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Service Tax - Case Laws
Showing 1 to 20 of 65 Records
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2012 (4) TMI 823
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... ... ..... doned. Admitted. Tag with C.A. Nos. 2558-2559 of 2012.
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2012 (4) TMI 811
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... ... ..... by M/s. L & T by M/s. GWSSB for transporting the traded water falls within the scope of the expressions used, occupied or engaged, primarily in commerce of industry or work intended for commerce or industry as specified in the definition of Commercial or Industrial Construction Service. (C) Whether the Tribunal below committed substantial error of law in holding that all activities which are connected with welfare of citizens are excluded from liability of service tax.
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2012 (4) TMI 615
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... ... ..... as set aside by the Hon’ble High Court. I find that in the present case, the facts of the case are totally different and therefore, the ratio of the Bombay High Court’s decision is not applicable. 25. In view of the above, I am in agreement with the view expressed by the ld. Member (Technical) regarding pre-deposit in the case. Reference is answered accordingly. 26. The appeal papers are sent back to the referral Bench for passing appropriate orders. (Pronounced in Court on 19-4-2012) Sd/- (Sahab Singh) Member (Technical) FINAL ORDER 27. In view of the majority decision, the applicants are directed to make a pre-deposit of ₹ 2,15,895/- within four weeks and report compliance on 26-6-2012. On such compliance, pre-deposit of balance of dues adjudged shall stand waived and recovery thereof stayed during the pendency of the appeal. (Order pronounced on 24-4-2012) Sd/- (P.R. Chandrasekharan) Member (Technical) Sd/- (Ashok Jindal) Member (Judicial)
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2012 (4) TMI 600
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... ... ..... lary service or not in the facts of the present case, in our opinion, it would be just and proper to hear the appeal on merits without any pre-deposit but subject to the assessee executing a bond and undertaking within a period of four weeks from today to the effect that the assessee would pay the tax and penalty if confirmed by the Tribunal within a period of eight weeks from the date of communication of such order of the Tribunal, unless the said order of the Tribunal is stayed by the higher authority. 11. In the result, the impugned order dated 9th September, 2009 is quashed and set aside and the Tribunal is directed to hear the appeal filed by the assessee on merit without any pre-deposit but on executing bond and undertaking as stated hereinabove. The Tribunal shall dispose of the appeal on merits without being influenced by any of the observations made herein as they are only prima facie observations. 12. The appeal is disposed of accordingly with no order as to costs.
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2012 (4) TMI 590
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... ... ..... luded for levy of Service Tax. 3. This question is already covered by the Board Circular. The Tribunal relying on the Board Circular only has allowed the appeal. Therefore we do not see any question of law arises in this appeal. Accordingly this appeal is dismissed.
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2012 (4) TMI 577
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... ... ..... adjudication on merits. 23. Our reason for so stating is simple. 24. We have already noted herein above clause-2 of the lease deed dated May 14, 2009. It makes a clear departure from the previous lease deed dated October 09, 2006. 25. Whereas clause-5 of the previous lease deed refers to the lessor taking on the liability to pay all taxes, levies or charges imposed by any local authority or the Government, the lease deed dated May 14, 2009 clearly says that it is the lessee who takes the responsibility to pay taxes and demands imposed on the lease. 26. It is thus clear that when the lease deed dated May 14, 2009, was executed, conscious of the Finance Act 2007 having come into force, parties contracted to the contrary. 27. Being an indirect tax, it was capable of a contract between the parties on the subject as to who would ultimately bear the burden of the service tax imposed. 28. The two appeals are accordingly dismissed in limine without there being any order as to costs.
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2012 (4) TMI 568
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... ... ..... The tax amount involved in the present appeal is ₹ 2,07,085/- and at present the Board has issued instructions fixing monetary limit of ₹ 10 lacs for challenging the orders in the High Court. In view of the Board circular and without entering into the merits of the case, the present appeal is dismissed.
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2012 (4) TMI 492
Demand - Classification - erection commission and installation or works contract service - Held that: the activity undertaken by the applicant have been clarified by Board vide Circular no. B1/16/2007-TRU dated 22.5.2007 as covered under works contract services. - Decided in favor of the assessee
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2012 (4) TMI 491
Maintainability of application filed u/s 96(C) of the Finance Act, 1994 – whether subsidiary of a subsidiary of a Government company, could invoke the jurisdiction of Authority for advance ruling - questions, identical to the ones sought to be raised by the applicants, are pending before the CESTAT at the instance of the holding company – Held that:- If ruling is given in this case, it will bind only the applicants, this would mean CESTAT is free to render a ruling ignoring what is being ruled by this Authority. Such a situation should be avoided.
Also, once the existence of the conditions specified by any one of the clauses barring the jurisdiction of the Authority is established, the Authority was bound to reject the application. No necessity is felt for adjudication on first contention. We, thus, reject these applications in exercise of our discretion – Decided against the appellant.
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2012 (4) TMI 472
Failure to examine the material which gives rise to the demand making the adjudication unsustainable - both the authorities proceeded under presumptions and suppositions without applying their mind to examine the evidence which has determined liability - Held that :- it is desirable in the interest of justice to send the matter back to the adjudicating authority to examine the very source document which creates liability and incidence tax shall be determined - All legal pleadings are open to the appellant to argue before the adjudication authority in its defence leading permissible evidence
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2012 (4) TMI 471
Penalty imposed u/s 76, 77 & 78 of Finance Act 1994 - Cable operator – period 1.9.03 to 31.3.06 – services taxable w.e.f. 16.08.2002 – assessee pleaded illiteracy, bona fide belief of non-taxability of said service and financial hardship – Held that:- Service tax together with interest is confirmed as not contested by the applicant. Tribunal in the case of Krishna Satellite Cable Network v. CCE [2008 - TMI - 31294 - CESTAT NEW DELHI] has held that there could be bona fide reasons on the part of the assessee, who was cable operator and was receiving signals from multiple system operator, as regards the fact of services not being taxable. In view of aforesaid, penalties are set aside – Decided in favor of assessee.
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2012 (4) TMI 457
Liability of service recipient to pay (reimburse) service tax to the server provider - the appellant deducted the service tax from the bills of the respondent - the appellant deducted 5% tax on the bills of the respondent for the period 30.11.1997 to 6.8.1999 – respondent refused to accept the deductions as they are not "Assessee" under the Service Tax Act- the Appellants are being recipients resisted and have filed the return, thus the appellant's obligation to pay the Service Tax and not that of the Respondents – Held that:- Since clause 9.3 of the contract refers to the liabilities of the contractor in connection with discharge of his obligations, one will have to refer to clause 6 of the "Terms and Conditions for Handling of Iron and Steel Materials of RINL, VSP" which was an integral part of the contract between the petitioner and the respondent, and which was titled "Obligations of the Contractor" - the said paragraph 6 deals in great details with the work which was required to be done by the respondent as clearing and forwarding agent. It is therefore absolutely clear that the term "his obligations under this order" in clause 9.3 of the contract denoted the contractor's responsibilities under clause 6 in relation to the work which he was required to carry out as handling contractor - the respondent as the contractor had to bear the service tax under clause 9.3 as the liability in connection with the discharge of his obligations under the contract and there was no reason for the High Court to interfere in the view taken by the arbitrator.
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2012 (4) TMI 456
Separate and distinct contracts or composite contract - the activity of civil work and electrical work - Erection, Commissioning or Installation service - abatement under Notification No.19/2003-ST dated 21/8/2003 - services of erection, commissioning or installation of WTG and establishment of Wind Farm Project - civil foundation is an integral part of erection and installation of the wind mill and the control room and electrical yard etc. also form an integral part for commissioning of the wind mill without which the commissioning of wind mill or WTG is not complete. - Held that:- Once it is held that electrical installation is a part of the composite contract for erection, commissioning or installation of WTGs, the appellant's claim for the benefit of Notification No. 19/2003 ST for electrical installation cannot be accepted only on the basis that it had supplied some electrical materials for electrical installation. - Decided against the assessee.
Extended period of limitation - held that:- no basis or foundation established of bona fide belief. - nothing on record to suggest that the appellant had ever approached the Service Tax authorities to ascertain the details of their liability to pay service tax. - the department has rightly invoked the extended period of limitation.
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2012 (4) TMI 443
Demand of Service Tax on ‘works contract service’ – applicants are engaged in the activity of laying of commissioning of sewage pipeline and other civil works for Nashik Municipal Corporation - Held that: - The activity undertaken by the applicant is not for commerce and industry, therefore service tax cannot be demanded - activity undertaken by the applicant is for Nashik Municipal Corporation and as held by this Tribunal in the case of Nagarjuna Construction Co.( 2011 -TMI - 203241 - CESTAT, BANGALORE) that activities, which are concerned with welfare activity for the citizens of this country has been excluded from the liability of Service tax – in favour of assessee.
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2012 (4) TMI 431
Waiver and stay in respect of service tax and education and also equal amount of penalty - impugned demand is on construction of dams, roads, tunnels and bridges etc. done by the appellant in connection with execution of composite contracts - Held that:- An EPC contract was executed by the appellant under a single composite contract and the construction of dam, roads, tunnels etc. was vivisectable - the definition of “commercial or industrial construction service” permitted the appellant to exclude the cost of construction of dams, roads, tunnels etc.from the gross amount covered by the EPC contract for the purpose of payment of service tax – in favour of assessee.
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2012 (4) TMI 430
Valuation of taxable services - Section 67 - Recovery of amount through Debit notes - unloading, loading and transportation of goods to the plant - No Cenvat credit of tax paid on services of unloading, loading and transportation to bring the goods to their plant - Held that:- The contract by the appellant with their customers is for doing crushing and grading of iron ore and also for doing activities like unloading, loading and transportation necessary for this purpose - transportation activity was done by others and paid by the Appellant along with service tax payable for transportation of goods - that the amounts billed by them form part of the value of taxable service rendered and should have paid tax on the full value under the head applicable for crushing and grading - the services of the sub-contractors were provided to the appellants and the appellants were eligible to take Cenvat credit of tax paid on it subject to the condition that the appellants pay tax on the full value of service including the amount accounted as reimbursement for transportation – decided against the assessee.
Classification of service rendered by the transport contractors whether it is Transportation of Goods or Cargo Handling Service – Held that:- When there is composite service the service should be classified as per provisions in section 65A of Finance Act, 1994 - it cannot be considered that transportation is for the purpose of loading and unloading but loading and unloading is for transportation. Any person dealing with the situation perceives the services as one for transportation and not for loading and unloading- against Revenue.
Revenue detected short payment of tax for incidental charges received by them for the years 2005-06 and 2006-07 (Rs. 317324) - Held that:- There is a statement by the Appellants in Appeal Memorandum about a payment of Rs. 10,08,225 on 02-06-06 on this count - the matter appears to be arising out of wrong reconciliation - remit the matter to the adjudicating authority to quantify dues if any on this account and pass an order which brings out the issue clearly.
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2012 (4) TMI 429
Eligibility to the appellant for service tax credit paid on Mobile Telephone services on the basis of invoices issued by Head Office as service tax distributor – Held that:- Since the credit was taken on the basis of invoices issued by Head Office, the details of Mobile Phone/phones in respect of which service tax was paid and in whose name the mobile phone is not have been shown or seen by the authorities- as assessee has no objection to produce the documents the matter is remanded to the original adjudicating authority for verification of documents relating to utilization of mobile phone and payment of service tax of such services.
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2012 (4) TMI 427
Whether the respondents were doing any service for the prospective buyers or were doing the construction activity for themselves - Service tax liability confirmed against the Respondents but set aside by the Commissioner (Appeal) – Held that:- The period involved was prior to enactment of Finance Act, 2010 - the initial agreement between the promoters/builders/ developers and the ultimate owner is in the nature of 'agreement to sell' and the property remains under the ownership of the seller - any service provided by such seller in connection with the construction of residential complex till the execution of final sale deed would be in the nature of 'self-service' and consequently would not attract service tax - decided in the case of Commissioner of Service Tax Versus Shrinandnagar-IV Co. Op. Housing Society Ltd (2011 -TMI - 207838 - GUJARAT HIGH COURT) - against Revenue.
Claim refund of service tax paid - Commissioner (Appeal) allowed the appeals as was no unjust enrichment involved – Held that:- No basis on the Commissioner (Appeal) point that the principle of unjust enrichment was not raised in the SCN and hence it cannot be raised in the adjudication order - No clear evidence is produced to depict that the prices were agreed to with the buyers before they started paying service tax and the price remained the same without any increase on other pretexts till the delivery of the flat to the prospective buyers - that the Respondents were not given opportunity by the adjudicating authority to substantiate their claim that principle of unjust enrichment will not apply - does not propose to decide the issue without any finding by either of the lower authority – remand the matter to adjudicating authority for examination of all evidences produced by the Respondents to prove their claim
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2012 (4) TMI 426
Service Tax liability payable under the category of Man Power Recruitment & Labour Supply Services, and interest thereof and also penalties u/s 77 and 78 – Held that:- Dismissal of the appeal on the ground that there is no reply filed by the appellant before adjudicating authority and the first appellate authority cannot be accepted reason - if there is no reply filed before adjudicating authority, those submissions made before the appellate authority would be considered as submissions and not additional submissions -assessee is directed to file a reply to the Show Cause Notice within 30 days from the date of Order to the adjudicating authority - in favour of assessee.
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2012 (4) TMI 425
Claim of refund rejected on the ground that according to the Clause 2(f) of Notification No.17/2009-ST, dt.7.7.09, the claim of refund has to be filed within 1 year from the date of export of the goods – assessee submitted that in the case of Service Tax, the refund claim cannot be filed without paying the Service Tax and therefore, 1 year period is required to be counted from the date of payment of Service Tax – Held that:- It is settled law that the notifications issued by Government have to be considered as a part of statute - the Notification No.17/2009-ST is a self-contained exemption notification and provides that the exemption is provided by way of refund of Service Tax paid in respect of export - the Tribunal, being a creation of law, cannot go beyond the provisions of law and statutes and give relief – decided case of LGW Ltd Vs CST Kolkata (2010 - TMI - 77744 - CESTAT, KOLKATA)- in favour of revenue.
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