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Service Tax - Case Laws
Showing 41 to 60 of 145 Records
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2011 (9) TMI 811
Stock broker / sub broker - stock broker service or business auxiliary service - During the period of dispute, as per the SEBI guidelines, even though a transaction of sale or purchase of a security was through a sub-broker, it was only the main broker who could issue the transaction note and could issue the bill to the client for the total amount of brokerage - with effect from April 2005 as per the new SEBI guidelines, the bills for the brokerage could be raised only by the main broker and the sub-broker would get only the commission, which was part of the gross amount of brokerage - The appellant, being a sub-broker are obviously covered by the definition of stock broker and even as sub-broker, their activity in connection with sale or purchase of securities listed on stock exchange for their clients has to be treated as service provided by stock broker in connection with sale or purchase of securities covered by Section 65(105)(a) - Larger Bench of the Tribunal in the case of Vijay Sharma & Co. v. C.C.E., Chandigarh reported in (2010 -TMI - 78818 - CESTAT, NEW DELHI) - Decided in favor of the assessee by way of remand to Commissioner for de novo decision
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2011 (9) TMI 810
Consulting engineer’s services - one time or running royalty - As per the agreement, the respondent was to depute their personnel to give technical advice and guidance in connection with manufacture of motor vehicles based on the technology transferred - The technical know-how made available by the respondent to M/s. Maruti Udyog Ltd. was to be used only for manufacture and sale of the models of cars mentioned in the agreement and not for any other products - Tribunal in the case of CCE, Chennai-III v. Video Friction Material India Pvt. Ltd. (2005 -TMI - 252 - CESTAT (CHENNAI) - Held that: the service provided by M/s. Suzuki Motor Corporation, Japan during the period of dispute could not be classified as ‘Consulting Engineers’ service and the same did not attract any service tax - Decided in favor of the assesseee
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2011 (9) TMI 809
Determination of rate of service tax - Refund of Service Tax of Rs. 2,24,624/- on the ground that such amount of tax was paid erroneously, as directed by the Superintendent of Service Tax, but under protest - circular No. 59/8/2003, dated 20-6-2003 wherein it was clarified that in view of the notification 11/2003-S.T., dated 20-6-2003, no service tax would be payable where maintenance contracts are entered into before 1-7-2003, provided the invoices are raised and paid prior to 1-7-2003 - Held that:- Section 65(105) of Finance Act, 1994, defines taxable services including service to be provided and Rule 6 of Service Tax Rules prescribes payment of tax on consideration received during the calendar month without any reference to actual providing of service we are not able to agree with the point of view canvassed by Revenue - The department did not take any objection to such payment in advance. So at a later date when the rate went up, there is no reason for the department to turn around and say that the Appellant should not have paid tax in advance - provisions in Rule 4(b)(ii) and Rule 9 of the new Point of Taxation Rules, 2011 as amended by Notification 25/2011-S.T., dated 30-3-2011 have the same effect as our conclusion - Appeals are allowed
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2011 (9) TMI 808
Payment of service tax before issuance of SCN - Whether the lower appellate authority is right in having set aside the penalties imposed on the assessee by the original authority under Sections 76 and 78 of the Finance Act, 1994 - held that:- As per Section 73(3), there shall be no show-cause notice under sub-section (1) of Section 73 in respect of the Service Tax already paid by the party. There is no bar to issuance of a show-cause notice for imposing a penalty. The Board’s clarification on the point, therefore, does not disclose the correct legal position.
Default of payment of Service Tax from 27-9-2004 to 8-3-2004 is an admitted fact. The Service Tax for that period was paid only in August 2005. Such default in payment of Service Tax would per se invite Section 76 as rightly found by the original authority. Indeed, nobody has argued before me that Section 76 is not applicable to cases involving default of payment of Service Tax. Therefore the decision of the lower appellate authority in relation to Section 76 of the Finance Act, 1994 cannot be accepted. - Penalty u/s 76 restored.
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2011 (9) TMI 793
Demand - Time limitation - The internal audit group of the Revenue Department detected that the appellants are receiving payments for making available space on their website for advertisement service - The argument by the Ld. Counsel that making available such space on the website means export of service is prima facie not convincing when customers located in India can click on the website and avail the service - In the case of providing a link to google.inc. also, the adjudicating Commissioner has come to the conclusion that making available such space attracts levy under Section 65(105)(zzzm) - Held that: the appellants have not made out a prima facie case for complete waiver of the predeposit. No arguments have also been advanced on behalf of the appellants on the ground of financial hardship - Decided against the assessee by way of direction to deposit Rs. 35 Lakhs
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2011 (9) TMI 792
Demand - Wheteher Cenvat credit under a rent-a-cab service and outdoor catering service, to respectively transport its employees to the factory and back and to provide food for them fall under the input services entitled to credit - The catering service, rent-a-cab and transportation services and the tax paid on the said services are stated as input services - Decided in favor of the assessee
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2011 (9) TMI 791
Waiver of pre-deposit and stay of recovery in respect of Service Tax of Rs. 10,39,720/- and penalties - It is submitted that, from the stage at which the blank is obtained through grinding of the worn-out die on the aforesaid machine, the process is analogous to conversion of incomplete or unfinished into complete/finished article and hence it should amount to ‘manufacture’ - It is contended that, where the activity undertaken by the appellant amounted to manufacture, it would not be exigible to Service Tax under any head whatsoever - the appellant is directed to pre-deposit an amount of Rs. 3,00,000
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2011 (9) TMI 790
Whether the respondents are entitled to avail the Cenvat credit on Service Tax paid on the outward transportation of their final product from their factory to the destination of the consignee - the Punjab and Haryana High Court in the case of Ambuja Cements Ltd. v. Union of India [2009 -TMI - 32932 - PUNJAB & HARYANA HIGH COURT] has held that the assessee is entitled to the Cenvat credit of Service Tax paid on the GTA services utilised for outward transportation of the goods - Decided in favor of the assessee
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2011 (9) TMI 789
Demand of alleged short payment of service tax amounting to Rs. 51,766/- along with interest and also for imposition of penalty under Sections 77 & 78 of the Finance Act, 1994 - Notification No. 32/04-S.T., dated 3-12-2004 - The benefit of Notification No. 32/2004-S.T. is available subject to the condition that no cenvat credit in respect of the inputs or capital goods used by the Goods Transport Agency has been availed by them - Held that: appellant would not be entitled for the benefit of exemption under Notification No. 32/2004-S.T. and hence, the duty demand has been correctly confirmed against them along with interest and as such, there is no infirmity in the Commissioner (Appeals)’s findings upholding the duty demand along with interest - Appeal is disposed of
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2011 (9) TMI 788
Penalty under Section 76 of the Finance Act, 1994 for non-payment of service tax on due dates - The material on record discloses that the assessee on being pointed out by the authorities for not paying the service tax, has paid the service tax with interest even before the issue of show cause notice - It is unfortunate that inspite of statutory provisions, the authorities have issued a show cause notice claiming penalty. So tax and interest was paid before issue of show cause notice - Appeal is dismissed
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2011 (9) TMI 787
Applications for waiver of pre-deposit - According to the applicants, they are involved in development of software, testing of the same and undertaking modification and upgradation in the course of use of the software developed by them as advised by their clients and therefore, their activities should be treated as falling under the “Information Technology Software Services” under Section 65(105)(zzzze) - Held that: the agreements are not for mere supply of manpower but for undertaking entire activities relating to development of software to the satisfaction of their clients including modification and upgradation of the said software based on difficulties being pointed out by the clients while using the software developed by the applicants - The personnel including the project Managers are on the payrolls of the applicant companies only - Decided in favor of the assessee
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2011 (9) TMI 772
Applicability of service tax on TDS u/s 195A - According to the Appellant, the amount of income tax paid by operation of law is not liable to service tax since it does not form part of the ‘gross amount charged’ by the service provider - held that:- there is no specific exclusion in the Finance Act, 1994 to exclude the income tax paid in respect of the amount paid for the services received from abroad - Merely because no such exclusion has been provided in respect of statutorily deducted amount of income tax, it cannot be said that the appellants have not made out a case for waiver of the pre-deposit in this regard - the appellants have paid an amount of Rs. 1,02,149/- and Rs. 21,749/- and the same have been appropriated, we are of the view that balance of convenience lies in waiving the requirement of pre-deposit of the balance amount during the pendency of the appeal.
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2011 (9) TMI 767
Writ petitions - renting of immovable property - Delhi High Court in its Judgment dated 18-4-2009, rendered in a bunch of cases headed by the case of Home Solution Retail India Limited v. Union of India, (2009 (4) TMI 14 - DELHI HIGH COURT) held that mere renting out of immovable property would not amount to 'service' and, therefore, would not be amenable to service tax. A S.L.P. by the Union of India against the said decision of the Delhi High Court, being S.L.P. (C) No.13850/2009, is pending in the Supreme Court - It has also been argued that retrospectivity was not permissible because this amendment to the definition of "taxable service" is not merely clarificatory but brings about a substantive liability of taxation upon the service providers - petitions are dismissed
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2011 (9) TMI 762
Waiver of pre-deposit - whether the Business Exhibition services received by the appellant in South Africa and other middle eastern countries in connection with participation in Trade Fairs organised by those countries and which had been received from service providers of those countries, is the “services received by the appellant in India” and whether the appellant are liable to pay Service tax as service recipient in terms of the provisions of Section 65(19a) read with Section 65(105)(zzo), Section 66A of the Finance Act, 1994. - held that:- the service of Business Exhibition has not been performed in India but has been performed outside India - stay granted
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2011 (9) TMI 760
Stay petition - Demand - Intellectual Property Right Services - show cause notice alleges and puts the appellant on notice for recovery of the service tax under the category of “franchisee services” for the amounts received by them as royalty from the persons who have been using their brand name - even if the appellant has discharged the service tax liability, after taking the registration under this category, the question of confirming the demand without putting the appellant on notice is incorrect and not within the provisions of the law - Decided in favor of the assessee
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2011 (9) TMI 759
Whether the service provider appellant in India getting rupee value being equivalent of commission amount of 5% in US $ shall be liable to service tax on the allegation of non-fulfillment of condition of Rule 3(1)(3) of Export Service Rules, 2005 - There is no cogent evidence on record to find that the exporter had any office in India - The service provided by the Appellant to GMC is taxable under Section 65(105)(zzb) of the Finance Act, 1994 and this service is covered by sub-rule (3) of Rule 3, as there is no dispute about the fact that it has been provided in relation to the business of the recipient, located outside India - Held that: instead of foreign exchange going out of India, there is conservation of foreign exchange in India to the extent of commission earned by the service provider appellant in view of the arrangement made by the service recipient abroad in that behalf through Indian Railways - Appeal is allowed
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2011 (9) TMI 748
Cenvat credit - rent-a-cab service, tour operator service and security - Tribunal in the case of C.C.E., Jaipur-II v. J.K. Cement Works (2009 -TMI - 33571 - CESTAT NEW DELHI) has held that rent-a-cab service used for bringing employees to the factory and dropping them back to their residence is covered by the definition of input service As regards the security, there is no dispute that the same has been availed security to the factory. Security service for security of the property of the factory is an essential activity for any manufacturer and, hence, in our view the same is covered by the term “activities related to the business,” and therefore, this service would also be covered by the definition of input service and would be eligible for Cenvat credit - Decided in favor of the assessee
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2011 (9) TMI 747
Waiver of pre-deposit - Business Exhibition Service - ld. counsel for the assessee would argue that this cannot be termed as rendering of “Business Exhibition Service” as the objective is to showcase the achievements of the government, there is no running away from the fact that stalls are also allotted to small traders and artisans in which they sell/promote/showcase/market their product or service - stay granted partly.
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2011 (9) TMI 737
Demand - Rent-a-Cab - Notification No. 9/2004-S.T., dated 9-7-2004 - In the matter of cum-duty benefit, the fact that the amount realized by the appellant is cum duty is not disputed by the Revenue - It appears likely that the supplementary bills may not have been paid by IFFCO and therefore, this fact has to be verified by the adjudicating authority and if the supplementary bills are not paid by M/s. IFFCO, the benefit of cum duty should be extended to the appellant Regarding penalty - Basically penalties under Sections 76 and 78 are for the same offence which principle has been recognized by amendment done w.e.f. 10-5-2008 by Finance Act, 2008 by adding a proviso under Section 78 - In this case the penalties imposed in the adjudication orders are based on quantum of duty worked out without following judicial principles and he could not have paid 25% of duty determined in the order-in-original - Appeal is allowed by way of remand
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2011 (9) TMI 736
Demand - Security agency - Time limitation - In reply to the notice, the appellants denied that they were a security agency as defined under Section 65(94) of the Finance Act inasmuch as they were not a commercial concern engaged in any activity for profit - In the process, they manufactured surplus bricks than the actual number required by them for their own use and inasmuch as there was danger of these bricks getting deteriorated they disposed of the same from time to time to the outside parties - Hon’ble Supreme Court decision discussed by us though rendered under the Sales Tax Act, the details and circumstances for holding the organisation as commercial concern or otherwise, throw light on the issue as to what can be held to be regular business activity so as to be liable to tax - Held that: the said declaration of law would be applicable only for the period prior to 18-4-2006 inasmuch as the definition of ‘security agency’ thereafter was amended and the security service provided by any person were made liable to service tax - This amendment in the definition also supports our view that prior to 18-4-2006 legislature intended to tax security services provided by only commercial concern and not by organisations other than commercial concerns - Decided in favor of the assessee
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