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Service Tax - Case Laws
Showing 21 to 40 of 121 Records
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2013 (1) TMI 634
Non-imposition of penalty u/s 76 - invoking section 80 - assessee had short paid the Service Tax before issuance of show cause notice along with interest - Held that:- The justification given by the assessee has been accepted by both the lower authorities that there is no intention to evade Service Tax liability.
Thus as decided in Kalamna Market Urben (2010 (7) TMI 200 - CESTAT, MUMBAI) and Singla Finance Services (2010 (6) TMI 136 - CESTAT, NEW DELHI) that if Service Tax liability is discharged before issuance of show cause notice, the provision of Section 80 can be brought into play and penalty can be waived - in favour of assessee.
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2013 (1) TMI 633
Stay petition - Waiver of pre-deposit - Cenvat credit of Service Tax paid by an outside agency, who conducts the repair and maintenance of the product manufactured by the appellant and supplied to their customers - Revenue argue that the documentary evidences provide in respect of only one or two contracts, wherein it was specifically indicated that the appellant has engaged a service provider for rendering the services on their behalf - Assessee contended that they will be able to produce the evidences in respect of all the contracts - Held that:- This issue needs reconsideration by the first appellate authority afresh, after following the principles of natural justice and allowing the appellant to adduce further evidences in support of their claim - Remand back to A.O.
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2013 (1) TMI 632
Denial of CENVAT Credit – Wrongly availed Cenvat credit - Cenvat credit of service Tax on CHA services - Input Service Rule 2(1) CCR, 2004 – Place of removal in case of export of goods – Revenue argue that once the goods are manufactured and cleared from the factory premises, the place of removal is a factory premises and not the port – Held that:- Following the decision in assessee’s own case Micro Inks Ltd. (2012 (6) TMI 122 - CESTAT, AHMEDABAD) on identical issue decides in favour of assessee. – In favour of assessee
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2013 (1) TMI 631
Condonation of Delay - Section 35B(3) of Central Excise Act, 1944 - Committee of Commissioners who had reviewed the order had a difference of opinion and the matter went to the jurisdictional Chief Commissioner - Held that:- Committee of Commissioners has taken more than three months to decide whether the appeal needs to be filed or not. No reason to condone the delay - Against revenue
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2013 (1) TMI 607
Cenvat Credit of Service Tax paid on GTA services - Outward freight - scope of 'input service' - Rule 2(1) of Cenvat Credit Rules, 2004 - period before 1.4.08 - held that:- When we hold that outward transportation would be an input service as covered in the expression 'means' part of the definition, it would be difficult to exclude such service on the basis of any interpretation that may be offered of the later portion of the definition which is couched in the expression ‘includes’.
The expression ‘includes’ cannot be used to oust any activity from the main body of the definition if it is otherwise covered by the expression ‘means’. In other words, the expression ‘includes’ followed by ‘means’ in any definition is generally understood to be expanding the definition of the term to make it exhaustive, but in no manner can the expression ‘includes’ be utilized to limit the scope of definition provided in the main body of the definition. To our mind this was also not the intention of the Legislature in the present case.
The outward transport service used by the manufactures for transportation of finished goods from the place of removal upto the premises of the purchaser is covered within the definition of “input service” provided in rule 2(l) of the Cenvat Credit Rules, 2004.
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2013 (1) TMI 605
Waiver of pre-deposit - Penalty u/s 78 - Intellectual Property Right - Activity of transfer of trade secret i.e. technology and information - Reverse charge - Held that:- The intellectual property right means any right to intangible property namely trade marks, designs, patents or any other similar intangible property under any law for the time being in force but does not include copyright. While framing the charge against the applicant, the adjudicating authority has not specified specifically under which part of the Intellectual Property Right applicable in India the applicant is covered. Therefore, prima facie the applicant has made out a case for waiver of pre-deposit. Stay granted
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2013 (1) TMI 604
Provisions of section 78 - Against an order of the Commissioner (A), the petitioner filed appeal before the Tribunal along with stay application seeking waiver of pre-deposit of the amount of service tax - Tribunal after hearing the parties, by the order directed the petitioner to deposit the entire amount of service tax, interest and penalty - Held that:- The Tribunal was not justified in directing the petitioner to deposit the entire amount of penalties in addition to the service tax and interest. This court is of the view that impugned order passed by the Tribunal deserves to be modified to the extent the petitioner has been directed to deposit the entire amount of the penalties u/s 76 and 78.
Tribunal's order of dismissing the appeal for non-compliance is hereby quashed and set aside. Order shall stand modified to the extent that instead of depositing the entire amount of penalties u/s 76 and 78, the petitioner shall deposit 25% of the penalty u/s 78.
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2013 (1) TMI 603
Waiver of Pre-deposit - Extended period of limitation - Bonafide belief - Business auxiliary services - Business support services - Assessee received credit notes in July and June 2004, for rendering the service of customer relationship services - Non-speaking order - Principles of natural justice
Held that:- The SCN was issued in the year 2009 for the credit notes and payment received by the appellant in 2004. Appellant has been consistently taking a plea before both the lower authorities that they were having a bonafide belief that these services would fall under business support services and not under business auxiliary services.
Adjudicating authority has not recorded any reasoning for rejecting the claim of the appellant as regards the limitation and the first appellate authority has not even recorded a single sentence on the question of limitation. Both the orders are non speaking orders, having not addressed the question of limitation before raised. Hence remand back to AO
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2013 (1) TMI 602
Waiver of pre-deposit - Stay of recovery - Management, Maintenance or Repair Service - Business Auxiliary Service - Power plant belonging to the appellant's subsidiary was being operated and maintained by the appellant under the agreement - Held that:- It appears that the transaction in question was on principal-to-principal basis and the appellant was required to operate and maintain the power plant of its subsidiary by using their own work force. Decision in case CMS (I) OPERATIONS & MAINTENANCE CO. P. LTD.(2007 (5) TMI 74 - CESTAT, CHENNAI) is in favour of assessee. Waive of pre-deposit and stay granted
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2013 (1) TMI 579
Denial of CENVAT Credit - Whether services of CHA availed for export of goods on FOB basis is an eligible ‘input service' as defined in Rule 2(l) of the CENVAT credit Rules, 2004 as these are performed/received outside the place of removal - Service tax paid on CHA services - Travel agency service - Export of goods - Penalty under rule 15 - Held that:- Yes, Following the decision in case of LEELA SCOTTISH LACE PVT LTD (2010 (1) TMI 1188 - CESTAT BANGALORE) that the CHA services have been availed in respect of export of goods and as per the terms of contract of export, it is an FOB basis - In favour of assessee
Travel agency services - CENVAT Credit availed for booking of tickets for travel of the employees for business purpose - Held that:- Following the decision in case of Ultratech Cement Ltd.,(2010 (10) TMI 13 - BOMBAY HIGH COURT) that any service which has a nexus with the business of manufacture comes within the scope of ‘input service' as defined in Rule 2(1) of the CENVAT credit Rules, 2004. The employees gone to abroad for purpose of export promotion, the same is integrally connected with the manufacturing activity of the appellant since export promotion is directly linked to the business of manufacture. In favour of assessee
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2013 (1) TMI 578
Waiver of pre-deposit - Stay Petition - Penalties u/s 77 - Renting out of immovable property - Co-owner of a property - Tenant issues different cheques to all the individuals as they are co-owners - Availing SSI exemption - Notification No. 08/2008-ST dated 01.03.2008 - Held that:- Notification talks about the aggregate value of the taxable services rendered, should be considered for the purpose of exemption and in this case if individually all the appellants be considered as provider of such service, their aggregate value does not exceed the threshold limit. Waive pre-deposit and Stay granted
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2013 (1) TMI 577
Waiver of Pre-deposit - Sponsorship Service - Applicant sponsored the cricket tournament of Indian Premier League(IPL) - Held that:- Following the decision in case of Kingfisher Airlines Ltd.(2012 (11) TMI 976 - CESTAT, MUMBAI)that pre-deposit has been waived on same ground. Sponsorship was a sports event and was exempted during the period of dispute. Waived the Pre-deposit and stay granted
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2013 (1) TMI 576
Refund - Unjust enrichment u/s 12B of Central Excise Act, 1944 - Section 73A - Refund claim for the amount paid by him mistakenly on the amount collected from non-members – Department contended that gross charges collected from the clients is inclusive of Service Tax which implies that certain portion of the gross amount is collected as representing Service Tax – Held that:- Following the decision in case of SUBAH ENGINEERS PVT. LTD. (2005 (3) TMI 499 - CESTAT, CHENNAI) that this matter is no longer res Integra and the Respondent is eligible for the refund claim and, therefore, we order that the refund amount should be paid to the Respondent forthwith. When there is no invoice raised or issued for collection of an amount as Service Tax, the question of depositing the same with the Government does not arise. In favour of assessee
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2013 (1) TMI 575
Service tax paid under protest - Refund of tax paid under protest - Whether the deposit of service tax was under protest or not - Appellant manufacturing country liquor for other – Business auxiliary services - Revenue demand Service Tax - Tax paid under protest – Subsequently there were decisions of various High Courts laying down that such activity is a manufacturing activity and will not attract Service Tax - Appellant claimed refund of service tax paid by them - Held that:- It has to be taken as if the payment for the past period was also under protest. This conclusion is further strengthened from para-5 of the above letter which uses the expression ‘paid under protest’. Admittedly the word ‘paid’ has to refer to service tax which is deposited by the appellant and the only deposit is for the period April, 2008 to June, 2008. As such it can be very clearly concluded that it was the entire deposit which was under protest and the said letter cannot be segregated into two different parts. Issue of limitation would not come into play. Order set aside – In favour of assessee
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2013 (1) TMI 550
Period of limitation - Presumption of service of Order - Delivery of the order - Receipt of order - Registered Post A.D.(RPAD) - Acknowledging the receipt of order - Evasion of duty - Assessee contended that dispatch of a document through Registered Post A.D. and purported service thereof by the postal authority with supporting document acknowledging the receipt, a presumption would arise of proper service of such document and such presumption would be rebuttable - Held that:- Entire issue is based on disputed questions of fact. Commissioner (Appeals) as well as the Tribunal held that the service of the order was complete. - Appeal dismissed.
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2013 (1) TMI 549
Writ Petition - Whether the CAG of India, has power and/or authority and/or jurisdiction to audit the accounts, service tax records or other documents of the petitioner company, which is not an undertaking of the Central Government or any State Government - Whether Rule 173(6)(c) of Central Excise Rules, 1944, which provides that Commissioner or the Comptroller and Auditor General of India would be entitled to undertake the audit of records of any assessee - The word “or” has to be read conjunctively or disjunctively in Rule 173(6)(c) - Special audit u/s 72A of the Finance Act 1994 – Ultra Virus of Rule 5A of the Service Tax Rules
Held that:- In view of Single member bench notice cannot be sustained and the same is liable to be set aside. But in view of judgment rendered in case of Berger Paints India Limited in the context of Rule 173-G(6)(c) which is in para materia with Rule 5A of the Service Tax Rules, this Court is of the view that judicial propriety demands that this writ application be referred to a Division Bench for adjudication - Referred to divisional bench
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2013 (1) TMI 548
Pre-deposit - Dismissal of appeal by Tribunal for non-compliance of condition of Pre-deposit - Opportunity of being heard - Commissioner (Appeals) order to deposit 10% of the total amount i.e. Rs. 4.5 lacs - Appellants could not deposit the amount, the Tribunal in the order dated 27.12.11 enhanced the pre-deposit requirement to Rs.10 lacs within six weeks time - Advocate who was representing the appellants before the Tribunal had expired on 28.7.2011 - The Tribunal's order insisting on certain pre-deposit was passed without any representation from the appellant - Held that:- The appellants deserve a chance to argue their appeals on merits. Tribunal, ought not to have enhanced the pre-deposit requirement to more than double the amount which the Commissioner has imposed. Place these appeals before the Commissioner (Appeals) for consideration on merit. Remand back to Commissioner
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2013 (1) TMI 547
Survey and Map Making Service - Rendered the said service to related firm – Assessee did not pay the service tax on the ground that the main contractor, namely, M/s Monarch Surveyors and Engineering Contractors Pvt. Ltd., have discharged the service tax liability on the value inclusive of the service charges received by the appellant - Held that:- Board on a number of occasions had clarified that if the main service provider is discharging service tax liability then the sub-contractors to the main service provider need not pay service tax on the same activity. Only after the extension of CENVAT credit scheme to the service tax sector, this position changed and the Board again clarified the matter vide Circular dated 23/08/2007. Therefore, it cannot be alleged that the sub-contractor was not discharging service tax liability deliberately with an intention to evade service tax.
That was the reason why the lower appellate authority has dropped the penalty proceedings against the appellant subject to their payment of service tax along with interest thereon by invoking the powers u/s 80. I do not find any infirmity in the lower appellate authority's order. In favour of assessee
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2013 (1) TMI 523
Service tax on the rental/license fee - Payable to Airports Authority of India (AAI) for space rented/licensed in the airport premises for housing of the duty free shop - Circular No. 80/10/2004-S.T., dated 17-9-2004 – Held that:- On the basis of the said circular had held that in so far as letting out of the part of Airport services is concerned, no service tax is payable as per the said circular and accordingly the demand for service tax was quashed till the period prior to 1st June, 2007
Period after 1st June, 2007 is concerned - The stand of the AAI also was that no service tax was payable - AAI had demanded service tax from the petitioners therein merely because the Service Tax Authorities had demanded the same from AAI – Held that:- Service tax is payable for the period from 1st June, 2007 onwards, the inter se dispute shall be resolved by arbitration.
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2013 (1) TMI 522
Service tax on Business Auxiliary Service - assessee is engaged in construction of highways - SPV formed as a result of agreement between NHAI or State Authority and the concessionaire under the BOT arrangement - Held that:- As per Board Circular no. 152/3/2012-ST dated 22/02/2012 an agreement between the State authority and the concessionaire for construction of roads, the contractor is authorised to collect the toll charges from the users of the roads for the services rendered and the entire activity is done on Build-Own/Operate-Transfer basis, there is no service tax liability.
Construction of roads has been specifically excluded from the scope of service tax levy both under "Commercial and Industrial Construction Service" and "Works Contract Service". Further repair and maintenance of roads have also been exempted from service tax retrospectively in this year's budget. Thus the intention of the Government is to keep out road construction activity from the purview of service tax. If that be so, how can service tax be levied on the very same activity under Business Auxiliary Service? - in favour of assessee.
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