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Service Tax - Case Laws
Showing 121 to 134 of 134 Records
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2012 (6) TMI 92
Refund claims rejected is that the services were not rendered from a registered premise - held that:- the benefit has been denied on the ground that the services were not rendered from a registered firm and nowhere it has been stated that the service was not rendered from the premises at all. - the ld. Commissioner could not have travelled beyond the show-cause notice in the revision proceedings. This aspect also will have to be considered in detail. In these circumstances, on this issue also, appellant has been able to make out a prima facie case in their favour.
Input services - repair and maintenance of capital goods - held that:- services used in repair and maintenance of capital goods can be said to have direct nexus with the output service. - appellant has made out a prima facie case.
When the assessee having centralized billing and accounting system, non-registration of branch office would not come in the way of availment of Cenvat credit. Since no contrary decision has been placed before me, on this ground also appellant has made out a prima facie case.
Joint ownership of property - service tax on renting - Payment of service tax by the appellant after dividing the rent on its own portion - prima facie case in favor of appellant - stay granted.
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2012 (6) TMI 69
Whether the penalty imposable under the Finance Act, 1994 is automatic Held that:- imposition of penalty under the Act is not automatic. The ingredients mentioned in the Section should exist. In respect of Sections 76, 77 and 78 of the Act, not only the ingredients of those Sections should exist, but also there should be absence of reasonable cause for the said failure.
Whether Sections 76 and 78 of the Act are mutually exclusive Held that:- Sections 76 and 78 are mutually exclusive. If penalty is payable under Section 78, Section 76 is not attracted. Therefore, no penalty can be imposed for the same failure under both the provisions.
Even if the ingredients stipulated in Sections 76 and 78 of the Act are established, if "reasonable cause" is shown for the failure, whether the authorities have power to impose penalties given the explicit discretion in Section 80 of the Act Held that:- Even if the ingredients stipulated in Sections 76 and 78 of the Act are established, if the assessee shows reasonable cause for such failure, then the authority has no power to impose penalty in view of Section 80 of the Act.
Whether the revisional authority has jurisdiction to impose penalty for the first time when it has not been imposed by the adjudicating or assessing authority by invoking Section 80 Held that:- When the assessing authority, in its discretion has held that no penalty is leviable, by virtue of Section 80 of the Act, the revisional authority cannot invoke its jurisdiction and impose penalty for the first time.
Power of revisional authority - assessing/adjudicating authority was satisfied with the "reasonable cause" shown by the assessees but still penalty was imposed, not on the ground that there was no reasonable cause or that the reasons were not acceptable to him, but penalty was imposed in substance to educate the taxpayer about his moral responsibility - assessee has not challenged the said orders but has paid the same Held that:- revisional authority had no jurisdiction to interfere with the said orders as the authority held that there was sufficient cause for non-payment of duty. Therefore, the order passed by the revisionary authority is erroneous and calls for interference. Hence, no case for interference with the impugned order is made out. Hence, these appeals are dismissed
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2012 (6) TMI 68
Pre-deposit - D.R. submits that when the taxable entry made clear to bring management, maintenance or repair of any property immovable or not to the fold of Section 65(105)(zzg) read with Section 65(64) Finance Act, 1994, service provided by the appellant is taxable. Held that:- document exhibits that it was obligation of lessee to pay the annual consideration to the appellant to avail certain services under that deed and appellant had duty to the lessees under law in terms of contractual obligation, Maintenance of the industrial area was obligation of the Appellant. Such prima facie observations bring the appellant to the fold of taxable entry read with aiding definition as suggested by Revenue aforesaid. appellant directed to make pre-deposit
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2012 (6) TMI 67
Waiver of pre-deposit Whether assessee CPT was liable to pay Service Tax under 'Port Services' on royalty, upfront charges, rent on jetties and estate rentals received Royalty - Royalty charges were paid by IGTPL to develop and operate RGCT within the port premises Held that:- This amount was paid by IGTPL to CPT for allowing it to develop and operate Rajiv Gandhi Container Terminal at the port premises. royalty received by the appellant is not a consideration for any port services rendered by CPT. If at all IGTPL pays service tax as demanded, the same will be available to it as cenvat credit, and can be used to meet its liability on services rendered by it. demand not liable to be sustained Regarding upfront charges - ownership/lease hold rights of the equipment of the appellant shall stand transferred to the licensee from the date of receipt of first instalment of the upfront payment. consideration received was accounted in the financial records of CPT as sundry debtors and the value of the assets written off at the written down value of ₹ 7.6 crores. Even if the equipment is held to have been leased to IGTPL and not sold, no tax can be levied on the consideration as it is not received towards port services rendered by CPT Regarding rental amounts collected for renting out various jetties within the port area Held that:- assessee did not put up jetties but collected charges for licenses granted to other persons to put up structures on the waters coming within the administrative jurisdiction of CPT. These charges are collected in accordance with Cochin Port (licensing of jetties, slipways and boat pen) Regulations, 1968. these charges for licenses as not classifiable under 'port services' or taxable under that head Regarding estate rentals - these are recovered for leasing out immovable property of IGTPL for permitting it the use of the site belonging to CPT. Renting of immovable property services under which the impugned activity will be appropriately classified was introduced only on 1.6.2007 post the period of dispute. Therefore, the impugned demand under 'Port Services' is liable to be set aside Demand and penalty set aside and appeal allowed
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2012 (6) TMI 50
Condonation of delay in filing the appeal - appellants have taken over the management of appellant firm - order was received by them was sent to the outgoing management to take proper action but they failed to do so Held that:- appellants are liable to pay liability of the appellant firm, therefore, took steps for filing the appeal which caused delay of 30 days in filing the appeal. delay are satisfactory, the application for condonation of delay in filing the is allowed Demand of service tax, penalty and interest - appellants are availing the GTA service and are not paying service tax thereon - appellants are not challenging the liability of service tax and interest Held that:- appellants have taken the plea before the adjudicating authority due to financial crisis, they could not deposit the service tax in time and before the Commissioner (Appeals), they have taken another defence plea that as the appellant was pre-occupied with the treatment of his brother for kidney failure. The appellants are not entitled for the benefit of section 80 of Finance Act,1994. option to the appellants to pay 25% of service tax as penalty. penalty under section 78 is confirmed. The penalty under section 76 is dropped as per provision to amended section 78 of the Finance Act, 1994. appeal as well stay petition is disposed of.
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2012 (6) TMI 47
GTA service - denial of cenvat credit on the ground that TR-6 challan is not proper document to avail cenvat credit and cenvat credit is not admissible on outward goods transportation service Regarding proper document Held that:- in the case of Gabriel India Ltd. (1991 (12) TMI 177 (Tri)) that TR-6 is an instrument showing the payment of duty. Therefore, TR-6 challan is a valid document to avail cenvat credit. Therefore, in this case, the appellants are entitled to avail cenvat credit on the strength of TR-6 challan Regarding - input service credit on outward transportation service, Hon'ble Karnataka High Court case of ABB Ltd. (2011 (3) TMI 248 (HC)) has held that the assessee is entitled for input service credit on outward transportation of the goods from the place of removal which is an activity of their regular business. appellants are entitled for input service credit on GTA service appeal is allowed
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2012 (6) TMI 46
Delayed payment of service tax - jurisdictional Assistant Commissioner issued a show-cause notice alleging non-payment of service tax Held that:- appellant-assessee had discharged the service tax liability and interest thereon much before the issue of the show-cause notice and had also filed the service tax return for the relevant period before the issuance of the notice. They also informed that they had also deposited late fee of Rs. 2,000/- for the delayed filing of the return provisions of sub-section (3) of Section 73 is clearly attracted in the facts of the case and issuance of a show-cause notice for demand of service tax and imposition of penalties was not at all warranted. imposition of penalties under Sections 76, 77 and 78 in this case was not at all warranted and therefore set aside. The appeal is allowed
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2012 (6) TMI 45
Whether the recipient of service provided by the foreign service provider is liable to pay service prior to 18.04.06 Held that:- in the case Indian National Shipowners Association (2008 (12) TMI 41 (HC)) service receipt is not liable for service tax prior to 18/4/2006 in respect of the service received from Foreign Service Provider. Appeal is allowed.
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2012 (6) TMI 43
Demands of service tax - Manpower Recruitment or Supply Agency's Service - Assistant Manager stated that they were not registered with the department under the above head and that they were going to take such registration - appellant received ₹ 9,62,98,816/- as gross amount for the taxable service rendered to the sugar factory - burden of service tax paid by the appellants was passed on to the sugar factories through 'Cenvatable' invoices and that credit thereof was taken by the latter. The learned counsel for the appellants has admitted this fact. This factual situation would also go to establish the admitted tax liability of the appellants Extended period of limitation - it was not necessary for the department to invoke the proviso to Section 73(1) ibid for demanding service tax from the assessee for the aforesaid period, which is within the normal period of limitation prescribed under Section 73(1) Penalty under Section 78 of the Finance Act, 1994 Held that:- suppression of taxable value of the service cannot be sustained. penalty imposed under Section 78 of the Finance Act set aside Penalty under Section 77 of the Finance Act - assessees misrepresented facts in the ST-3 returns filed by them Held that:- Section 77 as it stood during the material period provided for a penalty for those who failed to file return. The provision did not contemplate any penalty on any person for misrepresentation of facts in the return filed by him. Therefore, the proposal raised in the relevant show-cause notices and the decision taken by the learned Commissioner under Section 77 of the Finance Act, 1994 are both unsustainable. The penalties imposed on the appellants under Section 77 set aside. appeals are disposed of
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2012 (6) TMI 25
Service tax credit taken on commission agent service received - demand was made on the ground that the services received from selling agents did not have any nexus with the manufacture and clearance of final product from the place of removal and service was beyond stage of manufacture and clearance of goods and therefore cannot be considered as input service Held that:- nexus to manufacturing activity need not be proved as regards input services in view of the inclusive part of the definition. service tax paid on the commission paid to the foreign commission agents for sales promotion is admissible as cenvat credit. If the credit paid to foreign commission agents for sales promotion is admissible, naturally, service tax paid to commission agents for sales promotion within the country also would be admissible. in the case of Coca Cola India (P.) Ltd. (2009 (8) TMI 50 (HC)). appeal is allowed
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2012 (6) TMI 23
Cenvat credit Held that:- As Section 73 of the Finance Act, 2010, it has been clarified that, if the assessee is manufacturing both dutiable as well as exempted final products and is not maintaining separate account but at the time of clearance of exempted final products, if the assessee reverse the credit taken on inputs which has gone into the manufacture of the exempted final products, in that case the assessee is not required to reverse 8% or 10% of the amount of the exempted products cleared as per Rule 6(3) of CENVAT Credit Rules, 2004. In this case the contention of the appellant is that they have already reversed the input credit along with interest at the time of clearance of their exempted final products, subsequent to the amendment, the adjudicating authority has passed an order dated 13/12/2010 by giving the benefit of Section 73 of the Finance Act, 2010. Therefore, the Commissioner (Appeals) order has become infructuous. Therefore, the appeal is allowed
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2012 (6) TMI 22
Delayed payment of service tax - jurisdictional Assistant Commissioner issued a show-cause notice alleging non-payment of service tax Held that:- appellant-assessee had discharged the service tax liability and interest thereon much before the issue of the show-cause notice and had also filed the service tax return for the relevant period before the issuance of the notice. They also informed that they had also deposited late fee of Rs. 2,000/- for the delayed filing of the return provisions of sub-section (3) of Section 73 is clearly attracted in the facts of the case and issuance of a show-cause notice for demand of service tax and imposition of penalties was not at all warranted. imposition of penalties under Sections 76, 77 and 78 in this case was not at all warranted and therefore set aside. The appeal is allowed
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2012 (6) TMI 21
BAS - whether the Respondent availing the services of commission agents, are eligible for taking credit of the service tax paid by the commission agents on the commission received by them Held that:- in the case of Bhillai Auxiliary Industries (2008 (12) TMI 134 - CESTAT NEW DELHI - Service Tax) , service of commission agents received by a manufacturer is an input service eligible for Cenvat credit, Revenues appeal is dismissed
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2012 (6) TMI 20
Stay application - waiver of pre-deposit - appellants provided erection, commission and installation services in respect of various turnkey contracts - adjudicating authority had held that the appellants suppressed the facts and not informed the Revenue about services rendered by them Held that:- appellant taken a plea that the contracts entered by them with various parties would squarely get covered under the definition of works contract under section 65(105)(zzzza) which came into effect from 1-6-2007, adjudicating authority has not given any reasoning to hold against the appellant on this point, there is no dispute that the contracts are understood as works contract act by contracting parties, application for waiver of pre-deposit of amounts is allowed
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