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Service Tax - Case Laws
Showing 21 to 40 of 115 Records
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2012 (8) TMI 751
Demand and penalty - Short payment of service tax – Held that:- Services have been rendered by a retired police officer who was not familiar with the law relating to Service tax - appellant was eligible for availing full exemption from Service Tax in terms of Notification No. 6/2005-S.T., - It is a clear case of ignorance in not opting to avail this exemption - sufficient cause for invoking the provisions of Section 80 of the Finance Act - appellant has chosen to collect Service Tax from parties who were willing to pay the tax and paid the same to the department. He has failed to collect the Service Tax from other clients who were not willing to pay - Service Tax liability is upheld - re-quantification of Service Tax liability by adopting cum-tax benefit in respect of cases where Service Tax has not been collected - The interest liability is also upheld on the re-quantified Service Tax liability - penalty imposed under Section 78 is set aside - amount already paid shall be adjusted towards the Service Tax liability and interest so re-quantified.
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2012 (8) TMI 750
Demand of service tax - Held that:- Laying of pipeline for water supply projects will not come under the category of erection, commissioning and installation service - Board’s Circular dated 24-5-2010 makes it absolutely clear that unless the activity undertaken results in the emergence of an “erected, installed and commissioned plant, machinery, equipment or structure”, the activity will not come under the category of erection, commissioning and installation service. Laying of pipelines cannot be construed as a plant, machinery or equipment or structure.
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2012 (8) TMI 749
Penalty under Sec. 76 of the Act – Held that:- Assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act - 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-section (1) in respect of the amount so paid. Therefore, authorities have no authority to initiate proceedings for recovery of penalty under Sec. 76 of the Act.
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2012 (8) TMI 719
Demand of service tax – penalty - appellants were providing the service of cable operators - they did not pay service tax as applicable – Held that:- There is no case for imposing penalty for an amount more than net tax liability - penalty under Section 78 is reduced - penalty under Section 76 is waived - appellant is given an opportunity to pay 25% of the penalty under Section 78 in 30 days of receipt of the order
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2012 (8) TMI 718
Demand of service tax under Management and Business Consultant – Held that:- Revenue has no proof that service have been provided by the Gamma Holding except the terms of the contract - no service tax to be paid for entering into a contract. Levy arises only when activities are performed - Market Research itself is needed for management of an organization cannot be reason for classifying the service as Management Consultancy considering the legal position that a service has to be classified under the heading which is more specific. Market Research may help in Management for that reason the activity of Market Research cannot be classified as Management function when both services are separately taxable - requirement for pre-deposit waived
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2012 (8) TMI 717
Demand in respect of V-SAT connectivity - appellant registered as Stock Broker – Held that:- This service is provided by telegraph authority or by a person licensed under Section 4(1) of the Indian Telegraph Act - appellant are not telegraph authority or a person licensed under Section 4(1) of the Indian Telegraph Act - V-SAT connectivity charges being recovered by the appellant from their customers and sub-brokers cannot be treated as charges for lease circuit services - requirement of pre-deposit of service tax demand, interest and penalty is waived - stay application is allowed.
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2012 (8) TMI 716
Penalty - delay in payment of service tax - service tax and the interest have been deposited belatedly but the penalty amount was not deposited – Held that:- No intention to avoid payment of service tax and infact for the period from September, 2004 February 2005 the service tax has been deduct and further in view of the information given by the NIIT of which the respondent is a franchise claiming that they have made out a ground claiming exemption the said explanation has been accepted by the appellate authority - ground is made out for waiving of the penalty 80 of the Act is justified - appeal is dismissed.
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2012 (8) TMI 688
Demand of service tax - services provided in respect installation of meters at the premises of electricity consumers - claim of exemption benefit provided by Notification No. 45/2010-ST dated 20.07.2010 - Held that:- As the assessee is engaged in transmission and distribution of electricity after purchasing the same from U.P. Power Corporation Limited and is selling electricity to the consumer, thus for bill the consumer for electricity consumed it is essential to install the electricity meter having capacity to withstand the load provided to the consumer. Thus, any activity or service like erection, commissioning and installation of meters as also technical testing and analysis can easily be termed as the service relating to the transmission and distribution of electricity provided by the service provider to the service receiver - claim of benefit of Notification No. 45/2010-ST allowed - in favour of assessee.
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2012 (8) TMI 687
Management consultancy services - reimbursement – Held that:- Service rendered by them was in the nature of Public Relation Service and was not classifiable under the definition for Management Consultancy Service. This being the position. The tax paid by them prior to 1.5.2006 itself was not due - demand issued invoking extended period of time for demanding tax on amount received as reimbursable expenses in connection with such service is prima facie not maintainable
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2012 (8) TMI 686
Demand of service tax - transfer of technology by a foreign company cannot be brought within the ambit of Consulting Engineer Service – Held that:- As the service provider is a foreign company, the Finance Act, 1994 is not applicable to him and he is not liable to pay service tax
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2012 (8) TMI 685
Denial of Cenvat credit – payment towards royalty – Adjudicating Authority concluded that TR-6 challan is not a valid document on which they could take credit – Held that:- Respondent is paying tax as a recipient of service - So naturally the invoice issued by the foreign collaborators would not show the service tax element - So invoice which is the normal document against which Cenvat credit is to be taken is not applicable to this situation - claim for Cenvat credit being a substantial right it cannot be denied on the basis of procedures which cannot be implemented in the facts of the case
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2012 (8) TMI 684
Cenvat Credit of service tax paid on Transit Insurance and Group Health Insurance Policy services - input service – Held that:- Even though the policy covers domestic purchase, movement of goods for job work, imports, domestic sales, exports, etc., the premium paid is linked to domestic sales and exports only - Chartered Accountant submitted that in the case of exports, there is instruction of the Board that when sales are made on FOB basis, Port is the place of removal. Therefore he submitted that in the case of exports, the appellant is eligible for the benefit of service tax credit - if all the sales are made on FOB basis, they will produce evidence to that effect and further, that will not be taken into account for calculation of eligible service tax - matter is remanded to the original authority to finalize quantum of ineligible service tax in respect of ‘transit premium
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2012 (8) TMI 654
Commercial or industrial construction service - construction service by organisation working on no-profit no-loss basis, engaged in imparting knowledge to poor students, to other organisation engaged on same principle and in same field - assessee contended that the definition of commercial and industrial construction is meant for construction of those buildings which are used for commercial purpose - said two organisations working as NPO should not be considered as commercial organisations - reliance placed on Board's Circular No. 80/10/2004-ST - Held that:- It is evident from MOA of organisations, that same are working on no profit basis. Hence, construction activity would not be covered by the definition of commercial and industrial construction services - Decided in favor of assessee
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2012 (8) TMI 653
Waiver of pre-deposit - Demand of service tax – before the show-cause notice was issued for initiating proceedings, appellant paid amount of with interest – Dispute has arisen because of the appellant does not have the record to show that they had actually made the payment - Held that:- Even if the assessee does not have an evidence of payment of service tax, if the returns have been filed for the period involved, the department could have verify from the copies of the returns that any payment has been made or not. A copy of the challan also goes to PAO of the department who maintain accounts of payment by various assessees. It is possible to verify the details are available with the PAO. This effort could have been made before issue of show-cause notice and initiating proceedings when the assessee is making a claim that they have paid the amounts.
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2012 (8) TMI 652
Valuation under service tax - reimbursement of expenses - clearing and forwarding service – Held that:- Service becomes complete and delivery thereof becomes possible only by incurring such expenses and therefore, such expenses form part of taxable value of service - order passed by appellate authority lacks in appreciating material facts - appeal is remanded for passing a speaking and reasoned order
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2012 (8) TMI 607
Export of services - Demand of Service Tax on Business Auxiliary Services - denial of benefit of exemption Notification No.13/2003 dated 20/06/2003 and under the Export of Service Rules,2005 - assessee contested against invoking extended period of limitation - period in question is from 01/07/2003 to 19/11/2003 and from 18/03/2005 to 05/12/2007 - Held that:- Notification No.6/99-ST dated 28/02/1999 exempted services provided to any person in respect of which payment is received in Indian in convertible foreign exchange was rescinded and subsequently re-issued vide Notification No. 21/2003-ST dated 20/11/2003 which remained in force till 14/03/2005. During the intervening period i.e. from 01/03/2003 to 19/11/2003, the Board clarified vide Circular dated 25/04/2003 that " Service tax is a destination based consumption tax and it is not applicable on export of services. Export of services would continue to remain tax free even after withdrawal of Notification No.6/99, dated 09/04/1999." In the light of this clarification issued by the Board, the assessee has a prima facie, case for waiver of pre-deposit of dues adjudged for the period 01/07/2003 to 19/11/2003.
From the period from 15/03/2005 onwards as per Export of Service Rules, 2005 that a taxable service shall be treated as ‘export of service' only if such service so ordered is delivered outside India and used in business outside India & in the instant case, the service of promotion of marketing of goods manufactured by the supplier has taken place in India and the said service is for the purpose promoting the business of the foreign manufacturer in India, thus the activity does not come within the scope of export of service during the period from 15/03/2005 to 18/04/2006.
From the period from 19/04/2006 to 28/03/2007 though the condition of receipt of payment in convertible foreign exchange is satisfied, the conditions relating to delivery of service outside India and the use of the service outside India are not satisfied because the promotional activity undertaken by the service provider is in India and it can be used only in promoting the business in India. Therefore, the use of service is not outside India. The same position will prevail during the period up to 30/05/2007. Even for the period from 01/06/2007 onwards, the condition relating to service be provided from India and used outside India is not satisfied. Therefore, the demand of service tax for the period 18/03/2005 to 05/12/2007 appears to be prima facie correct in law - as activities are rendered in India and their effective use and enjoyment are in India and therefore, the benefit of the services rendered also accrue in India and hence leviable to service tax.
The appellant failed to obtain service tax registration under business auxiliary service, failed to pay service tax and also failed to file statutory returns for the said services. They did not disclose to the department about the existence of the agreement with VIASYS and receipt of consideration towards the service rendered. These acts of the appellant clearly constitute suppression of facts on their part, thereby attracting the invocation of extended period of time for demand of service tax - not made out a case for complete waiver of the pre-deposit of the dues adjudged - direct the appellant to make a pre-deposit of Rs. 25 lakhs - partly in favour of assessee.
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2012 (8) TMI 606
Demand of service tax - services charges for technical know-how and technical assistance – Held that:- Question falls squarely within the exception carved out in Section 35G, ‘an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment’, and the High Court has no jurisdiction to adjudicate the said issue - appeal is rejected as not maintainable
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2012 (8) TMI 605
Whether the activities carried on by the assessee as Del Credere agents falls within the category of clearing and forwarding agent – Held that:- Question falls squarely within the exception carved out in Section 35G, ‘an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment’, and the High Court has no jurisdiction to adjudicate the said issue - appeal is rejected as not maintainable
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2012 (8) TMI 597
Demand of service tax - applicant is an STP unit engaged in the development of customized software which they are exporting - new set of agreements between the applicant and their subsidiary – Held that:- Applicant is paying Service tax under the category IT services with effect from 16-5-2008 and in view of exporting the product/services, they are receiving refund in terms of Rule 5 of the CENVAT credit rules - period prior to 18-4-2006 no Service tax liability will be attracted in respect of services received by the applicant - it is a case of revenue neutrality – waiver of pre-deposit allowed
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2012 (8) TMI 568
Waiver of pre-deposit - demand of Service Tax was confirmed on account of money transfer services - contention of assessee is that it is covered under export of services - Held that:- delivery in the instant case, is complete only when it is received by the recipient in India. Therefore, the service provided by the applicant would not be covered under export of services – applicant is directed to make a pre-deposit of 25% of demand
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