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Service Tax - Case Laws
Showing 21 to 40 of 65 Records
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2012 (4) TMI 409
Denying Cenvat Credit availed in respect of goods transport services for transportation of empty container to factory for stuffing of export final products and re-transportation to the port of the export - imposing the interest and penalty on the appellant – Held that:- The appellant is liable for availment of CENVAT Credit in respect of freight charges paid by the appellant for bringing in the empty containers as held in CCE, Jaipur vs. Nitin Spinners Ltd.( 2009 - TMI - 76078 - CESTAT, NEW DELHI) stating that containers are used for packing the final products thus can be treated as inputs used by the manufacturer in or in relation to the manufacture of final products - Notification no. 18/2009-ST dated 07.07.2009 exempts the taxable service received by an exporter in respect of the transport of goods from place of removal to port of export therefore,appellant is entitled to avail credit of Service Tax in respect of these charges also – in favour of assessee
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2012 (4) TMI 407
Eligibility of the respondent for refund under Notification No.41/2007-ST, dt.06.10.2007 - Commissioner (Appeals) has allowed the refund claim in respect of Service Tax paid on Port services, Terminal Handling Charges, CHA services, GTA services, Wharfage charges – Held that:- The services such as Stevedoring, transporting the cargo after unloading from the vessel, are covered under the Port service - once the Service Tax was paid under the category of Port service, at the end of the receiver of the service the eligibility for the credit cannot be questioned - the decisions in the case of Western Agencies Pvt.Ltd. Vs CCE Chennai (2011 - TMI - 206087 - CESTAT, CHENNAI - LB), covers the services in respect of which the refunds have been claimed by the respondents - as regards CHA service and GTA service it is clear that the respondents are eligible for CENVAT Credit upto the place of removal and in the case of export on FOB basis, the place of removal has to be taken as Port – against revenue.
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2012 (4) TMI 406
Penalty u/s 76 on delayed payment of Service Tax – Held that:- No penalty can be imposed if the Service Tax liability and interest thereof stand deposited under the Section 73(3) - Show Cause Notice even for penalty cannot be issued if Service Tax liability and interest thereof has been met – decided case Krishna Security & Detective Services Vs CST (2011 - TMI - 211577 - CESTAT, AHMEDABAD) – against revenue.
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2012 (4) TMI 405
Service Tax liability under the reverse charge mechanism – Held that:- As the provisions of Section 66A of Finance Act, 1994 were brought into play w.e.f. 18.04.2006 no liability arises of payment of service tax - the issue is no more res-integra - as decided by Hon'ble Supreme Court in the case of Indian National Shipowners Association Vs UoI (2010 - TMI - 78723 - Supreme Court of India) – in favour of assessee.
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2012 (4) TMI 404
Setting aside the penalties under Section 76 & 77 by first appellate authority – Held that: - For the period October 2004 to March 2006 photocopies of the Service Tax returns filed have been produced depicting that it has been filed with Superintendent of Service Tax, Range Gandhidham - the same has been filed in time and hence no penalty can be imposed under Section 77 - For Quarter July 2006 to September 2006 Form ST-3 return produced by the assessee specifically indicating the taxable service rendered from said Quarter is ‘Nil’ - if there are no services rendered during the relevant period there cannot be any demand of Service Tax liability and consequently no delayed payment – against revenue
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2012 (4) TMI 386
Whether the appellant is liable to discharge the Service Tax liability on the commission paid to the commission agents situated abroad for procurement of sales orders under reverse charge mechanism from 09.07.04 to 15.06.05 – Held that:- As the provisions of Section 66A of Finance Act, 1994 were brought into play w.e.f. 18.04.2006 no liability arises of payment of service tax - issue is decided by Hon'ble Supreme Court in the case of Indian National Shipowners Association Vs UoI (2010 - TMI - 78723 - Supreme Court of India) – in favour of assessee.
Demand of CENVAT Credit on Service Tax on the outward transportation – Held that:- The judgment of Larger Bench of the Tribunal in the case of ABB Ltd Vs CCE (2010 - TMI - 202803 - CESTAT, BANGALORE) held that the CENVAT Credit on the Service Tax paid on outward transportation is related to the business and is covered under the definition of input services under Rule 2(l) of CENVAT Credit Rules, 2004 ,thus squarely cover the issue in their favour of assessee.
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2012 (4) TMI 381
Stay Petition for waiver of Service Tax demand,interest thereof and equivalent amount of penalty - Service Tax liability on the ground that they have been providing Business Auxiliary Service – assessee submitted produced a Chartered Accountant’s certificate giving various details before lower authorities to indicate that the entire amount as indicated in the balance sheet as an income has not come from the services rendered by them but could be loan and other income – Held that:- the adjudicating authority should have given a finding on records and the documents supplied by the assessee, the entire issue needs to be re-considered by lower authority - set aside the impugned order and remit the matter back to re-consider it afresh
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2012 (4) TMI 362
CENVAT credit for cellular telephone service - Meaning and scope of the term capital goods - (i) antenna, (ii) tower and parts thereof and (iii) green shelter (same as PFB) - held that:- if the signal transmitting antenna is installed on a tower, the signal receiving antenna could be installed on a high-rise building or flyover, and vice versa. If the tower is held to be an accessory of the antenna erected thereon, a high-rise building or a flyover with an antenna erected thereon will also have to be considered as accessory of such antenna. To our common sense, a huge immovable structure like tower cannot be termed 'accessory' of any goods. A supplementary, subordinate, additional or extra thing which is added to make something more useful, effective, convenient etc. is understood as an accessory as per the cited dictionaries. It will be absurd to hold a gigantic immovable structure to be an 'accessory' of a small equipment placed on its top. All the three terms --- 'components', 'spares' and 'accessories' -- used in sub-clause (A)(iii) of clause (a) of Rule 2 should be understood as standing for movables only. - Not eligible as Capital goods for the purpose of cenvat credit.
Alternative plea - If the towers and parts thereof are not capital goods falling under Rule 2(a)(A) of the CENVAT Credit Rules, 2004, it is argued, they are liable to be recognized as 'inputs' under Rule 2(k). - held that:- it has to be, firstly, "goods" and, secondly, "used for providing any output service". The first requirement in this case is not met by the towers which are admittedly immovable structures and ipso facto non-marketable and non-excisable.
Cenvat Credit on PFBs which were used as protective shelter for transmission equipments - office chairs - held that:- They are not components or accessories of any goods specified in that sub-clause either. Thus PFBs have no place in sub-clause (iii) also. Hence CENVAT credit cannot be claimed on PFBs as capital goods. The same conclusion can also be reached in respect of office chairs which are goods of Chapter 94. Further the chairs cannot be held to have been used for providing telecom service, in the absence of evidence.
CENVAT credit on printers which are office equipments - there is no direct nexus between this item and the output service provided by the appellant. The appellant has not established sufficient nexus between printers and their output service. - Credit denied.
Extended period of limitation - held that:- the learned Commissioner did not consider this plea at all. Therefore, in both the cases, the limitation issue requires to be remanded to the learned Commissioner for careful consideration and speaking order.
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2012 (4) TMI 327
Non-compliance of pre-deposit order - SCN was issued – assessee contented that the amounts received were for procuring orders on behalf of their principals which did not constitute taxable service - appeal before the CESTAT – direction to the assessee to make pre-deposit of ₹ 30,00,000/- for entertaining the appeal - Held that:- contracts entered into by the assessee with various parties do not appear to be simply placing orders and earning commission - the credit notes clearly disclose that the Assessee has directly dealt with the goods in lifting providing of the vehicles and delivery of the goods - the decision of the Tribunal in directing the assessee to make predeposit of ₹ 30,00,000/- out of the demand of ₹ 91,07,006/- and dismissing the appeal for non compliance of the predeposit order cannot be faulted – against assessee.
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2012 (4) TMI 326
Co-operative Society rendering rent-a-cab service under the contract agreement - SCN was issued for the period from 1/4/2000 to 30/9/2004 for demand service tax with further penalty under section 75(A), 76, 77 and 78 – Held that:- the levy of service tax was w.e.f. 1/4/2000 on rent a cab service hence assessee may be unaware with regard to this new levy of tax - there was a confusion over applicability of this levy as appellant a cooperative society rendering under the Contract for many years - there were divergent views of different benches of Tribunal, which added appellant’s confusion - if the appellant had persuaded their right of reimbursement of payment of service tax with the ONGC by way of conciliation and arbitration that fact can not negate them the defense of bona fide belief of applicability of service tax - the appellants were unable to pay the amount on the ground of dispute with the ONGC though they were aware of the levy of service tax in absence of any fraud, misrepresentation, collusion or willful mis-statement or suppression, there is no justification in levying the penalty – in favour of assessee.
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2012 (4) TMI 311
Department alleged that assessee being not registered as "Input Service Distributor" are not entitled to CENVAT credit in respect of invoices pertaining to period prior to their obtaining registration – Held that:- Under the rule 7 of CENVAT credit rules there is no bar denying the credit in respect of the invoices of the period prior to date of the registration – decided in favour of assessee as requirement of pre-deposit for hearing of the appeal is waived and recovery of the dues is stayed till disposal of the appeal.
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2012 (4) TMI 294
Assessee undertook the job of feeding of husk into the boiler in the factory of client and received consideration for the service provided – revenue treated such consideration received under the heading "Manpower Supply Service" as defined under Section 65(68) and 65(105)(k) - Commissioner (Appeals) has set aside the demand on appeal but the penalties imposed under Sections 76 and 77 under the order of the Commissioner exercising power under Section 84 of Finance Act, 1994 are subsisting – Held that:- the issue involved was whether the appellants were undertaking the job of feeding husk into boiler or whether he was supplying man power but the fact that the Commissioner (Appeals) has come to a different conclusion itself demonstrates that there was confusion in understanding the scope of the levy - a penalty on the appellants will not be justified if at all the Revenue comes in appeal against the order in appeal passed by the Commissioner (Appeals) – appeal of assessee allowed.
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2012 (4) TMI 276
Sought registration and discharged entire tax liability with interest on being made aware by the department that its activities come under 'erection commissioning installation, repair and maintenance and commercial and industrial construction'- assesee claims a waiver of penalty as being an illiterate was not aware of the law - Held that :- So far as penalty under Sections 76 and 78 of Finance Act, 1994 are concerned, we are unable to find oblique motive of the appellant to cause evasion - All these mitigating factors call for waiver of penalty to the extent that was confirmed by first appellate order - penalty under Section 77 for no registration taken duly is confirmed - appeal partly allowed.
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2012 (4) TMI 275
Whether the appellant was carrying out clearing and forwarding activities and such activity taxable - also the issue was whether reimbursement of expenses shall be forming part of assessable value - None present for the appellant - Held that:- examined the extent of test done by first Appellate order appears to have carefully examined the issue of taxability of the activity of clearing and forwarding - confirming the tax demand, we make a limited remand to first Appellate Authority to grant fresh hearing on penalty aspect as that was imposed by adjudication order.
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2012 (4) TMI 274
Commercial training or coaching - Appellant taken service tax registration in the year 2003, they did not collect service tax from the students and remit the same to the Government till 2006 - SCN issued demand for Service Tax, confirmed along with interest and a penalty u/s 76 ,77 and 78 of the Act – Held that:- some leniency in the matter of penalty may be warranted in this case considering that tax and interest were paid before adjudication order and the fact the appellant are a small service provider operating in a remote locality - simultaneous penalties under Section 76 and Section 78 cannot be imposed – as per line with the case of K.P. Pouches (P.) Ltd. v. Union of India - 2008 - TMI - 30328 - HIGH COURT OF DELHI appellant given an opportunity to pay 25% of the tax demanded as penalty within 30 days of receipt of this order. If such payment is not made within the prescribed time limit, amount equal to the full tax amount confirmed will be payable - partly allowed.
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2012 (4) TMI 255
Plea for waiver of pre-deposit of duty of Rs 58.55 lacs, interest and penalty – denial of credit of Service Tax paid on the taxable services of Manpower Recruitment or Supply Agency Service – Held that:- Taxable services availed of Yoga teacher, Poojari, Cook, Compounder, Nurse, helper etc. have no direct nexus with manufacture of final product. Credit rightly denied. Thus, assessee is directed to make pre-deposit of Rs 15 lacs within stipulated time subject to which pre-deposit of the balance amount of duty, interest and penalty shall stand waived and recovery thereof stayed during pendency of the appeal.
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2012 (4) TMI 253
Learned Counsel says that reading of para 9 of the adjudication order demonstrates that the activity carried out by the appellant was within the mining area and the goods transported within mining area cannot be called as cargo handling - To call an activity to be cargo handling service there should be an activity of movement of cargo from one place to another place without any internal movement within the mining area - Held that: movement of the excavated iron within the mining area from one place to another that operation cannot be called as cargo handling service - Appeals are disposed of
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2012 (4) TMI 252
Waiver of penalty - rent-a-cab service - short payment of Service Tax of Rs.20,500 - Proprietor, who could not explain the details since he happens to know only Gujarathi and no other language. Further, he was also found to be non-conversant with the provisions of law. - On going through the records, it was found that there was an order issued under Section 96(1) of Finance Act, 2008, under the Dispute Resolution Scheme, 2008 - Since the amount indicated in the Dispute Resolution Scheme as well as in Order-in-Original case exactly same, apparently neither the appellant nor the department had taken note of the fact that there was already an order under Dispute Resolution Scheme and therefore, the proceedings initiated in the Show-Cause Notice dt.11.09.07 - Held that: the appellant has been able to show reasonable cause under Section 80 of Finance Act - Decided in favor of the assessee
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2012 (4) TMI 251
Demand - Condonation of delay - Show Cause Notice was issued in this case by comparing the income tax return with the ST-3 return and it was found that the income shown in the income tax return was much more than the ST-3 return - Even though, the appellant explained that receipts on bank statements includes receipt of various other amounts such as interest, loan etc and therefore without proper verification that cannot be taken as income for rendering services, the original adjudicating authority proceeded to confirm the demand on the basis of bank statement - Held that: the original adjudicating authority confirmed bigger amount than what was mentioned in the Show Cause Notice also, which was rightly set aside by the Commissioner (Appeals), hence is not the subject matter of the appeal - Appeals are decided by way of remand to original adjudicating authority
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2012 (4) TMI 232
Levy of Service Tax- providing taxable services under the category ‘Transportation of goods through pipelines’ – AO found income collected for supply of pipes, measuring equipments etc. at the time of providing new gas connection thus appellant should have paid the Service Tax treating the service as 'Supply of tangible goods' – assessee contented that merely supplying, installing, maintaining the measuring equipment to facilitate determination of quantum of gas there is no service element involved in this supply – assessee stated that the ownership of equipment remains with the appellant at all time and used the equipment for their own purpose – Held that:- the customer never has a right of possession since it would never become his own property at all - the Company has the right to repossess the meter and other equipment at any time and whenever it is disconnected, the meter will become the property of the Company - therefore, the supply of goods is without transfer of right of possession - the customer cannot also obtain meter and other equipment from any other source -there is no doubt that the customer also has a use of measuring equipment - the conclusion is that the appellants have provided the service and are liable to Service Tax - appellants have not been able to make prima facie case in their favour hence should deposit 25% of the Service Tax demanded in the impugned order within 8 weeks of Order date – against assessee.
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