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Service Tax - Case Laws
Showing 1 to 20 of 121 Records
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2013 (1) TMI 969
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... ... ..... at they have discharged the service tax liability correctly. The appellant is directed to cooperate with the department and produce all the documentary evidences by way of sales invoices, contracts/ agreements entered into with the clients and other necessary documents, and payment of service tax made in respect of the services rendered by them etc. The learned counsel has sought two months time for a compilation of all the documents and submission of the same before the adjudicating authority. 5. Accordingly, we direct the appellant to appear before the adjudicating authority on or before 31/03/2013 and submit all the documentary evidences mentioned above in support of their claim and thereafter, the adjudicating authority shall decide the matter in accordance with law after giving a reasonable opportunity to the appellant to make their submissions. 6. Thus the appeal is allowed by way of remand. The stay application is also disposed of. (Operative part Pronounced in Court)
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2013 (1) TMI 904
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... ... ..... dged, I take up the appeal itself for disposal. 7. In this matter the show cause notice alleges that the appellant has taken credit for providing the output service of renting of immovable property therefore, they are not entitled for input service credit. In fact, the appellant is engaged in the business of renting out immovable property service. Therefore, as per Rule 2(l) of Cenvat Credit Rules, 2004, the appellant is entitled for input service credit. The other objection raised by the learned AR that proper documents were not filed by the appellant. Therefore the matter is required to be remanded to the adjudicating authority for examination of the documents on which the credit was taken by the appellant. Accordingly, I remand the matter to the adjudicating authority for verification of the documents on which the appellant has taken the credit. 8. Appeal is allowed by way of remand. The stay application is also disposed of in the above term. (Dictated in Court)
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2013 (1) TMI 903
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... ... ..... y to pay Service Tax under Section 66A of Finance Act, 1994 under Reverse Charge Mechanism does not arise and accordingly, granted relief, either interim or finally. 5.2 In any case, as contended by the appellant, even on the discharge of Service Tax liability under Reverse Charge Mechanism, they would be eligible for availing input service credit on such taxes paid under the Cenvat Credit Rules, 2004. Thus, the situation would be revenue neutral. In the similar case involving a revenue neutral situation, this Tribunal in the case of Reliance Industries Ltd. (supra) waived the requirement of pre-deposit and granted stay. In the light of these decisions, we are prima facie of the view that the appellant is not liable to pay Service Tax in respect of services rendered abroad. 6. Accordingly, we grant unconditional waiver of pre-deposit of the dues adjudged against the appellant and stay recovery thereof during pendency of the appeal. (Pronounced in Court on 7-1-2013)
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2013 (1) TMI 887
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... ... ..... ) of the Finance Act, 2012 passed by the Parliament, it has been provided that no Service Tax shall be levied or collected in respect of management or repair of roads, during the period on and from the 16th day of June, 2005 to the 26th day of July, 2009, both days inclusive, and refund shall be made of all such Service Tax which has been collected but would not have been so collected had the sub-section (1) been in force, at all material times. 5. The present case relates to the period between 16-6-2005 to 26-7-2009. In view of provision of Section 97(1) of the Finance Act, 2012, the petitioner is not liable to pay any Service Tax on the management and maintenance or repair of roads between 16-6-2005 to 26-7-2009, both dates inclusive and if any Service Tax had been collected it would be refunded. 6. The writ petition is, therefore, disposed of with the aforesaid terms. The respondents shall pass suitable order amending/withdrawing/modifying the show cause notice.
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2013 (1) TMI 842
Application for speaking to minutes - interim order - interim order in terms of paragraph 8 (C) is granted - the present application for speaking to minutes is allowed.
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2013 (1) TMI 817
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... ... ..... leviable on Construction of Residential Complexes for the Tamil Nadu Police Housing Corporation. Prima facie, we held against the levy of service tax and granted waiver and stay in the cited case. It is not in dispute that the facts of the present case are similar to those considered in the above stay order. Hence, there will be waiver and stay as prayed for in these appeals. (Dictated and pronounced in open court)
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2013 (1) TMI 787
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... ... ..... mmissioners order dt. 31/12/2010 itself was accompanied by a preamble which advised the appellant to appeal to this Tribunal within 3 months, if aggrieved. The provisions of Section 86(3) of the Act coupled with the advisory preamble to the impugned order were enough to make it incumbent on the appellant to file the appeal within the statutory period of limitation. (d) A reading of Section 84 of the Act would make it clear that any proceedings under that provision of law could have been resumed even while an appeal against the impugned order was pending. Section 74 takes care of the effect of any amendment to the impugned order so as to obviate prejudice to the aggrieved party. Therefore, the proceedings under Section 74 cannot be a plank for the appellant vis- -vis the heavy delay of the captioned appeal. 6. In the result, the delay of around 225 days remains unexplained and the COD application stands dismissed. Consequently, the appeal also stands dismissed as time-barred.
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2013 (1) TMI 760
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... ... ..... case of Future Focus Infotech India (P) Ltd. Vs Commissioner of Service Tax, Chennai reported in 2010 (18) S.T.R. 308 (Tri.-Chennai). 5. We find that the applicant has failed to produce any evidence in support of their contention that they have supplied any software to M/s. ITL.The billing is done on the basis of manpower made available to M/s. ITL. Such manpower work under supervision of employees of M/s. ITL. Prima facie, it is case of supply of manpower. Hence, the applicant failed to make out a prima facie case for waiver of pre-deposit of entire amount of duty, tax and penalty. 6. Accordingly, the applicant is directed to pre-deposit a sum of ₹ 3 lakhs (Rupees Three Lakhs only) within a period of six weeks. Subject to the deposit of this amount, pre-deposit of the balance amount of tax, penalty and interest shall remain waived and recovery thereof stayed during the pendency of the appeal. To report compliance on 26.02.2013. (Dictated and pronounced in open court)
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2013 (1) TMI 754
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... ... ..... ections (1) and (2) of the Finance Act, 2012 passed by the Parliament, it has been provided that no Service Tax shall be levied or collected in respect of management or repair of roads, during the period on and from the 16th day of June,2005 to the 26th day of July,2009, both days inclusive. and refund shall be made of all such service tax which has been collected but would not have been so collected had the sub section (1) been in force, at all material times. The present case relates to the period between 16.6.2005 to 26.7.2009. In view of provision of Section 97 (1) of the Finance Act,2012, the petitioner is not liable to pay any service tax on the management and maintenance or repair of roads between 16.6.2005 to 26.7.2009, both dates inclusive and if any service tax had been collected it would be refunded. The writ petition is, therefore, disposed of with the aforesaid terms. The respondents shall pass suitable order amending/withdrawing/modifying the show cause notice.
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2013 (1) TMI 740
Clearing and Forwarding Agent Service - Held that:- Impugned demand of service tax is on these expenses, which were incurred by the appellant, while rendering CFA service. The learned consultant for the appellant has referred to Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 and has submitted that this provision has been struck down by the Hon'ble High Court vide Intercontinental Consultants and Technocrats Pvt. Ltd. Vs Union of India and Another reported in [2012 (12) TMI 150 - DELHI HIGH COURT] - we grant waiver of pre-deposit and stay of recovery in the wake of the relevant rule having been struck down by the Hon'ble Delhi High Court. Prima facie, therefore, the reimbursable expenses were not liable to be included in the taxable value for payment of service tax on CFA service. Accordingly, there will be waiver of pre-deposit and stay of recovery in respect of the adjudged dues - Stay granted.
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2013 (1) TMI 686
Valuation Short payment of Service tax Penalty u/s 78, u/s 76, u/s 77 - Misstatement - Suppression of facts - Intent to evade payment of duty - Commercial training or coaching centre Exclusion of the value of materials sold from the value of the taxable services - Notification No. 12/2003-ST dated 20.6.2003 - Circular No. 59/8/2003-ST dated 20.6.2003 Two types of bills were being issued one for training and coaching classes run by assessee and the other as a consideration for providing study material to the students by another firm which is run by assessees wife in same premises Entire receipts are being divided into two parts
Whether M/s Soni Patrachar was independently selling the books to their students or whether the same was created on paper and the total consideration received for providing coaching services by M/s Soni Classes was being artificially bifurcated, so as to avoid payment of service tax
Held that:- The bills was not able to produce any literature issued to the public or the invoices issued for enrolling the candidates. There is no material on record to show that M/s Soni Patrachar was an independent proprietary firm. On the other hand, a lot of evidence appears on record to reflect upon one fact that though the value of coaching classes being provided by M/s Soni Classes to their students was collected as such, the same was being projected under two different categories.
Providing study materials, test papers etc. is a part of coaching services and is required to be included in the value. At the cost of repetition it may be observed that it is only the extra text books or extra material, which is admittedly being sold to the students and is also available for sale to outsiders and students or procured from the outside and sold to the candidates, which will not form part of the taxable coaching services
The appellant was aware of the fact that it is the entire consideration for the coaching services which has to be taxed. It was only with a mala fide view to save the service tax that he bifurcated the consideration into two different parts and indulged in diverting a part of the consideration to the sale of the study material In favour of revenue
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2013 (1) TMI 685
Recovery proceedings against a deceased assessee Whether SCN issued against non-existent firm is valid in law - Death of sole proprietorship - Cancellation of Excise registration Wrongly availed Cenvat credit in respect of the inputs not received in the factory Held that:- Sole proprietorship concerned has no legal entity independent of its proprietor. On death of sole proprietor respondent company ceased to exist. Therefore notice issued was bad in law as it was issued against any non-existent firm. In favour of assessee
Recovery from legal heir - legal heir of the deceased sole proprietor had undertaken to pay all the pending central excise liability of the firm Held that:- As the SCN raising demand was issued almost three years after the undertaking on 2.4.2009. This imply that the dispute pertaining to the demand in question was raised much after the undertaking as such the demand which is subject matter of the SCN cannot be termed as pending as covered by the undertaking given by the legal heir. Therefore, demand confirmed on the basis of aforesaid SCN cannot be sustained. In favour of assessee
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2013 (1) TMI 684
Denial of refund claim Relevant date for refund claim - Period of limitation Unjust enrichment Duty paid under protest - Section 11B of the Central Excise Act, 1944 - Hire purchase finance Assessee pay duty under protest - Dispute of liability of service tax have been settled by the Commissioner (Appeals) vide his order dated 27.8.2010 in favour of assessee - Refund claim filled on 22.9.2010 Department argue that appellants were required to file refund claim within one year from the date of tax paid
Held that:- As per the provision of Section 11B of the Central Excise Act, 1944, refund claim has to be filed within one year from the relevant date. Section 11B provides that if the duty is paid under protest, then the date relevant to be the date when the dispute is settled. Therefore, relevant date is 27.8.2010 and the appellant has filed the refund claim within one year from the relevant date. Therefore, it is held that refund claim is within time In favour of assessee
Unjust enrichment Amount of service tax in interest - Amount of finance is added by interest and divided by the period thereafter the installment comes Held that:- Service tax element is nowhere mentioned in the instalment, the same has been confirmed by the C.A after verifying the records. Although the appellant paid the service tax to the department by calculating the instalment as cum-service tax, but it does mean that they have collected / included the service tax amount in their instalment. They have also explained that the instalment is only principal plus interest divided by period In favour of assessee
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2013 (1) TMI 683
Penalty u/s 76 - u/s 78 - Activity of technical testing of the LPG tankers - Technical Testing and Certification Services - Rule 18 and Rule 44 of the Explosives Act - Held that:- Following the decision in case of Harshita Handling (2010 (4) TMI 122 - CESTAT, NEW DELHI) that technical inspection and testing under the Indian Explosive Act, 1884 is a statutory obligation, therefore the same is not liable to service tax and therefore penalties under Sections 76 and 78 of the finance Act, 1994 are not warranted - In favour of assessee
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2013 (1) TMI 682
Penalty u/s 77 and 78 - Service Tax collected but not deposit - Business Auxiliary Services - Renting of cranes to their clients - After certain period of time, the respondent paid the service tax along with interest - Assessee files ST -3 Return - Held that:- The respondent has filed the ST -3 Return showing the service tax collected but not deposited. Therefore, as per provision of Section 73 (3) of the Finance Act, 1994 when the assessee has paid the service tax along with interest of their own and intimated to the department, therefore Show Cause Notice is not warranted - In favour of assessee
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2013 (1) TMI 661
Waiver of penalty - Stay of recovery - Denial of Cenvat credit - Rule 2 (1) of the Cenvat Credit Rules 2004 - Rent-a-cab service - Out-door catering service - Event Management service - Clearing and Forwarding service
Held that:- Rent-a-cab service has been availed for picking up and dropping their employees and outdoor catering service provided to the employee of applicants are allowed to take cenvat credit on the basis of decision in case of Stanzen Toyotetsu India (P.) Ltd.(2011 (4) TMI 201 - KARNATAKA HIGH COURT). Therefore, they are entitled to take input CENVAT credit. In favour of assessee
Event management service and clearing & forwarding service - These services does not fall within the category of input credit service as defined in Rule 2 (1) of the Cenvat Credit Rules 2004. Therefore, prima facie, the applicants are not entitled for the benefit of input service credit.
As the Applicant has already reversed the said amount, we waive the requirement of pre-deposit of the balance amount of service tax, interest and penalty. In favour of assessee
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2013 (1) TMI 660
Waiver of demand Stat petition - Air Transport of Passenger service - Management, Maintenance or Repair service - Supply of tangible goods services - Assessee is providing chartered flights to various organizations Held that:- The service is provided to various companies, who chartered the air craft for specific time or for specific journey. The payment is not based on number of passengers and the appellant is not concerned with travelling also. No tickets are issued to the passengers and no charges are collected from the passengers. Therefore, the service provided cannot be considered as transport of passengers, but has to be considered as charter of air craft.
In the present system of taxation, the assessee himself classifies the service, quantifies the Service Tax liability and pays the same. There is no concept of assessment on a regular basis or acceptance of details in the returns as correct officially by the Department and therefore the claim of subsequent assessment have been accepted cannot be accepted unless documentary evidence is produced to show that the Department has accepted the assessment made by the assessee and has agreed that the classification of the service is not under SOTG service. No conclusive documentary evidence was produced for this purpose - pre deposit ordered partly.
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2013 (1) TMI 659
Non-compliance of Stay order - Neither is there any compliance report on record nor is there any representation on behalf of the assessee - Held that:- Therefore appeal decides in favour of revenue
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2013 (1) TMI 658
Demand - Consulting Engineering Service - Assessee a 100% EOU Division transfer the technical know-how - Appellants have never provided any service and no consideration for the service have been received - Appellants made a debit entry for the services to be provided in future - Held that:- As neither there is service provided nor any consideration have been received. Moreover, supply of technical know-how cannot be taxed under "Consulting Engineering Service", therefore, the impugned orders are set side. In favour of assessee
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2013 (1) TMI 635
Refund under Notification No.41/2007-ST, dt.06.10.2007 - CENVAT Credit of Service Tax paid by the transport agency for transporting empty containers from Inland Container Depot or airport to the factory of the respondent - Held that:- This issue stands settled by the decision in the case of Choice Sanitaryware Industries Vs CCE Bhavnagar (2009 (2) TMI 116 - CESTAT AHMEDABAD) wherein it was held that the appellant is entitled to avail CENVAT Credit of Service Tax paid on goods transport agency service received by them for bringing the empty containers in the factory premises as also the Service Tax paid on handling/agency charges in respect of services enjoyed at the port of export. Reference was also made in the case of CCE Rajkot Vs Rolex Rings Pvt. Ltd. (2008 (2) TMI 770 - CESTAT, AHMEDABAD) and CCE Rajkot Vs Adani Pharmachem Pvt. Ltd. [2008 (7) TMI 102 - CESTAT AHMEDABAD).
Thus appellants are entitled for refund of the Service Tax paid on goods transport agency service received by them for bringing the empty containers in the factory premises - in favour of assessee.
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