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Service Tax - Case Laws
Showing 41 to 60 of 134 Records
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2012 (6) TMI 522
Denial of the benefit of Notification 1/2006 Dated 01.03.20062006 as the appellant has availed CENVAT credit - the appellant are engaged in providing construction services – Held that:- As the appellant has reversed the CENVAT credit availed by them, along with interest, same shall be interpreted as if appellant has not availed input service credit after introduction of notification 1/06 – in favour of assessee.
Availment of CENVAT credit on outward transportation services – Held that:- As decided in COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, BANGALORE Versus M/s ABB LTD. and others[2011 (3) TMI 248 (HC)] that prior to 01.04.2008, the assessee is entitled to take CENVAT credit of outward transport agency service – in favour of assessee.
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2012 (6) TMI 521
Refund – time bar - Commissioner (Appeals) allowed the claim without time bar after holding that the amount paid by the party did not represent any tax - Commissioner (Appeals), in this connection, relied on the Board's Circular No. B/11/1/2002-TRU dated 01.08.2002 - – Held that:- no manner of challenge against the reliance placed by learned Commissioner (Appeals) on the Board's circular - application is dismissed.
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2012 (6) TMI 520
Waiver of pre-deposit - 'Franchise Service' - appellants getting branded alcoholic beverages manufactured from different contract bottling units (CBUs) on contract basis - activity of the applicants for the subsequent period, in the applicants own case, the Commissioner has dropped the demand holding that the activity undertaken by the applicants does not fall under the 'Franchise Service'. He further submitted that prior to 16.6.2005, under the exhaustive definition, it was held by the Commissioner that activity does not fall under 'Franchise Service' – Held that:- activity undertaken by the applicants cannot be covered under the restricted definition of 'Franchise Service'. Further, the issue is debatable and interpretation of law under which category the activity undertaken by the applicants shall be covered and from whom the Service Tax is to be recovered is also in jeopardy. Waiver of pre-deposit of entire demand of Service Tax, interest and various penalties granted.
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2012 (6) TMI 494
Denial of CENVAT credit on stockbroker's service - 'Input service under Rule 2(l) of CCR, 2004 - stockbroker's service used for the purpose of disposal of the shares held in another company – Held that:- The activity of sale of shares had any nexus with the business of the appellant would depend on how the sale proceeds were applied and the Working Director's affidavit does not bring out a clear picture as it contains only general averments - neither in the affidavit nor in the MOA is there anything to indicate that the shares held in another company were sold for accomplishing any purpose integrally connected with the business of the appellant – denial of CENVAT credit on stockbroker's service as service was not used in or in relation to the manufacture of goods, the burden lay on the noticee to establish that the said service was covered by the inclusive part of the input service, if not by the main part - that the expression "such as" in the definition of input service is exhaustive and is restricted to the services named therein – against assessee.
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2012 (6) TMI 493
Denial of cenvat credit of service tax paid on outward freight - Held that:- The definition of 'input service' contains both the word 'means' and 'includes', the portion of the definition to which the word ‘means’ applies has to be construed restrictively as it is exhaustive and ‘ includes’ has to be construed liberally as it is extensive - the exhaustive portion of the definition of 'input service' deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products, it also includes clearance of final products from the place of removal till it reaches its destination falls within the definition of input, service - the word transportation is included in the phrase 'clearance of final products from the place of removal' after the final products has reached the place of removal - in the later portion of the definition the words 'activities relating to business’ is used to expand the meaning of the word 'input service'- while dealing with outward transportation two words inputs' or 'capital goods' are conspicuously missing as after inward transportation of inputs or capital goods into the factory premises, if a final product emerges, that final product has to be transported from the factory premises till the godown before it is removed for being delivered to the customer, therefore, 'input service' includes not only the inward transportation of inputs or capital goods but also outward transportation – in favour of assessee.
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2012 (6) TMI 492
Denial of cenvat credit of service tax paid on outward freight - Held that:- The definition of 'input service' contains both the word 'means' and 'includes', the portion of the definition to which the word ‘means’ applies has to be construed restrictively as it is exhaustive and ‘ includes’ has to be construed liberally as it is extensive - the exhaustive portion of the definition of 'input service' deals with service used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products, it also includes clearance of final products from the place of removal till it reaches its destination falls within the definition of input, service - the word transportation is included in the phrase 'clearance of final products from the place of removal' after the final products has reached the place of removal - in the later portion of the definition the words 'activities relating to business’ is used to expand the meaning of the word 'input service'- while dealing with outward transportation two words inputs' or 'capital goods' are conspicuously missing as after inward transportation of inputs or capital goods into the factory premises, if a final product emerges, that final product has to be transported from the factory premises till the godown before it is removed for being delivered to the customer, therefore, 'input service' includes not only the inward transportation of inputs or capital goods but also outward transportation – in favour of assessee.
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2012 (6) TMI 491
"Erection and commercial and industrial construction service" as also "work contract"- the appellant has two units - demand raised as absence of option exercised by the appellant before they started paying duty under the works contract - Held that:- consideration clarification issued by the CBEC vide their D.O.F.NO.334/12/09-TRU dt.6.7.09. It stands clarified that the service provider who paid service tax prior to 1.6.07 for taxable service such as erection, commissioning or installation service, commercial or industrial construction services or construction of complexes services, as the case may be, is not entitled to change classification to single composite service for the purpose of payment of service tax prior to 1.6.07 and hence is not entitled to the benefit of composite scheme - the appellant has not been able to make out prima a case in its favour so as to allow stay petition - direct the appellant to deposit an amount of Rs.15 lakh as pre-deposit.
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2012 (6) TMI 490
Service of renting of immovable property - demand of service tax - Held that:- Considering the definition of immovable property, the same does not include building used solely for residential purposes and building used for the purpose of accommodation including hotels, hostels, boarding houses, holidays accommodation, tents, camping facility etc.- in favour of assessee.
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2012 (6) TMI 489
Waiver of pre-deposit - maintenance and repair service – applicant is engaged in repairing and overhauling various aircrafts for Indian Air Force, Indian Army, Coastguard, Navy and for other civilian customers in the Aviation Industry – whether the value of materials used for providing the said services should be included or not – Held that:- value of materials supplied while rendering such services need not be included. Pre-deposit waived.
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2012 (6) TMI 488
Waiver of pre-deposit - demand of service tax is for the period from 10.9.2004 to 31.3.2006 and the same was confirmed against the appellant by the original authority in adjudication of a show-cause notice which was issued on 26.11.2008 invoking the extended period of limitation –SCN merely mentions non-declaration of P & T charges collected from customers for providing Banking and Other Financial Services in ST-3 returns – Held that:- show-cause notice which was issued in November 2008 did not specifically allege any suppression of such fact with intent to evade payment of service tax. Hence there will be waiver of pre-deposit.
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2012 (6) TMI 487
Waiver of predeposit - On the one hand, Form No.ST-4 was used by the party and, on the other hand, Section 35 of the Central Excise Act was mentioned in the cause title of the appeal. The COD application filed before the Commissioner (Appeals) did not make any mention of sub-section 3 of Section 85 of the Finance Act, 1994 – Held that:- appellant was obviously confused as to what provisions of law were to be selectively invoked. Matter remanded to Commissioner (Appeals) to reconsider the COD application filed by the party.
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2012 (6) TMI 486
Cenvat credit on services rendered by the CHA – Input credit - Held that:- cenvat credit in respect of services rendered by CHA is admissible to the appellants.
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2012 (6) TMI 458
Notification No.4/2004-ST - alleged wrong availment of said Notification for the CHA services rendered outside the unit situated at Special Economic Zone, Chennai - demand together with interest and penalty u/s 76 & 78 imposed - Held that:- Notification No.4/2004-ST being a conditional exemption notification issued u/s 93 of the Finance Act 1994, exempting taxable services provided to developer of a SEZ or a unit in the SEZ by any service provider for consumption of service within such SEZ, cannot be interpreted on the basis of the provisions of SEZ Act, 2005 or the Rules made thereunder and the conditions specified therein have to be fully satisfied for availing the benefit under the said notification. Further, the notification came into force much before the Special Economics Zone Act or the Rules made there under came into force. Therefore, exemption will not be available if the services are consumed elsewhere than in the SEZ. Accordingly, appellant directed to make a pre-deposit of Rs.1.00 Crore within a period of eight weeks and report compliance - Decided against assessee.
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2012 (6) TMI 457
Extended period of limitation - assessee contended that SCN is time barred as earlier SCN dated 31/8/04 had been issued on the same ground for demand hence extended period of limitation cannot be invoked - Held that:- When the activity of the appellant was fully known to the department and earlier a SCN dated 31/8/04 had been issued for demanding service tax for the period from 1/4/02 to 31/12/03, the department cannot accuse the appellant of suppression of fact for the subsequent period, even if they did not pay the service tax or filed the returns, as the department could have searched their premises and obtained the required information. Hence, for demand of non-paid service tax for the subsequent period from February 2004 to 31/3/05, the longer limitation period under proviso to Section 73 (1) would not be applicable. Since SCN for this period has been issued on 15/10/07, the same is time barred hence, demand is not sustainable on the ground of limitation - Decided in favor of assessee.
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2012 (6) TMI 456
Waiver of pre-deposit - Commercial Training and Coaching Service - appellant was engaged in the activity of providing training courses on English, German, French, etc. - they were under the impression that their activity fell in the category of Vocational Training Course and hence exempted from payment of Service Tax – Held that:- Board's Circular No.59/8/2003-ST dated 20.6.2003 wherein it was clarified that vocational coaching and training services provided by foreign language institutes would not be chargeable to Service Tax on account of exemption under Notification No.9/2003-ST. They cannot be held to have suppressed any fact with intent to evade payment of Service Tax. - Extended period of limitation, prima facie, is not invocable. Waiver of pre-deposit granted.
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2012 (6) TMI 455
Waiver of pre-deposit - overriding commission from the foreign company - demanded Service Tax – Held that:- no categorical finding as to whether the service rendered by the appellant was received by the foreign company or not. - Appellant is supported by Board's circular and Rule 3(1)(iii) read with Rule 4 of the Export of Service Rules, 2005. Waiver of pre-deposit granted.
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2012 (6) TMI 454
Intellectual property right service - Exemption under Notification 12/2003-ST - deduction of goods sold from gross value - The Appellants owned the trade Mark "EICHER" registered in India in respect of Tractors. They entered into an agreement dated 27-05-2005 for permitting M/s Tafe Motors and Tractors Limited (TMTL) and received Rs.39.60 crores in consideration of such transfer. They did not pay any service tax on this amount.
Held that:- 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 fact that certain post transfer conditions are attached to transfer of the right does not change the nature of the contract. A person selling a particular product to a dealer may impose post sale conditions like he should not re-sell the goods in loose forms, the dealer should sell the product only from a premises displaying the name of the manufacturer, the dealer should not re-sell the goods in other than specified territories or that he should not resell the goods or to the effect that the goods sold should be used only for a specified purpose only does not alter the nature of the transaction as a sale. So the transaction would not be covered by clause (a) of section 65 (55b). But we do not see any reason why the transaction would not be covered by clause (b) section 65 (55b). So the transaction amounts to Intellectual Property Service.
Definition of sale in section 2 (h) of Central Excise Act - held that:- This provisions can not be interpreted to mean that provisions that are relevant for tangible goods will apply for intangible goods when the subject involved requires a distinction to be made.
Definition of sale in section 4 of Sale of Goods Act, 1930 - held that:- The goods namely the Trade Mark "Eicher" continues to be the property of the transferor or more appropriately the licensor which is the word used in the concerned agreement. Secondly an agreement to sell become a sale only when all the conditions of the agreement are complied with. In this case there are conditions to be complied with by the Appellants in perpetuity and at no point of time the conditions be considered to be fully complied with.
There is no sale involved and the appellants are not entitled to the benefits under Notification 12/2003 is a valid argument.
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2012 (6) TMI 423
Matter was heard by the Bench consisting of learned Member (Judicial) and (Technical) on various dates - the notice for listing the matter afresh was shocking as detailed arguments were advanced by both the sides and the matter was reserved for pronouncement of orders - Sr. Advocate submits that they have not made a prayer for fresh hearing while filing the Misc. application - Held that:- After appreciating the submissions made by the learned Sr. Advocate, expressing difficulty in rehearing of the appeal and making a request for passing of the order by the same Bench who heard the matter originally it is desirable to place the file before the Hon'ble President for passing appropriate orders, as having no powers/jurisdiction to place the matter before any particular Bench - Registrar is directed to place the file before the Hon'ble President.
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2012 (6) TMI 421
Demand - transportation of sugar cane from collection centres to the factory - Held that:- Notification No.18/2003-Service Tax, dated 21-8-2003 has been issued which exempts commission or installation services provided by a commissioning or installation agency other than a commercial concern, thus accordingly, the commissioning or installation services provided by an individual will be exempt from service tax - As individual farmers who owned tractors or lorries either in their name or the names of their family members and who transported sugar cane from collection centre to their factory were not commercial concerns engaged in transportation of the goods no point of levying service tax - in favour of assessee.
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2012 (6) TMI 420
Service tax liability under the category of commercial or industrial construction services as per the explanation added to sub clause zzzh of clause (105) of Section 65 of the Finance Act, 1994 – Held that:- The present case is not covered by the clause given in parenthesis in the text of the Explanation but covered by the situation envisaged in the main part of the Explanation thereby meaning that the appellant as a builder cannot be deemed to be service provider providing any service in relation to industrial/commercial or residential complex to the ultimate buyers of the property any time before 1-7-2010 - the deeming provision would be applicable only from 1-7-2010 contained in the explanation added to Section 65(105)(zzq) and (zzzh) having only prospective effect - prior to this date, a builder cannot be deemed to be service provider - as the entire dispute in the present case lies prior to 1-7-2010 a prima facie case against the impugned demand of service tax and the connected penalty arises - since appellant paid an amount of over Rs.64 lakhs waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal – in favour of assessee.
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