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Service Tax - Case Laws
Showing 61 to 80 of 134 Records
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2012 (6) TMI 419
Appealable order - Reversal of the Cenvat Credit - services of renting of immovable property appeal rejected as the letters issued by the Assistant Commissioner demanding the reversal is not an order-in-original against which an appeal lies Held that:- As there is a clear finding by the Assistant Commissioner on the question of eligibility to Cenvat credit and also a direction to reverse the credit availed in view of this factual position, the communication satisfies the requirements of an appealable order as decided by the Jaswant Sugar Mills vs. Laxmi Chand [1963 (10) TMI 9 (HC)] if a communication in substance contains determination of a question by the application of objective standards as per the legal rules declaring a right affecting their civil rights and it is based on an investigation involving ascertainment of facts by means of evidence it should be considered as proper communication acceptable in the eyes of law - remand the matter back to the lower appellate authority for a decision on merits.
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2012 (6) TMI 418
Adjustment of excess payment of service tax made in the previous quarter - Held that:- As the excess amount actually adjusted amounting to Rs.32,545/- with interest has been deposited and penalty also has been deposited and considering the amounts deposited as sufficient, the requirement of pre-deposit of balance dues is waived and stay against recovery of the same is granted during pendency of appeal.
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2012 (6) TMI 393
Difference in income shown in the balance sheet and in ST-3 returns Held that:- As Chartered Accountant has made all considerable efforts to prepare the statement and details which would show that a proper verification has been carried out this would nowhere show that there was mistake or with an intention to evade duty - differential service tax demand has arisen because of different methods followed for the purpose of preparation balance sheet and ST-3 return - waiver of penalties by invoking Section 80 instead of remanding the matter to original adjudicating authority for verification of records in favour of assessee.
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2012 (6) TMI 392
Refund claim filed under Notification No. 41/2007-ST rejected - THC refund claim rejected as service provider was not authorized by the Port Held that:- In the case of Ramdev Food Products Pvt. Limited [2011 (3) TMI 1256 (Tri)] it has been concluded that refund cannot be denied on the ground that service provider has not been authorized by Port - order rejecting the TCH and repo charges cannot be sustained.
Refund claim rejected as service provider was registered under the category of BAS/ BSS Held that: - Going through invoices it is not possible to make out which category the service provider has been registered - no evidence to show that service tax of which refund claim was made was the service tax paid on the BAS/ BSS which are not covered by the notification - in the absence of any specific clarification and merely on the basis of observations rejection of refund cannot be sustained.
Refund claim on documentation charges rejected as being BAS/ BSS or Port Service Held that: - The documentation charges have been charged by the CHA of the appellant and there is no indication as to which service has been provided - in the absence of any specific detail the presumption would be that service provided is relating to CHA which is one of the services notified under Notification No. 41/2007.
Refund claim on GTA service rejected - Revenue stand one of conditions of admitting details of export invoice relating to export goods specifically mentioned in the LR and corresponding shipping bill has not been fulfilled assessee contention that while admitting that export invoice details has not been given in the LR, co-relation is possible since the factory invoice number is mentioned in the export invoice and ARE-1- Held that:- The notification requires the export invoice number to be mentioned in the LR and in the shipping bill considering the case of Ramdev Food Products Pvt. Limited [2011 (3) TMI 1256 (Tri)] that this is a rectifiable defect and the appellant has to file a reconciliation statement that how export invoice can be linked with LR - matter is remanded back to original adjudicating authority for decide afresh.
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2012 (6) TMI 391
Payment of service tax out of the Cenvat credit on GTA services - department stated that service tax to be paid was an input service and could not be paid through cenvat credit account as the account could be used for payment either duty on finished goods or service tax on output service Held that:- On perusal of para 2.4.2 of CBEC s Excise Manual of Supplementary Instructions shows that there is no legal bar to the utilization of Cenvat credit for the purpose of payment of service tax on the GTA services - even as per Rule 3(4)(e) of the Cenvat Credit Rules, 2004, the Cenvat credit may be utilized for payment of service tax on any output service - in favour of the assessee.
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2012 (6) TMI 390
Rent-a-cab service - service tax demand along with interest thereon and a penalty of equivalent amount - the appellant had supplied the buses along with driver and was receiving consideration on a kilometer basis from PCMT Held that:- As per the agreement, the appellant should supply medium buses having 46 sitting capacity of 30 numbers and mini buses having 32 sitting capacity of 20 numbers to ply the buses on PCMT permit granted by RTO registered in the name of PCMT as lessee and will operate as stage carriers within the operational area of PCMT - from the agreement, it is clear that the appellant is renting or hiring buses to PCMT who undertakes the transport to passengers, on stage carriage basis - For the renting/leasing of buses, the appellant receives a consideration on a per km basis for the distance actually run Considering the definition of "Rent-a-cab scheme operator" u/s 65(91) the assessee is held liable to be fall under it - Merely because the appellant has also provided a driver in terms of the contract, who drives the vehicle, it does not mean that the contract is not for renting of cabs appellant to make a pre-deposit of 50% of the service tax adjudged in the instant case within a period of eight weeks from the date of order - against assessee.
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2012 (6) TMI 389
Option to pay 25% towards penalty, interest and service tax revenue appeal that option to be given by the original adjudicating authority and not at the appellate stage Held that: - As decided in CCE, AHMEDABAD Versus AKASH FASHION PRINTS PVT LTD.[ 2009 (1) TMI 113 (HC)] that the option to pay 25% towards penalty can be extended at the appellate stage also if the same has not been extended in the order-in-original - since the order-in-original has not extended the option to pay penalty, interest and service tax within thirty days from the date of the order no reason to interfere with the impugned order - against revenue.
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2012 (6) TMI 364
Stock Broking service - Valuation - Revenue contending that various charges like Misc. charges, turnover charges, Trade Guarantee Fund (TGF), Investor's Protection Fund (IPF), Stamp duty, Stock Exchange charges, Transaction charges, SEBI fees, Custom Protection Fund (CPF) and Demat charges received by stock brokers shall constitute value of taxable service - Held that:- The valuation provision incorporated in section 67 of the Act envisaged that aggregate of commission or brokerage only shall be measure of tax. Basis of taxation was provided in express terms and no implied taxation was permitted by law. - Provision of section 67 provides the basis to determine the value of taxable service. No receipt other than commission or brokerage made by a stock broker is intended to be brought to the ambit of assessable value of service provided by stock broker. Charging section in a taxing statute is to be construed strictly.
The correct assessable value of taxable service usually is the intrinsic value of the service provided since service commands that value only and that should only be taxed without any hypothetical rule of computation of value of taxable service u/S 67. Further, burden of proof was on Revenue to establish that such receipts were in the nature of commission or brokerage or had the characteristic of such nature which it failed to discharge. Therefore, aforesaid charges realized by appellants were not being of commission or brokerage are not taxable and shall not form part of gross value of taxable service.
Time bar - Held that:- Suppression of material facts cannot be said to have been made when the commission or brokerage received were disclosed in their service tax returns and taxes were paid thereon. No rule could be pointed out requiring a manufacturer to disclose the turnover of exempted goods. Hence, no penalty is imposable for no case of section 73 made out against Assessee - Decided in favor of assessee.
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2012 (6) TMI 363
Construction of residential complexes - appellant under Joint Development Agreements with land owners assigned portion of the constructed area, in the form of flats / houses, in favor of the land owners and sold remaining constructed area, in the form of flats/houses, to various buyers - dispute in the nature of non-payment of tax in respect of flats handed over to land owners - Held that:- Relationship of service provider and service receiver - In instant case, since UDS is registered in name of land owners and then the Developer constructs flats for the original Land Owner, becoming UDS holder after registering UDS in his name. Hence it is clearly outside the scope of the clarification given by CBEC and there is a service provided to the UDS holders including the original Land Owners. Also, residential complexes in question were not constructed for personal use of the owners of the land. It was predominantly for sale to individual buyers and was thus covered by the definition of the service.
On contention that that there was no provision in law prior to 19-04-2006 to tax consideration received other than in the form of money it is held that once it is decided that tax was payable on the activity, the liability cannot be set to naught because the section dealing with valuation specified only amounts received. It is well-settled that the court would construe the statute in such a manner so as to make the machinery workable.
Valuation of flats given to land owners - assessee contending different valuation on ground of point of time of transfer of land - Held that:- Since flats handed over to the land owners were not different from what were sold to the individual buyers, hence it does not warrant assessment of a different value for services in respect of flats handed over to land owners as compared to flat sold to individual buyers.
Time bar - Since there has been persistent resistance on the part of the appellant in providing the required information, hence appellant cannot claim benefit of bonafide belief and argue that demand for a period of one year from relevant date only will apply.
Flats sold to Individual buyers - assessee contended that flats are constructed and sold and hence the construction service is for self - applicability of circular dated 29-01-2009 issued by CBEC - Held that:- Since UDS was first registered and then an agreement to construct was entered into. Therefore the clarification dated 29-01-2009 issued by CBEC does not apply in this case.
Registration fees and stamp duty paid by the appellant and recovered from the buyers - held that:- the expenses relating to stamp duty and registration charges cannot be considered as expenses incurred in the course of providing the service. These are not reimbursed expenses incurred on behalf of the clients and in our view the expenses are outside the scope of the expression of reimbursable expenses very commonly used in the context of value of services. - to be excluded subject of verification.
Applicability of definition of a residential complex only to cases where one building has more than twelve flats or will extent to cases where different buildings in the same compound totally having more than twelve flats - Held that:- Expression residential complex will apply only in case of buildings which have more than twelve residential units.It is an agreed fact that this was not the case in respect of Kamakotivilasam project. So we are of the view that the demand in respect of Kamakotivilasam project is not sustainable and the same is set aside.
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2012 (6) TMI 362
Demand of Service Tax, interest and penalty - services of Commission Agent based in UK - Business Auxiliary Services - denial of exemption Notification No.13/2003-ST contention of appellant that processes undertaken like threshing and drying do not make the unmanufactured tobacco as processed tobacco, the applicants are eligible for the benefit of exemption notification Held that:- after procuring the unmanufactured tobacco from the growers, undertakes processes. Product should be considered as 'processed tobacco' for the purpose of interpreting Notification No. 13/2003 and therefore they may not be eligible for the exemption. - stay granted partly.
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2012 (6) TMI 361
Penalty - manpower recruitment and supply agency, maintenance and repairs of the building and cleaning services - they did not pay any service tax even though they were providing the taxable services Held that:- penalty under Section 77 would be attracted. As regards penalty under Section 78, appellant had taken service tax registration in 2005, and subsequently they were regularly receiving payment from NMDC for the services provided, neither any service tax paid nor any returned was filed. Provisions of Section 78 are attracted. Appeal dismissed.
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2012 (6) TMI 360
Cenvat Credit of Service Tax paid on outward transportation - transactions were on FOR destination basis - appellant plead that they have record to show that their transactions were on FOR basis in the sense that the excise duty had been paid on the value which included the cost of transportation from the factory to the buyer's premises Held that:- matter is remanded to the Commissioner (Appeals) for de novo decision after examining the records submitted by the appellant in support of their plea that their transactions were on FOR destination basis. Appeal disposed of.
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2012 (6) TMI 333
GTA service - service tax abatement denied for the period January 2005 to March 2009 on the ground that the consignment notes did not have the declaration that the GTA service provider had not availed the benefit of Notification No. 12/2003 and had not taken cenvat credit - Held that:- There are several decisions wherein a view has been taken that it is not essential such a declaration has to be given in the consignment notes but separate declaration would also serve the purpose. Also after 01.3.2008, notification was amended and the requirement of declaration was taken away. Matter remanded to original adjudicating authority for fresh adjudication.
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2012 (6) TMI 332
Rebate claim - rejection on the ground that declaration, required under notification No. 12/2005 was not filed - rejection of portion of the claim on the ground of rebate claim being filed beyond the time limit prescribed u/s 11B - Held that:- Purpose of filing declaration is to prevent evasion of duty by receipt of rebate. Tribunal in case of Wipro BPO Solutions Limited (2011 (10) TMI 261 (Tri))took a view that even though non filing of declaration is only procedural, rebate will not be admissible. Hence, rejection of the claim on this ground has to be upheld.
Applicability of Section 11B of Central Excise Act, 1944 - Held that:- Claims under notification No. 12/2005-ST also are required to be considered as per the provisions of Section 11B, made applicable to service tax matters vide Section 83 of Finance Act, 1994. In this case the claim is for rebate of duty paid on services utilized in export of services and it is similar to rebate claim which are granted under Rule 18 of Central Excise Rules, 2002, in which case, the time limit u/s 11B would be applicable - Decided against the assessee.
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2012 (6) TMI 331
Refund claim of service tax paid on GTA services rejected - export under Notification No.41/2007-ST rejected as the consignment note did not contain the details of export invoice and container number etc. and on the LR these details were written by the staff of the appellant company and not by the issuer of the LR - Held that:- The invoice issued by the transporters contains all the details and from the records it appears that the transporters are following a practice of issuing the LRs which is for the purpose of transportation only and the invoice issued which is in reality, a consignment note and also is a document for the purpose of transaction between the transporter and the appellant - Since LR and the invoice issued together contain all the details the fact that in the LR certain details have been written by the appellant s staff should not be treated as manipulation and consequently the refund claim is to be allowed - in favour of assessee.
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2012 (6) TMI 330
Demand of service tax - construction of petrol bunks - works contract service - applicant was under the bona fide belief that their activities did not fall under "Commercial or Industrial Construction Service" and therefore, did not take registration and pay service tax Held that:- activities undertaken by them clearly relates to 'Commercial or Industrial Construction Service' - claim of the appellant is that they were under bona fide belief that their activities did not fall under 'Commercial or Industrial Construction Service' appears not acceptable.
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2012 (6) TMI 329
CENVAT credit on Outdoor Catering service used by them to provide food to their employees - 25% of the cost of service was recovered by the respondent from the employees Held that:- in Ultratech Cement (2010 (10) TMI 13 (HC) ) original authority directed to quantify the amount of CENVAT credit that would be granted to them after taking into account the extent to which the cost of Catering service was recovered from their employees/workers. The quantum of CENVAT credit admissible to the respondent should be worked out in terms of the Hon'ble High Court's ruling. appeal is disposed of
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2012 (6) TMI 303
Commercial Training or Coaching Centre - assessee contended that definition excludes many institutes or establishment which issues any certificate or diploma or degree or any educational qualification recognized by law for the time being in force and their case fall within the exclusion clause - non-production of documents - Held that:- Since the documents now produced by the appellants were not before the original authority, they are required to be given a second chance to go before the adjudicating Commissioner and prove their case that they fall under the exclusion clause in the definition of Commercial Training or Coaching Centre. Accordingly, we set aside the impugned order and remand the matter to the adjudicating Commissioner.
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2012 (6) TMI 302
Storage and warehousing service - non-payment of Service tax on storage and warehousing service rendered in relation to empty containers on ground of reasonable belief that applicants are not required to pay Service Tax on handling of empty containers - Held that:- Service Tax on storage and warehousing service was introduced in the year 2003. It is not in dispute that they were paying Service Tax on handling and storage of loaded containers. However, due to reasonable belief they could not pay Service Tax on empty containers and they did not have any mala fide intention to avoid/evade Service Tax which is supported by order of adjudicating authority. Appellants are able to show that there was reasonable cause for the failure to pay Service Tax on empty containers. Therefore the penalty imposed u/s 76 is set aside and appeal is allowed with consequential relief.
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2012 (6) TMI 301
Demand of service tax - Business Auxiliary Services - business of toll collection on behalf of M/s. National Highway Authority of India (NHAI), in respect of the services rendered they received a fixed remuneration Held that:- in the case of P.C. Paulose, Sparkway Enterprises (2011 (1) TMI 11 (SC)) activity would get covered under Section 65 clause 105(zzm) of the Finance Act, 1994. The provisions relating to constitution of Airport Authority of India and its collection of entry fees at the airport are more or less similar to the constitution of NHAI and its collection of toll charges. Therefore, if NHAI engages somebody else to collect toll charges on its behalf and pays them remuneration, the service so rendered would appear to merit classification under 'Business Auxiliary Service'. appellant directed to make a pre-deposit
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