and selling SIM cards and recharge coupons, is not providing any taxable service under the category of Business Auxiliary Service - Therefore, set aside the impugned order and remand the matter to Commissioner(Appeals) for decision on merit without insisting on any pre-deposit.
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2011 (7) TMI 554
Providing blank hoardings fixed at various sites to the advertising agencies - Invoking extented period - Held that:- Show cause notice issued in 2008 stands issued after a period of seven years from the starting of the covered period i.e. 01.10.2001, there is no provision under the act allowing the Revenue authorities to raise the demand after a period of seven years - Even if, the appellants failed to raise the issue of limitation before the adjudicating authorities or before Commissioner (Appeal) it was the legal duty of both the authorities to take the above point into consideration and not to confirm the demand for the period, for which the show cause notice stands issued after a period of seven years - set-aside the impugned order and remand the matter to original adjudicating authority.
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2011 (7) TMI 553
Refund claim - Appeal filed beyond one year - Held that:- According to Section 11B of Central Excise Act, 1944 made applicable to service tax matters, the refund claim should have been filed within one year since the same has not been filed, the rejection of the claim by the lower authorities cannot be found fault with - Decided against the assessee.
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2011 (7) TMI 552
Centralized registered accounting system - various units located in India and the service tax payment in respect of GTA service received by the Kutch unit - No registration was taken by the Kutch unit of the appellant and no centralized registration was also obtained - Appellant had committed a procedural error by not taking the registration in respect of their Kutch unit - Even before the learned Commissioner (Appeals), copies of the challans were produced but a full reconciliation statement showing that service tax has been paid in respect of their Kutch unit was not produced - since the reconciliation statement could not be produced before the lower authorities, the matter may be remanded to the original adjudicating authority before whom they would produce full reconciliation statement and satisfy that the tax has been paid by their Gurgaon unit and lapse is only procedural.
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2011 (7) TMI 551
Penalty equal to service tax amount paid late u/s 76 and penalty u/s 77 imposed - whether applicability of provisions of Section 80 arises? - Held that:- while discussing provisions of Section 76 of Finance Act, 1994, the Commissioner has taken a view that penalty under Section 76 is mandatory and the adjudicating authority has no option but to impose penalty - Therefore both the lower authorities have not considered the applicability of provisions of Section 80 of Finance Act, 1994 before coming to the conclusion that penalty equal to the service tax short paid has to be imposed - The matter is required to be remanded for fresh consideration of the issues in the light of facts and circumstances and the provisions of statute and also judicial precedents - matter remanded to the original adjudicating authority for fresh decision
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2011 (7) TMI 550
Business Exhibition Service - Held that:- The appellant were paying exhibition charges to the foreign service provider and that they were receiving services from the foreign party during March 06 to September 08. They neither got registered nor paid service tax. Hon’ble Supreme Court has confirmed the view of Notification No.36/2004-ST dated 31.12.04 which deciding the case of Hindustan Zinc Ltd. [2009 (1) TMI 266 - SUPREME COURT OF INDIA] that services received from outside India are required to pay service tax w.e.f. 01.01.05.
Appellant mentioned in column 11 of the appeal that the period of dispute is March 06 to September 08. On page No.4 in para 2 of the appeal the period mentioned is March 06 to September 06 - The learned advocate argued that correct period of dispute is only upto 31.03.06 - However, this is not found corroborated from the documents available - Therefore, remand the case for a factual verification as detailed above by the original adjudicating authority - Accordingly, appeal and stay petition are disposed of.
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2011 (7) TMI 549
Waiver of pre-deposit - Service tax paid on CHA and courier services, under the Notification No. 41/2007-ST dated 06.10.2007 - Held that:- Unable to understand the logic behind the decision of the Commissioner requiring the appellants to deposit 25% of the amount. The period involved in the impugned orders is from 10.09.2004 to 31.03.2008 which shows that the substantial portion of the period for which the show cause notices have been issued, is not covered by the Notification No. 41/2007-ST dated 06.10.2007, as amended.
As Chartered Accountant submitted that courier services were used for sending brochures and correspondence relating to sales etc. and CHA is used for exports and it is settled law that service tax is admissible in respect of these services. Thus on merits credit is admissible and observations of Commissioner regarding prima facie case being illogical, this a fit case of granting of waiver of pre-deposit.
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2011 (7) TMI 548
Cenvat credit disallowed - outdoor catering services - as per dept.contract is not very clear and the person who raised the bills can be different from the contractor - Held that:- Unable to agree with the view taken by the Commissioner (Appeals) that Contract copy produced by the assessee is not sufficient for the purpose of showing that service was rendered by a contractor to the appellant in view of the clear terms of the contract and also in view of the fact that bills raised by the contractor were cited in the show cause notice. As regards certificate issued by the Chartered Accountant was not produced before the original adjudicating authority or appellate authority and therefore, as suggested by the DR, the matter is required to be remanded to original adjudicating authority so that departmental officers can conduct study and verification of the Chartered Accountant certificate, if they so desire.
5. In view of the above discussion, matter is remanded to the original adjudicating authority for fresh decisio
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2011 (7) TMI 547
Cenvat credit - Export of goods on FOB basis - denied cenvat credit of service tax paid on shipping freight charges, port charges, bank charges, courier charges, CHA services etc. relating to exports from India - Held that:- The expenditure incurred are on services related to business activities and upto the place of removal only. Therefore, in terms of the Board's instructions, definition of input service and decision of Coca Cola India Pvt. Limited vs. CCE, Pune [2009 (8) TMI 50 - BOMBAY HIGH COURT] and ABB Limited [2011 (3) TMI 248 - KARNATAKA HIGH COURT] the services on which service tax was paid and received by the appellant have to be held as input services. Thus input service is covered by the definition, appellants are eligible for the cenvat credit - Decided in favour of assessee.
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2011 (7) TMI 545
Works contract service - service tax liabity - Held that:- There was no charging section for the levy of tax on works contract service, prior to 1.6.2007. Therefore, the entire tax demand made by the first respondent for the period, prior to 1.6.2007, cannot be sustained and as such, the petitioner is entitled to total waiver of pre-deposit of the tax, the penalty and the interest - As decided in C.S.T., Bangalore Vs. Turbotech Precision Engineering Private Limited [2010 (4) TMI 344 - KARNATAKA HIGH COURT] that works contract service is liable to tax, under the provisions of Finance Act, 1994, only with effect from 1.6.2007, and the said judgment is binding on the second respondent appellate tribunal - The writ petition is ordered accordingly.
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2011 (7) TMI 510
Rectification of mistake - whther Mistake capable of being rectified is not confined to clerical or arithmetical mistake and it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof? - Held that:- As observed by Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa [1965 (12) TMI 108 - 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 - If a decision is based solely on single consideration or only on one aspect of law, then possibly it could be said that there is a mistake apparent from the record - However if a decision is based on several considerations and different propositions of law, then merely because in the process of arriving at the final decision, reliance was placed on some Judgments or proposition it can never be said that in the decision there is a mistake apparent from the record. This is because the final decision could also have been based on the other relevant aspect of law and fact which were considered to be relevant and which could be used - 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.
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2011 (7) TMI 506
Demand - As regards the amount received for franchisee services - Franchisee services rendered by the appellants, they are liable to pay service tax and they are also not disputing their tax liability - As such, we confirm the demand of ₹ 19,78,820/- relating to the franchisee services and order that the amount already paid be adjusted against the demand confirmed by us - As regards the penalty, considering the fact that only ₹ 3.5 lakhs was paid after a delay, we reduce the penalty imposed on the appellants to ₹ 3.5 lakhs under Section 78 of the Finance Act, 1994, setting aside the balance amount. As regards Abacus training imparted to the students - Assessee submitted that such training has been held to be recreational training by the Bangalore Bench of the Tribunal in Fast Arithmetic Vs. Asst. Commr. of C.Ex & S.T.[2009 (5) TMI 70 - CESTAT, Bangalore]- As per this decision, no service tax is payable for imparting Abacus training since recreational training is covered under the Notification No. 9/2003-ST dated 20.06.2003 and Notification No. 24/2004-ST dated 10.09.2004. As regards the Abacus training imparted to the teachers - find that such training enables such teachers to either get employment in a franchisee imparting similar training or to open their own training centres and thereby get self-employed - Either way, the training received by them prepares them to get employment/self-employment and such training, therefore, would come under vocational training - Since vocational training comes under the exempted category of services, the demand confirmed in respect of Abacus training to teachers is also set aside along with the penalty imposed in respect of the same.
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2011 (7) TMI 505
CENVAT credit on the service tax paid on the inputs services used at wind mill situated at Satara and credit availed at their manufacturing unit at Raigad - The appellant has paid service tax on the input services is also not in dispute - the definition of input service read as a whole makes it clear that the said definition not only covers services, which are used directly or indirectly in or in relation to the manufacture of final product, but also includes other services, which have direct nexus or which are integrally connected with the business of manufacturing the final product. - Appeals are allowed
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2011 (7) TMI 497
Demand - Show cause notice - Limitation - Activity undertaken by the appellants is photography of the specified material and submission of their interpretation based on the photograph - Their service therefore cannot be treated to be covered under the Consulting Engineering Services Further,find that the appellants are registered with the Directorate of Industries as a SSI unit in Pune, having their office in Pune only - Thus the show-cause notice issued by Asst. Commissioner Central Excise, Sangli has been issued without having territorial jurisdiction in terms of S.Tax order no. 1/1/94 dated 29.06.1994 read with Rule 2(ii) of Central Excise Rules, 1944. The show-cause notice and the order-in-original, therefore, do not survive” - Decided in favour of assessee.
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