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Service Tax - Case Laws

Showing 21 to 40 of 134 Records

• 2012 (6) TMI 662
  

  Waiver of pre-deposit – CENVAT Credit on Share Registry Services – Held that:- assessees have made out a strong prime facie case for unconditional waiver as ‘Share Registry Service' is one of the specified services in the second part of the definition of “Input Service”, the credit appears to have been availed in accordance with law.

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• 2012 (6) TMI 637
  

  Imposing of penalty u/s 76 - assessee contested that entire amount of service tax liability, interest thereof stands paid by the appellant before the issuance of show cause notice - Held that:- As decided in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX Versus M/s ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD [2011 (9) TMI 114 (HC)]that Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states that after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid - Therefore, authorities have no authority to initiate proceedings for recovery of penalty u/s 76 - in favour of assessee.

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• 2012 (6) TMI 636
  

  Denial of liability to pay service tax under "Mandap Keeper's Services" or under the 'Club or Association Services" by assessee, i.e.Club - The petitioner is giving service to its members but the club is formed on the principle of mutuality - Held that:- As considered by the Hon'ble Supreme Court in the case of Joint Commercial Tax Officer, Harbour Division, II-Madras v. The Young Men's Indian Association[1970 (2) TMI 87 (SC)]that in spite of the definition contained in Section 2(n)of the Madras General Sales Tax Act, 1959 read with Explanation I of the Act if there is no transfer of property from one to another there is no sale which would be exigible to tax. If the club even though a distinct legal entity is only acting as an agent for its members in matter of supply of various preparations to them no sale would be involved as the element of transfer would be completely absent. This position has been rightly accepted even in the previous decision of this Court.

  Members' clubs to which category the clubs in the present case belong cannot be made subject to the provisions of the Licensing Acts concerning sale because the members are joint owners of all the club property including the excisable liquor. The supply of liquor to a member at a fixed price by the club cannot be regarded to be a sale - Where such a club has all the characteristics of a members' club consistent with its incorporation, where every member is a shareholder and every shareholder is a member, no licence need to be taken out if liquor is supplied only to the members.

  sale and service are different but the basic feature common in both transaction requires existence of the two parties - in view of the mutuality and in view of the activities of the club, if club provides any service to its members may be in any form including as mandap keeper, then it is not a service by one to another as foundational facts of existence of two legal entities in such transaction is missing - in favour of assessee.

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• 2012 (6) TMI 635
  

  Refund of unutilized CENVAT credit availed on input services - original authority rejected the refund claims in toto holding that the services which were claimed by the parties to be input services did not have any nexus with the export of output services - Board's Circular dated 19.1.2010 required those who claimed refunds of the kind involved in these cases, to produce Chartered Accountant's certificate in support of such claim – Held that:- Original authorities will have to re-examine the question whether the refund-claimants have been able to establish a nexus between the input services and the output services - parties need to be given a reasonable opportunity of producing Chartered Accountant's certificates and the original authorities should examine the same in the light of the Board's Circular - orders are set aside and all these appeals are allowed by way of remand

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• 2012 (6) TMI 634
  

  Input services - Recovery of excess of CENVAT credit availed - Held that:- Even if sub-rule (3) prescribes a limit of 20% for availment of service tax credit, sub-rule (5) provides for whole of the service tax credit in respect of the specified input services - sub-rule (5) prevails over sub-rules (1),(2) and (3) - in favour of assessee.

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• 2012 (6) TMI 607
  

  Construction of residential complex for Army and West Bengal Power Devp. Corpn.- Service tax demand - Held that:- Board vide Circular No. 332/16/2010-TRU Dated 24/5/2010 and as decided in KHURANA ENGINEERING LTD. Versus COMMR. OF C. EX., AHMEDABAD [2010 (11) TMI 81 (Tri)]that service provided to Govt. of India directly for end use of residential complex by Govt. of India discovered by the definition of personal use and therefore no Service Tax is leviable on them - as the applicant is engaged in the construction of flats for Indian Army and WBPDCL and the residential complex are for the personal use of the army and WBPDCL - in favour of assessee.

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• 2012 (6) TMI 606
  

  Cenvat credit –Process Outsourcing and Collection of Services - appellant availed input service credit, but as their service was exempt by Notification No. 8/2003 dated 20/06/2003 they could not utilise the CENVAT credit - refund claim under Rule 5 of the CENVAT Credit Rules, 2004 - Held that:- Once the taxable service is exported and various input services have been utilised for providing the output service: the appellants could be entitled for the rebate, which is equal to the service tax paid on the input services. appellants had fulfilled the five conditions of Notification No. 12/2005 already enumerated in the submission of the appellants. appellants are entitled for the rebate in respect of all the rebate claims filed by them during the relevant period. appellant are entitled for input service credit which they have availed for providing the service, which is exempt by way of Notification No. 8/2003 but have been exported. Appeal allowed

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• 2012 (6) TMI 605
  

  Waiver of pre-deposit - Services to Local Self Government bodies in the field of e-governance - contention of appellant is that they were discharging only a sovereign function of the State and hence their activity was not chargeable to service tax – Held that:- Recovery of service tax from service-recipients is ipso facto in the nature of demolishing the plea of sovereign function. Amount of over Rs.44 lakhs was collected by the appellant from the service recipients (local bodies) but only 50% thereof was paid to the Central Government as service tax. The balance amount required to be deposited.

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• 2012 (6) TMI 604
  

  Waiver of pre-deposit - demand of Service Tax - Erection, Commissioning or Installation Service - earthwork and excavation for making civil foundation for windmill towers and did not install or erect such towers, which work was done by their clients – Held that:- works undertaken by the appellant were preparatory to erection, commissioning and installation of windmills – Pre-deposit ordered.

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• 2012 (6) TMI 582
  

  Whether a co-operative bank can be held to be liable for service tax in respect of providing banking and other financial services as covered by the expression "or any other body corporate, or any other person" used in Section 65 (105)(zm) and sub-section 65 (12) - Held that:- Tribunal held in case of Madhav Nagrik Sahkari Bank Ltd Vs. CCE Indore-I (2012 (3) TMI 283 (Tri)) that even the cooperative bank will be covered by the heading "any other body corporate, or any other person" used in Section 65(105)(zm) and sub-section 65(12) of the Finance Act, 1994 and would be liable to pay service tax. Hence directed to make pre-deposit and subject to deposit of the tax amount, pre-deposit of penalty and interest stands waived - Decided against the assessee.

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• 2012 (6) TMI 581
  

  Adjustment of excess service tax paid for the discharge of service tax liability for the subsequent period – Held that:- Considering submission that the appellants had wrongly mentioned the provisions of Rule 6 (4A) but in fact the provisions of Rule 6(3) will be applicable in this case no point to deny the adjustment to be made – in COMMISSIONER OF C. EX., MYSORE Versus POWERCELL BATTERY INDIA LTD.[ 2010 (3) TMI 357 (Tri)] it was decided that where an assessee has paid to the credit of Central Government service tax in respect of a taxable service the assessee may adjust the excess service tax so paid by him (calculated on a pro rata basis) against his service tax liability for the subsequent period – in favour of assessee.

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• 2012 (6) TMI 580
  

  Demand of service tax – C&F services - demands stand confirmed by taking the entire consideration figures from the balance sheet of the appellant – Held that:- Service Tax discharged by treating the services as Business Auxiliary services is to the tune of around Rs. 13,87 lakhs approximately. applicant-appellant directed to make further deposit of Rs. 2.5 lakhs

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• 2012 (6) TMI 579
  

  Waiver of pre-deposit - services of maintenance and repair – Held that:- no maintenance contract between the appellant and their client and services have been provided under the rate contract. As and when their client required the services of the appellants, they entrust the work to them at the rates agreed by them in the contract. Decided in favor of assessee.

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• 2012 (6) TMI 578
  

  Cenvat Credit – service tax paid on manpower recruitment, maintenance, electrical maintenance, ship fees, mobile phone services, insurance of building involved, service tax in rent a cab and the mobile services – Held that:- services were covered by Order of this Tribunal dated 20.1.2010 wherein the Tribunal has not allowed Cenvat credit in respect of the services given holding that these are not services connected to the manufacture of the goods in respect of the appellants - Credit not available

  Availment of Cenvat Credit on the canteen services – Held that:- Cenvat credit is not admissible to the appellants if the cost of the food is borne by the workers of the factory.

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• 2012 (6) TMI 555
  

  Service Tax demand and penalty - the activity of marketing of loan schemes from various banks, financial institution, the appellant has provided services falling under the category of Business Auxiliary services - Held that:- Since show cause notice stands issued on 7.2.2007 for the period 1.7.03 to 31.8.04, thus invoking the longer period of limitation to be decided in favour of the assesses and as such has held the demand to be barred by limitation -BRIJ MOTORS PVT. LTD. Versus COMMISSIONER OF CENTRAL EXCISE, KANPUR [2011 (11) TMI 410 (Tri) ] - as demand in this case can be sustained only to the extent covered in the normal period of limitation in such a situation penalties are not imposable either - in favour of assessee.

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• 2012 (6) TMI 554
  

  Penalty under Section 78 - service tax liability on the commission received - Held that:- Appellant could have entertained a bonafide belief that there is no liability for services rendered during the relevant period - invoking the discretion given under provisions of Section 80 the appellant has given a justifiable reason for setting aside the penalty imposed under Section 78 - in favour of assessee.

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• 2012 (6) TMI 553
  

  Penalty - short payment due to calculation mistakes - there was excess payment in respect of three years and the short levy was only during one year namely 2006-07 – Held that:- it was not a fit case for invoking Section 78 of the Finance Act implying that there was no intention to evade service tax - Appellants have paid the service tax along with interest though the same appears to be time barred. Provisions of Section 80 invoked and penalty under Section 76 set aside - Appeal is allowed by setting aside the penalty under Section 76 of the Finance Act.

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• 2012 (6) TMI 552
  

  Person liable to pay service tax under GTA - consignment agents are agents of the appellants engaged in the business of selling paper and paper boards on behalf of the appellants - freight amounts are paid by the consignment agents and are deducted from the sale proceeds received from the ultimate buyers of the paper and paper boards – Held that:- It is not possible to hold that the appellants are paying the freight through their agents and are therefore liable to pay service tax. Consignment agents squarely fall under the category of persons who are liable to pay service tax since they have paid the freight amount themselves. - Demands raised against the appellants cannot be sustained - Orders are set aside and all the five appeals are allowed.

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• 2012 (6) TMI 551
  

  Cenvat credit – service tax paid on ‘outdoor catering service' - for supply of food in the factory canteen to the factory workers/ employees – Held that:- matter remanded to the original authority for proper verification of the relevant facts. Direction to original authority to grant the benefit of CENVAT credit if they produce evidence of (a) strength of the factory workers being above 250 in each factory and (b) no recovery from workers towards cost of service.

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• 2012 (6) TMI 524
  

  Waiver of pre-deposit – Manpower Supply service - receipt of manpower supply from the holding company - M/s. Bain & Company , USA – Held that:- in case of supply of manpower by an agency, the persons supplied are the employees of the supply agency who receive their salaries/wages and other allowances from such agency and not from the clients - Persons loaned by the holding company to the appellants were receiving their salaries and allowances from the appellants in foreign exchange and only their P.F. Contribution in foreign exchange was being remitted to the holding company as they were earlier working for the holding company - Persons, who are alleged to have been supplied by the holding company to the appellant can not be said to be the employees of the holding company - No services of "manpower recruitment or supply agency" has been received by the appellant from their holding company. Stay application is allowed.

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