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Service Tax - Case Laws
Showing 41 to 60 of 65 Records
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2012 (4) TMI 231
Demand - In the impugned order, submission that service tax was not liable prior to 09.7.2004 has been accepted and service tax demand has been confirmed for the period from 09.7.2004 to 31.03.2005 - Held that: appellant paid service tax for the period Oct 2004 to March 2005, prima-facie appellant seems to have accepted the liability. Once the liability is admitted, the appellant should have paid the tax for the period from July to Sept 2004 also - Decided against the assessee
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2012 (4) TMI 219
Refund Claim - Appellants are engaged in the manufacture of carbon steel/mild steel spirally welded pipes and also - manufacturing polyethylene coating on the ERW steel pipes sent by customers – assessee discharged the service tax liability on polyethylene coating on the ERW steel under the category of "business auxiliary services" – assessee claimed refund on service tax on ground that service tax liability is to be discharged on consideration received for the services provided and not on value by taking into account the value of the bare pipe sent by them to the customers - revenue stated that assessee cannot argue on one hand that they would be eligible for credit in respect of pipes as inputs and on the other hand for payment of service tax value should not be taken into account and they are eligible for refund – Held that:- refund claim was rejected as the appellants have already availed Modvat credit of duty paid on the pipes - the appellants cannot seek double benefit i.e. availment of Modvat credit of duty paid on the pipes as well as not including the value of the pipes in the value of the services to be provided by them - appeal of assessee rejected.
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2012 (4) TMI 199
Refund of service tax on taxable services used for export of goods – assessee claimed refund of service tax on taxable services used for export of MT of Chrome Concentrate as per Notification 17/2009-ST dated 7.7.2009 – export made through MMTC - claim denied on ground that the appellant are not the exporter of the goods but the exporter of the said goods was M/s MMTC Ltd., BBSR – Held that:- In EXIM Policy, 2004-2009, it has been clearly laid down that the appellants cannot export the said Chrome Concentrate directly, but required to export through M/s MMTC Ltd., the canalizing agency. However, agreement between appellant & MMTC, Arbitration Clause and other facts indicate that there is a link between the goods exported and the appellant through M/s MMTC and sellers are under obligation to accept the full liability , if any, without dispute. Therefore, in view of decision in case of State of Karnataka Vs. Azad Coach Builders Pvt. Ltd (2010 - TMI - 211475 - Supreme Court Of India), we remand the matter to the Commissioner (Appeals) for fresh decision.
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2012 (4) TMI 198
Intellectual Property Services - Trade marks and brand name - held that:- If the argument of the learned Advocate that 'Hero Honda' should be considered as trade mark of the oil companies is accepted, we really fail to understand as to whether there was any need for oil companies to enter into agreement with the appellant seeking their permission to allow use of their trade name. Admittedly, the goods manufactured by the oil companies are to be used in the vehicles manufactured by the appellant companies and have a strong connection with the same. The appearance of the trade mark "Hero Honda" and "Hero Honda 4T plus" on the oil company's products definitely indicates a connection between the said companies and the appellants product.
If the oil companies would have used the said trade mark without entering into an agreement with the appellant, the same would have amounted to infringement of their right in terms of the sub-clause (4) of the Trade Mark Act. This explains the need to enter into an agreement with the appellant and for payment of royalty to them. As such, we do not agree with the learned advocate that their permission to use the said trade mark to the oil companies is not covered by the definition of Intellectual Property right and intellectual property services as appearing in the Finance Act.
While deciding against the assessee, demand beyond normal period of limitation set aside.
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2012 (4) TMI 197
Cenvat credit while availing benefit of abatement - Commercial and Industrial Construction - held that:- , in respect of a contract where the assessee has not taken input credit prior to 01.03.2006 and input/input service tax credit on or after 01.03.2006, the assessee would be rightly entitled for the benefit under the notification no. 15/2004-ST as replaced by notification no. 1/2006 dated 01.03.2006. In a case where the assessee avails CENVAT credit, then in such cases the assessee is not entitled for abatement and the service tax liability will have to be discharged on the full value of the contract. There is nothing in these notifications which prevents an assessee from not availing CENVAT credit and paying service tax on 100% of the contract value in respect of one particular contract and availing abatement and not availing CENVAT credit in respect of another contract.
In other words, there is no stipulation in the notification that the option to avail/non-avail CENVAT credit has to be exercised uniformly in respect of all the contracts executed by the assessee. It is for the assessee to choose which formulation he wants to follow in a given contract.
Whether for the purpose of discharge of service tax liability, accumulated CENVAT credit arising from some other case/contract can be utilized or not. - held that:- there is no such bar or restriction/prescribed in the notification. The notification only stipulates that in respect of a case/contract, where abatement is availed, no CENVAT credit on inputs, capital goods or input services shall be taken. So long as this condition is satisfied, abatement is permissible.
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2012 (4) TMI 196
Stay of Demand - Department is of the view that the service provided by the applicant to M/s. Tata Johnson Controls Automotive Ltd. are not received in convertible foreign exchange and therefore, are liable to service tax - It is contended on behalf of the applicant that the applicant are entitled for the benefit of circular no. 56/5/2003-ST dated 25.4.2003 - As per the said circular, service provided by the applicant to M/s. Tata Johnson Controls Automotive Ltd. get merged in the service provided by M/s. Tata Johnson Controls Automotive Ltd. in their service exported outside India - Pre-deposit waived.
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2012 (4) TMI 177
Assessee providing services under the Head, Consulting Engineering Service - SCN issued for default of payment service tax – Assessee has submitted that the Department has determined the Service Tax liability on the gross receipt as shown in their Balance Sheet for the relevant period though they had filed the detailed break-up of the receipts shown in the Balance Sheet - Revenue submitted that the invoices and other documents/evidences against which the amount had been received, by the Appellant were not placed before the learned Commissioner in support of the claim that the services rendered during the relevant period were not consulting engineer services but comprises of various other services and non-taxable services - Held that:- the entire demand has been raised on the basis of the gross receipt shown in the Balance Sheet considering the same as the gross taxable services attributable towards Consulting Engineering Services - we find that besides Consulting Engineering Services , the Appellant are registered with the Department for various other services, which have not been considered by the learned Commissioner in the impugned Order but they have not substantiated by way of adducing relevant documents/evidences before the Commissioner - the matter be remitted back to the Commissioner for re-consideration of all the issues raised earlier and raised for the first time before this Tribunal and also all the evidences/documents relevant to the case
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2012 (4) TMI 176
Condonation of delay of 37 days in filing Appeal before the Tribunal - Department itself is questioning the legality and propriety of the impugned Order and the Assessee are also in appeal - Held that:- Appeal is dismissed remanding the matter back to Adjudicating Authority for deciding the matter afresh - giving opportunity of hearing to the Appellants.
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2012 (4) TMI 156
Application for waiver of pre-deposit of service tax interest and penalty - demand is confirmed the insurance of factory building is nothing to do with the manufacture of goods - Held that:- credit in respect of service tax paid on the insurance of building is already settled in favour of the assessee by the Tribunal in Utopia India Pvt. Ltd - 2011 - TMI - 206893 - CESTAT, BANGALORE - appeal of assessee allowed.
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2012 (4) TMI 134
Denial of CENVAT credit on outdoor catering service - Held that:- the appellant cannot claim CENVAT credit on outdoor catering service -Commissioner vs. Ultratech Cement Ltd 2010 (9) TMI 19 - High Court of Bombay – in favour of Revenue.
Air travel service, rent-a-cab service, cleaning/house-keeping service - Held that:- a reasonable opportunity should be given to the appellant to establish, before the original authority, the requisite nexus between the business of manufacture of goods and the services which are claimed to be input services for the purpose of CENVAT credit.
CHA Service – Held that: - the port of export was held to be the place of removal of the goods exported. It is not deniable that CHA s service was availed by the appellant for export of their goods, which was a part of their business. The requisite nexus between the service and the business of the company stands established. Hence CENVAT credit is admissible on the CHA service to the appellant.
Penalty-related issue – Held that:- degree of offence of irregular availment of CENVAT credit will be ascertained only by the original authority pursuant to this order appellant after giving them an opportunity of being heard.
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2012 (4) TMI 133
Appellants entered into a contract for investing into the construction of BOOT Projects - permission to put up specified number of sky-signs, unipoles, kiosks, lollipops etc. at different parts of Jalandhar-Kaparthala railway over bridge and also rent certain shops under the said railway over bridge - Such places given to the parties under the contract were being used by them for putting advertisements or further allotting the same to the advertisers - service tax demand was confirmed under the category of Sale of Space and Time for advertisement services – assessee contented that there exists an agreement with the agency to spend a sum on the Jalandhar-Kapurthala railway line and in lieu of that obtained sole rights to display unipoles and sky signs with add-space - further submits that the applicants granted spaces to the agencies to put up structures and not space to advertise any products or services - he submits that the amount collected by the Municipal Corporation is on account of advertisement tax - the said parties are registered with the service tax department - Held that:- there is difference of opinion between Member (Tech) and Member (Judicial), the registry of the Tribunal is directed to place the case papers before Hon ble President for nominating a third Member for decision
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2012 (4) TMI 132
Application for stay - The appellants are engaged in the business of promoting and marketing vacations and trips conducted by foreign principals as “General Sales Agent” - An enquiry regarding the commission retained by the appellants was made and it was found to the department that the amount retained by the appellants is chargeable of Service Tax under the category of “Travel Agent Service” - Held that: no show-cause notice has been issued in this matter and there is no adjudication order against the appellants, therefore, no appeal was maintainable before the Commissioner (Appeals). Admittedly, the department has not challenged the impugned order before us - Appeal is allowed
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2012 (4) TMI 131
Application for stay - The facts of the case are that the appellant are engaged in the activity of selling of SIM cards and registered with the service tax department - It is contended on behalf of the appellant that on the same activity of selling of SIM cards they have to pay VAT to the State Government and under bona fide belief, service tax was also paid under the same challans - it is true that the appellant has paid the service tax regularly but under the State Government challans which was later transferred to the Central Government account, and that, as the appellant could not appear before the adjudicating authority, therefore, these facts were not considered by that authority - Appeal is allowed by way of remand to original adjudicating authority
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2012 (4) TMI 130
Demand - Cenvat credit on the strength of debit notes - assessee has submitted the detailed worksheet of debit notes (summary) for the relevant period along with challans evidencing payment of service tax by their two parties in question viz., M/s. Kunal Enterprises and M/s. Neha Global and the assessee has also submitted the service tax returns in the form of ST3 duly acknowledged by the C.Ex. department - Rule 4A of the Service Tax Rules, 1994 and the title of the duty paying documents, i.e. 'debit note' instead of 'invoice, bill or challan' does not make a difference more so when the service tax has been charged and paid into the Govt, exchequers account - Decided in favor of the assessee
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2012 (4) TMI 107
Availment of services of commission agent abroad – 'Business Auxillary service' - period involved 13.07.2004 to 31.03.2005 – assessee contending non-taxability of said services before 18.04.2006 - Held that:- Liability under Finance Act 1994 for availing service of foreign agents arise after 18.04.2006 following Apex Court decision in case of Indian National Shipowners Association v. Union of India (2010 - TMI - 78723 - Supreme Court of India) - Decided in favor of assessee.
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2012 (4) TMI 106
Refund - Cenvat credit unutilised - Mandate of Rule 5 of Cenvat Credit Rules, 2004, grants refund of unutilised Cenvat credit - Decided in favor of the assessee
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2012 (4) TMI 105
Waiver of pre-deposit - Classification - The issue involved in this case is regarding discharge of Service Tax liability on the appellant as a society which imparts training for the candidates and collects the fees from them as charges and not discharging the Service Tax liability - Held that: the issue involved in this case is to be considered from the factual matrix as to whether there was any suppression of facts on the part of the assessee - the issue involved in this case is to be considered from the factual matrix as to whether there was any suppression of facts on the part of the assessee - Decided in favor of the assessee by way of direction to deposit Rs.50 ,000 within a period of 4 weeks from today and report compliance on 14.02.2012
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2012 (4) TMI 104
Demand - Claim for exemption under Notification 12/2003-ST which was not claimed in adjudication proceedings - Revenue was of the view that the permission granted as per the agreement to TAFE to use the Trade Mark for tractors is Intellectual Property Right Services as defined in section 66(55a) and 66(55b) of Finance Act ,1994 and hence the appellants should have paid service tax on the consideration receive - The Counsel submits that as per this definition in the Constitution transfer of right to use, whether or not for a specified period, constitutes sale. In their case the transfer is in perpetuity and there cannot be a doubt that it constituted sale - The appellants continues to be owner of the trademark "EICHER" and they have only permitted TMTL to use the Trademark in relation to tractors and is squarely covered by the definition of "intellectual property service" - When the contract is read as a whole it is indeed a contract for transfer of the right to use the Trademark for limited purposes but on a permanent basis - the impugned contract, in its pith and substance is not a "transfer of right to use" and is more in the nature of permission to use the trademark which continues to be the property of the licensor - The Appeal is thus allowed partially by setting aside the penalty imposed. However the demand for tax and interest are confirmed.
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2012 (4) TMI 83
Whether Cenvat Credit on service tax availed in respect of GTA services, received by assessee, can be used for payment of service tax on the GTA services for outward transportation of the goods – Held that:- The issue is no more res integra. Assessee was within his rights to utilise Cenvat Credit for payment of service tax on the GTA service so received by him. See Nahar Industrial Enterprises Ltd. v. UOI (2010 - TMI - 207889 - Punjab And Haryana High Court), CCE vs Auro Spinning Mills (2011 - TMI - 211441 - Himachal Pradesh High Court) – Decided in favor of assessee.
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2012 (4) TMI 82
Demand - Classification - Business Auxiliary Service or storage and warehousing - During the pendency of the application for centralized registration, the anti-evasion wing at Bangalore initiated investigation against the branch office of the appellant at Bangalore for evasion of service tax - another show-cause dated 16.04.2007 was issued demanding service tax amounting to ₹ 3,14,81,709/- for the period from 01.10.2005 to 30.09.2006 as the same formed as in the previous notice and the case was assigned to Commissioner of Central Excise, Thane I for adjudication - Ld. Advocate for the appellant submits that the provisions relating to storage and warehousing under section 65(102) and 65(105)(zza) of the Finance Act, 1994 applies only in respect of good as defined in the Sale of Goods Act, 1930 Whether the records such as discharged cheques, vouchers, deeds, agreements, books of accounts of banks and corporate houses would come under the category of ‘goods' as per the provisions of section 2(7) of the Sale of Goods Act, 1930 or not - it is clear that to constitute goods, saleability is an essential criteria. If "saleability" was not a relevant criterion, there was no necessity to refer to the definition of goods, under the Sale of Goods Act, 1930. Sale of Goods Act governs sale and purchase of goods - the various old records such as discharged cheques, vouchers, books of accounts in respect of which the service was rendered by the appellant to his clients such as banks and corporate houses for management of the records, cannot be considered as storage and warehousing of "goods" as defined in the Finance Act, 1994 read with section 2(7) of the Sale of Goods Act, 1930 - Decided in favor of the assessee
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