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Service Tax - Case Laws
Showing 41 to 60 of 121 Records
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2013 (1) TMI 521
Refund claim u/r 5 of CCR 2004 r.w. Notification No. 5/06 CE(NT) dated 14/3/2006 - unutilized CENVAT credit taken on nine input services claimed to have been used for export of output services - rejection of refund claim recording a finding against nexus between the output services and the input services & in view of Circular No. 120/1/2010 dated 19/1/2010 issued by the Board - period in question April to June 2008 - Held that:- On the question whether a nexus was established by the party between maintenance or repair service (output service exported) and input services, the impugned order has offered no clear and intelligible finding, apart from an observation to the effect that the input services would qualify for availment of credit as per Board's Circular , this part of the appellate Commissioner's order cannot be sustained inasmuch as it is not a speaking order on the issue - the refund ordered by the Commissioner (Appeals) to the extent of the amount of unutilized CENVAT credit on input services claimed to have been used for export of consulting engineer's service requires to be set aside and it is ordered accordingly.
The impugned order was passed on 8/3/2010 when the Board's Circular was in force. This circular was not available to the original authority and hence that authority did not have occasion to follow the Board s guidelines. In the fitness of things, that authority should reexamine the question whether the refund claimant has been able to establish a nexus between consulting engineer s service (exported) and each of the input services. Needless to say that, in this regard, the Board s guidelines shall be followed.
Period July to September 2008 - Held that:- It is incumbent on the authority to meticulously consider the party's declaration and decide whether the facts declared by them are correct and whether these facts would go to establish a nexus between the output service and each of the input services which the appellate Commissioner has not done here. Mere observation to the effect that the findings of the original authority relating to input services for output services are not convincing is itself unconvincing. The impugned order does not disclose proper application of mind to the nexus issue. The appellate authority appears to have proceeded on the premise that the Board's Circular is the panacea for everything - set aside the aforesaid findings of the Commissioner (Appeals) & remand it to the original authority (which did not have occasion to consider the Board's circular) to reexamine the nexus issue.
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2013 (1) TMI 520
Goods Transport Agency services - interest and penalties levied on non discharging of service tax liability - Held that:- On perusal of the letter dated 16.01.2012, written by the Range Superintendent Gandhidham-II to the Dy. Commissioner, Service Tax Division, Rajkot, it is find, the said letter indicates that the claim made by the appellant was verified by the Superintendent along with returns and details and it indicates that service tax liability has been discharged by the appellant.
Thus this letter and the details submitted by the appellant regarding discharge of service tax liability needs to be considered and appreciated in its correct perspective by the adjudicating authority - remand the matter back to the adjudicating authority to reconsider the issue afresh.
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2013 (1) TMI 519
Wrongly availed CENVAT credit - Maintenance or repair services - Erection, commissioning and installation service - Rule 2 (C) of CCR 2002 - Rule 4(1) of CCR 2002 - Credit availed for input services of travel agent, custom house agent, tour operation, telephone, insurance, courier, testing services - Revenue argued that Services, for which service tax credit availed and utilised, have not been utilised in relation to rendering the output services
Held that:- The services are mainly in relation to water treatment plants manufactured by them. Custom house agent service was obtained in relation to importation of components/equipments for manufacture of water treatment plants. Since the appellants are engaged in manufacture of water treatment plants and installation, erection thereof, the service obtained in relation to parts and equipments can be said to be in relation to output service also. After all without importing parts and equipments neither manufacture nor erection or installation would be possible. Similarly in telephone service and surface area, sample testing area services, advertisement charges also can be definitely considered as utilised in relation to providing the output service
The words used are "in relation to rendering of output service". Therefore what is required to be seen is whether the services have been used directly or indirectly in relation to the output service. Under these circumstances, CENVAT credit has been used correctly and appeal has to be allowed. In favour of assessee
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2013 (1) TMI 493
Cenvat credit on ineligible input services - demand for interest and penalty equal to the amount demanded - Held that:- In this case the appellant did not contest the view taken by the Revenue that credit was inadmissible and therefore the amount already reversed by them cannot be refunded when the matter has attained finality. At the same time credit itself does not become inadmissible just because the appellant has reversed the credit. Therefore penalty is set-aside.
Assessee even though presented very detailed argument as to why the interest is not payable when the credit itself was not utilized, it was proposed that instead of going into discussion of several cases and decisions to consider the issue, since the amount is very small, the appellant may not contest the issue. The ld. Advocate agreed. Thus the demand for interest is upheld.
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2013 (1) TMI 492
Entitlement to adjust the excess payment of tax - pre deposit demanded - Held that:- As there is no evidence to show that the appellant had worked out invoice-wise amount received and tax paid month-wise to show that indeed there was excess payment, instead of submitting summary statement no adjustment is warranted.
As appellant had deposited Rs.3,70,000/- on 18/06/2010 which is much more than the confirmed demand in other matters which are pending decision this is a fit case for waiver of pre-deposit.
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2013 (1) TMI 491
Waiver of pre-deposit - Stay of recovery - Construction Services - Commercial or Industrial Construction Services - Site Installation Services - Site installation for ATMs – Held that:- These activities were covered by the definitions of "Construction Service" (up to 15.6.2005) and "Commercial or Industrial Construction Service" (from 16.6.2005) and, therefore, the appellant is liable to pay service tax. Having prima facie found no merit in the plea of limitation, they are liable to pay the entire demand of service tax. Considering the plea of abatement that the demand of service tax, if at all sustainable, should be restricted to an amount calculated at 33% of the gross amount received from the Bank. Therefore, direct the appellant to pre-deposit this amount of Rs.1.25 Crores. In favour of revenue
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2013 (1) TMI 490
Waiver of pre-deposit - Stay of recovery - Gross value as cum-tax value - Construction of Complex Services - Abatement - Demand relating to the activities on semi-finished residential flats - Finishing works such as flooring, painting, commissioning of lifts and other petty works incidental to the completion of the residential flats - Assessee contended that cost of materials used in the above activities should be abated from the gross amount collected from the flat owners to arrive at the taxable value - Held that:- The appellant has not produced even a sample copy of any of the agreements and, therefore, we are constrained to decipher their activities from the text of the impugned order. Prima facie, these activities were covered by the definition of 'Construction of Complex Services' and therefore the appellant was liable to pay service tax, which they did not pay. Their plea for treating the gross value as cum-tax value was prima facie liable to be considered by the revisionary authority. The present application does not contain any plea of financial hardships. Direct the appellant to pre-deposit an amount of Rs. 5 lakhs and waive the balance amount.
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2013 (1) TMI 489
Refund of service tax paid on CHA services in respect of the exports - Clearing House Agent - AO argue that it includes services like demurrage charges - documentation charges - detention charges - which should not have formed part of the CHA service and, therefore, the appellant is not entitled for the credit - Held that:- Following the decision in case of Anant Commodities (P.) Ltd.(2009 (10) TMI 229 - CESTAT, NEW DELHI) that CENVAT Credit cannot be denied to the receiver of duty-paid inputs by the Central Excise authorities having jurisdiction over the input receiver by revising the assessment of duty at supplier's end. In favour of assessee
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2013 (1) TMI 464
Works Contract Service - Section 65(105)(zzzza)- Whether Rule 3(3) of the Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 will apply to a situation where an assessee is wanting to switch over to a new scheme - business of supply and installation of electrical transmission towers - Erection and Commissioning - Section 65(105)(zzd) - Revenue argued that new scheme applicable only in respect of a new contract commencing after 1.6.2007 and for old contract for which they were paying service tax under "Erectioning and Commissioning", they cannot avail the benefit of the new scheme - Held that:- It would appear that Rule 3(3) of the said Rules prohibits switching from works contract scheme to the other applicable entries during the currency of the contract. Following the decision in case of ABB Ltd. (2010 (12) TMI 147 - CESTAT, BANGALORE) to the effect that prior to 1.6.2007 no service tax was payable on such contracts. Keeping these aspects in view, we grant waiver of predeposit of dues. In favour of assessee
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2013 (1) TMI 463
Waiver of pre-deposit - Cargo handling services - Business Auxiliary Service - Assessee have engaged their counterparts in the foreign countries for getting the goods lifted from the suppliers' premises, undertaking consolidation and dispatching the goods to India - Raised bills on the importers under different heads like airfreight charges, AC charges, collect fee, AC delivery/courier/break bulk charges, AC-CAF charges, AC-Delivery order charges - Amount collected from the importers as airfreight charges which were in excess of the actual freight charges - Held that:- The submissions on behalf of the assessee that the differential amount is a profit made in freight appears, prima facie, not acceptable. They have not rebutted the finding of fact that they have acted as console agents. Therefore, the appellants have not made out a prima facie case for total waiver.
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2013 (1) TMI 462
Waiver of pre-deposit - Stay of recovery - Banking and Other Financial Services - CENVAT Credit denied - Invoices did not indicate registration number of the service provider - Invoices were addressed to the Mumbai Head Office which did not have input service distributor registration - Held that:- It is not in dispute that BOFS covered by the invoices raised on the appellant's Head Office was actually used by the appellant in the manufacture and clearance of their final products. The tax-paid nature of BOFS is also not in dispute. The department has no case that any part of BOFS covered by any given invoice was diverted by the Head Office. Prima facie, the entire quantum of BOFS covered by each invoice in question was used by the appellant. On these facts, the substantive benefit of CENVAT credit is prima facie admissible to the appellant. Waiver of pre-deposit and stay of recovery allowed
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2013 (1) TMI 461
Dispatch of Order under section 37C - Whether dispatch by speed post would suffice the purpose of dispatch by registered post with acknowledgment due - The order-in-original served on the assessee as early as in September, 2008 - Copy of the order-in-original was received by the assessee on 6/1/2010 - Appeal against that order was filed with the Commissioner (Appeals) on 5/2/2010 - Waiver of Pre-deposit – Delay in filling of appeal – Held that:- This question was answered in the affirmative, but this can hardly come to support the department's case before us inasmuch as the question which we have already answered in favour of the appellant is whether speed post would serve the purpose of registered post with acknowledgment due. This question has no parallel with the question concerned in the income tax case.
Remand this case to the Commissioner (Appeals) with a request to consider the assessee's appeal filed against the order-in-original to have been filed within time and then to proceed to dispose it of on merits in accordance with law and the principles of natural justice. Appeal allowed and remands back to decide the case on basis of merits. In favour of assessee
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2013 (1) TMI 460
Utilisation of Cenvat credit for payment under Reverse charge - Whether Cenvat credit can be utilized for discharge of Service Tax liability in respect of overseas commission agent - Reverse charge u/s 68(2) on import of service - Rule 2(1)(d)(iv) - Rule 3(4)(e) of Cenvat Credit Rules, 2004 - Rule 2(p) of Cenvat Credit Rules – Rule 2(r) of Cenvat Credit Rules - Assessee engaged in manufacturer of acrylic fibre, acrylic top etc. - from April, 2007 to September 2008 - Held that:- Following the decision in case of M/s. Shree Rajasthan Syntex Ltd.(2011 (8) TMI 265 - CESTAT, NEW DELHI) that it is not in dispute that as recipient of service from GTA, the appellant is liable to pay service tax by virtue of notification u/s 68(2). If the appellant is the person liable to pay service tax, he would be deemed to be provider of taxable service by fiction of law and, therefore, the service provided by him will be deemed to be output service under Rule 2(p) of the Rules.
Therefore, the appellant is entitled to utilise the Cenvat credit for discharge of Service Tax for the commission paid to the overseas agents. In favour of assessee
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2013 (1) TMI 435
Short payment of service tax on Erection, Installation and Commissioning Services - claim of the assessee that they have already paid service tax and produced some records before the first appellate authority - Held that:- The factual matrix as to whether the assessee has discharged the service tax liability on the entire gross value of the amount received by them for the services rendered, needs to be factually verified, which, is better to left to the adjudicating authority.
Thus without expressing any opinion on the merits of the case, the matter back remanded back to the adjudicating authority to reconsider the issue afresh and come to a conclusion after following the principles of natural justice.
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2013 (1) TMI 434
Service tax rate - chargeable @ 5% or @8% - services provided prior to 14.05.2003 in respect of which payments were received on or after 14.05.2003 - Held that:- In the present case, the relevant period is April, 2003 to September, 2003 therefore, none of the above provisions of Rule 5B of the Service Tax Rules, 1994 will apply as same came into effect on 01.04.2011. Moreover, even Rule 4(a)(i) of the Point of Taxation Rules 2011 is not applicable because those Rules came into effect on 01.03.2011.
The taxable event as per the Finance Act, 1994 is the providing of the taxable service. In the present case, as found that not only were the services admittedly provided prior of 14.05.2003 but also the bills have been raised prior to 14.05.2003. The only thing that happened after 14.05.2003 was that the payments were received after that date. That, would not change the date on which the taxable event had taken place. Since the taxable event in the present case took place prior to 14.05.2003, the rate of tax applicable prior to that date would be the one that would apply, thus the rate of 5% and not the rate of 8%.
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2013 (1) TMI 433
Service tax paid on GTA services and the export commission services on reverse charge basis refund claim of the same under Notification No.41/2007-ST, dtd. 06.10.07 - claim rejected on being filed after a period of expiry of 60 days from the end of the relevant quarter - Held that:- Admittedly the present case relates to refund of duty paid on the excisable materials used in the manufacture of goods ultimately exported, the date on which the ship or aircraft has left India is the relevant date, in terms of sub-section B(a)(i) of section 11B. The appellant's contention that in terms of sub-section (f), the date of payment of duty would be relevant, cannot be accepted in as much as the said sub-section is residuary provision as is clear from the use of expression in any other case. As the specific date stands provided in respect of goods exported, the same has to be adopted for the purpose of limitation. It is not the appellant's plea that the goods were exported on a later date and the refund claims were filed within the period of 60 days from the quarter during which the said exports were made, no infirmity in the views adopted by the authorities below - Accordingly, the impugned orders are upheld.
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2013 (1) TMI 432
Service Tax on GTA services - assessee contested against availing of any services of GTA - Held that:- Undisputedly during the period from 01.01.2006 to 31.03.2008, the appellant had availed the services of transporters for transporting their goods from the factory and also bringing the raw materials into their factory who were owners of the vehicles as supported by producing the payment vouchers made to individual truck owners. From the said documents it is clear that they had not availed the services of goods transport agency(GTA) during the said period. See Bellary Iron & Ores Pvt.Ltd. vs. Commr. of C.Ex., Belgaum [2009 (12) TMI 150 - CESTAT, BANGALORE] - in favour of assessee.
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2013 (1) TMI 431
Rent-a-Cab service - penalties u/s.76, 77 & 78 - Held that:- Appellant is a proprietary firm and circumstances are similar to that of Bharat Travels Co. [2010 (7) TMI 203 - CESTAT, AHMEDABAD] where also tax which was not due was collected and not paid, and appellant did discharge the liability to service tax with interest as soon as the same was pointed out, therfore a lenient view can be taken in this case and benefit of Sec.80 can be extended to waive penalty U/s.76 & 77.
In the result, penalties under Sec.76 & 78 are waived and penalty under Sec.77 is upheld. The amount of service tax with interest paid to the department and appropriated is also upheld.
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2013 (1) TMI 406
Man power Recruitment and Supply Agency Service - seeking waiver of pre deposit - Held that:- As per the definition Manpower Recruitment and Supply means any person engaged in providing any service directly or indirectly of recruitment and supply of manpower.
In the present case, the applicant along with other labourers entered into a contract for cutting and supply of sugar cane. There is no evidence that the applicant provided any service directly or indirectly for recruitment and supply of manpower. In view of this pre-deposit of the dues are waived and recovery stayed.
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2013 (1) TMI 405
Manpower recruitment and supply agency services - seeking waiver of pre-deposit, interest and penalty - Held that:- As the applicant are deputing their employees to the other associate companies of UTI therefore has made out a strong case in their favour in view of the stay order passed by the Tribunal in the case of ITC [2012 (7) TMI 744 - CESTAT, NEW DELHI] therefore, pre-deposit of the dues are waived and recovery, thereof, stayed during the pendency of the appeal.
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