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Service Tax - Case Laws
Showing 81 to 100 of 121 Records
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2013 (1) TMI 271
Waiver of Pre-deposit - Stay of recovery - Construction of Complex Services - Appellant constructed houses for low-income groups of people under two schemes of Andhra Pradesh State Housing Corporation Ltd. - whether service tax is applicable to construction of such houses for the benefit of low-income group of people - the residential units were constructed as two-storeyed blocks, each consisting of less than 12 units - Held that:- The leviability of service tax under the above Head on construction of Residential complex cannot depend on economic status of the ultimate beneficiaries/residents. Following the decision in case of MACRO MARVEL PROJECTS LTD.(2008 (9) TMI 80 - CESTAT, CHENNAI) a residential complex comprising more than 12 dwelling units would attract service tax under the aforesaid Head but individual residential units could not be considered as residential complex hence its construction would not attract the levy. Grant waiver of pre-deposit and stay of recovery.
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2013 (1) TMI 270
Penalty u/s 76 - Business auxiliary services - Delay in deposit of service tax - Bills for the services rendered during the period April, 2006 to December, 2006 raised in December, 2006 - The cheque for the same was received on 4.1.2007 - Deposited in the bank account on 5.2.2007 - The Service Tax was to be paid by 5.3.07 - Held that:- Since cheque was received on 4.1.2007, the same was actually deposited in the bank on 5.2.2007 and must have been encashed on a date after that. As such, it is to be considered as if the consideration for the services was received by the appellant in the month of February itself, thus requiring them to deposit the tax with the department in March, 2007. No delay in depositing the service tax. No imposition of penalty. In favour of assessee
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2013 (1) TMI 269
Stay petition - Extended period of limitation - Real Estate Service - The sum of Rs.8 crores was given to Shri Benny Joseph and the said amount was meant to meet the expenses for settlement of labour - Held that:- The activities undertaken by the appellant, as per the agreement, prima facie, fall under the category of "Real Estate Services". However, the claim of the Department that the amount of Rs.8 crores paid into the account of Shri Benny Joseph should also be treated as service charges received by the appellant, prima facie, is not acceptable. Therefore, if Rs.4.88 crores is taken as the service charges received by the appellant, the tax liability comes to around Rs.49 lakhs only.
They ought to have taken registration and filed half yearly returns for the period April to September by 25th of October, 2005 and the notice has been issued on 06/10/2010 which is within 5 years from the relevant date, prima facie, extended time limit is invocable. Appellant has claimed that he has already deposited a sum of Rs.27.85 lakhs. There shall be waiver of pre-deposit of balance of dues
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2013 (1) TMI 268
Waiver of pre-deposit - Stay of recovery - Real Estate Agency Service - Section 65 (88) Modus operandi - Assessee was a partnership firm in relation to real estate business - Assessee executed agreements with prospective sellers of property - Obtained General Power of Attorney (GPA) from the prospective sellers - the properties of the aforesaid sellers sold to M/s Sahara India Commercial Corporation - The amount so received as sale consideration in each transaction was higher than the amount shown in the corresponding purchase agreement Assessee contended that its trading activity inasmuch as the appellants were purchasing and selling immovable properties Held that:- The modus operandi of the appellants, which we have briefly stated herein before, is crystal clear. They suppressed the relevant facts before the department. Therefore, we are in agreement with the findings recorded by the adjudicating authority on the limitation issue also. We have gone through the facts of the case covered by stay order No. 1280/2011 and have found the same to be distinguishable vis-a-vis the facts of the present case. There is no plea of financial hardships in the stay application. Waiver denied. In favour of revenue
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2013 (1) TMI 245
Construction in respect of commercial or industrial building and civil structure services - appellants filed Six 'nil' returns in ST-3 form for the period September, 2005 to March, 2008 on 18/11/2008 - late fees on belated returns - Held that:- As the appellant were registered with the Service Tax Department for providing taxable services & during the period April 2005 to March, 2008 have not provided any service and also they have not filed any returns with the Department filling six ST-3 nil Returns belatedly on 18/11/2008.
In view of the circular dated 23/8/2007 in the event no service is rendered by the service provider, there is no requirement to file ST-3 Return. Besides as per Rule 7C of the Service Tax Rule, in the event 'nil' returns are filed, the assessing officer had the discretion to waive the late fees for filing the ST-3 Returns. Thus it is a fit case to invoke the proviso to Rule 7C and waive the late fees relating to the Nil Returns filed during the period April, 2005 to March, 2008 - the appeals filed by the Appellants are hereby allowed.
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2013 (1) TMI 244
Goods transport operator services - period 16.07.97 to 02.06.98 as per the retrospective amendment to the Finance Act, 1994 - Held that:- FAA held in favour of the assessee by relying upon the judgment in the case of Welspun Gujarat Stahl Rohren Ltd. (2010 (3) TMI 583 - GUJARAT HIGH COURT) and also in the case of Eimco Elecon Ltd. (2010 (7) TMI 477 - GUJARAT HIGH COURT).
As in the appellant's own case, Division Bench of the Tribunal, Delhi has held in their favour holding that a show cause notice issued prior to retrospective amendment can be adjudicated while any show cause notice issued after amendment is hit by the limitation - same issue in the assessee's own case is decided in their favour by the Division Bench of the Tribunal, the impugned order passed by the first appellate authority is correct, legal and does not suffer any infirmity. The appeal filed by the Revenue is devoid of merits and hence is rejected.
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2013 (1) TMI 243
Interest on delayed refunds - Held that:- Notification No 4l/07-ST dated 06.10.07 itself provides clearly that the relevant date for determination of limitation is the date on which proper officer of Customs makes an order permitting clearance and loading of the goods for exportation. Therefore the finding that the claim is time barred because it is filed beyond the period when counted from the date of ARE-1 is appears to be against the provisions Notification. This aspect has to be once again examined in the light of statute. Observation of the lower authority that interest is not admissible since provisions of Section 11BB of Central Excise Act, 1944 are not applicable is against the law. Provisions of Section 83 of Finance Act, 1994 clearly provide that provisions of Section 11BB are made applicable to service tax matters but this aspect has not been verified before rejecting the refund claim by both the lower authorities.
The lower authorities appear to have not taken care to verify and record the facts correctly and have also not applied statutory provisions correctly. In the interest of justice, the impugned orders are required to be set aside and the matter is remanded to the original adjudicating authority to verify the facts within three months from the date of receipt of this order.
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2013 (1) TMI 242
Residential and Industrial Construction Services - demand of service tax - Held that:- It is undisputed fact that the appellant is providing commercial construction as well as residential construction. But if any service tax liability has to be fastened upon the appellant, it is for the adjudicating authority to come to a conclusion as to what will be the amount attributable to the commercial construction activity as well as the residential construction activities. In the absence of any such bifurcation on the service tax liability, the matter needs to be reconsidered by the adjudicating authority.
Set aside the impugned order of demand and remand the matter back to the adjudicating authority to reconsider the issue afresh after following the principles of natural justice.
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2013 (1) TMI 241
Supply of bunkers to vessels, transportation and charter hire of assets - Supply of Tangible Goods Service (SOTG) - demand of service tax - Assessee is registered under the category of "Port Services" - Held that:- It is not permissible for anyone to supply water or bunker to vessels and to supply these items the port's authorization is a must. Further, from the sample invoices reproduced in the show-cause notice, it is seen that the invoice mentions "supply of fresh water by barge as per nomination". It has to be noted that in this case, supply of fresh water would include cost of procurement of water, transportation of the same to the vessel and other costs incurred in relation to provision of service in the port. Supply of water and bunker to vessels is part of port services. It has not been explained why the appellant suddenly came to the conclusion that supply of water is not covered by port services on 1/04/2007, except stating that the transaction is a sale and they got legal advice. Details of legal advice and whether legal advice had taken note of Board's Circular is not clear. Thus the fact that the water is supplied by barges to the vessels only by nominated persons by port and invoice is containing the description "supply of water" would, prima-facie go against the appellant.
Supply of barges/vessels to the customers without agreement - The invoice raised by the appellant gives description "supply of boats/barges for transportation, port bunkering etc. and the rate shown is a specific amount per month. In the absence of an agreement, the only option available is to arrive at a conclusion based on the invoice. The invoice used the words "supply of boats/barges". Transactions where hiring/leasing were involved attract sales tax or VAT in many States. Further, allowing another person to use the goods without giving legal right or possession and effective control is treated as service. Since no Sales Tax has been paid and no evidence has been shown that the transaction is a transaction of right to use and was liable to sale tax, the natural conclusion would be that the transaction is supply of tangible goods for use without parting with the right of possession and control. In the absence of any agreement, the only document available are invoices and invoices do not support the claim of the appellant.
The appellants have not made out a prima-facie case in their favour - since the matter has to be heard in greater detail to understand the nature of transaction at least a portion of the amount demanded as pre-deposit is required appropriate to Rs.3.5 crores within 8 weeks from today and report compliance on 05/02/2013.
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2013 (1) TMI 218
Courier Service - Penalty u/s 76 - Non-payment of service tax - Assessee contended that two amounts though included as gross revenue for the months of May & July 2007, inadvertently were also reflected as revenue received during September 2007 and this has happened due to introduction of new software programme - the same is only a clerical mistake - Held that:- Since dispute relates to verifiable facts appellant should produce necessary documentary evidence like invoices relating to the two payments, the details of cheques under which the amounts were received from the service recipient and Bank statement (self certified copy of computer generated statement) and other relevant documents to show that this was merely due to arithmetical mistake. For fresh consideration remand back to AO
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2013 (1) TMI 217
Waiver of pre-deposit - Service Tax liability on NSE/BSE transaction charges and SEBI turnover fees - Held that:- Following the decision in case of SHAH INVESTORS HOME LTD.(2011 (3) TMI 727 - CESTAT, AHMEDABAD) that Service Tax is not leviable on such payments received by the assessee. Appellant has made out a case for waiver of pre-deposit. Stay granted
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2013 (1) TMI 216
Waiver of Pre-deposit - Non-inclusion of cost of free material supplied by the service recipient - October 2005 to March 2008 - Held that:- The post service tax valuation rules, the said rules provides for inclusion of free material supplied by service recipients and has been directing the assessee in other cases to deposit some amount of the Service Tex liability for the period post service Tax valuation rules as a condition to hear and dispose the appeal. Appellant has already deposited an amount of Rs. 9.04 lakhs against the demand of Rs.38.53 lakhs for the entire period. Waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed
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2013 (1) TMI 215
Manpower Recruitment and Supply Agency Services - Appellant is doing the job for cutting, welding, fabricating, pipe fittings etc. on the engineering raw materials supplied by the Tube Product Incorporate (TPI) - The said work was done in the premises of TPI for which they were engaging skilled/ semi-skilled and unskilled technical workers and contractors and raising lump sum bill on the TPI - Held that:- As concluding from the facts work force employed for doing this job was paid by the appellants herein and not by the TPI. Following the decision in case of Ritesh Enterprises (2009 (10) TMI 182 - CESTAT, BANGALORE) Appellants have made out a prima facie case for waiver of pre-deposit of the amounts involved. Waiver of pre-deposit and stay granted
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2013 (1) TMI 193
Non discharge of Service Tax liability - recipient of services from a person situated abroad - seeking waiver of pre-deposit along with interest and penalties u/s 76 & 78 - Held that:- The issue is no more res-integra as decided in Indian National Shipowners Association [2010 (12) TMI 12 - SUPREME COURT OF INDIA] subsequently followed in CCE Vs Bhandari Hosiery Exports [2010 (10) TMI 907 - SUPREME COURT] . Even the CBE&C vide Circular F.No.276/8/2009-CX8A, dt.26.09.2011, has reiterated and accepted the said judgments of Apex Court.
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2013 (1) TMI 192
Instructions for appeal filed before the Tribunal - Held that:- Since the Board itself had directed the lower authorities not to file an appeal before the Tribunal for an amount of less than Rs.1,00,000/- vide the circular dated 20.10.10, the appeal filed by the Revenue is dismissed. This view has been held by the Hon ble High Court of Gujarat in the case of Stovec Industries Ltd [2013 (1) TMI 72 - GUJARAT HIGH COURT].
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2013 (1) TMI 191
Waiver of pre-deposit - Stay of recovery - Extended period of limitation - under subsection (2) of Section 73A - Service tax to the above extent was collected by them from their customers but did not credit it the exchequer - Held that:- As the appellant collected service tax and, admittedly, did not remit it to the exchequer, they do not have prima facie case against the impugned order. The appellant has not pleaded financial hardships in the present application. Pre-deposit an amount of Rs.2,00,00,000/- (Rupees Two Crores Only) within six weeks and report compliance to the Assistant Registrar on 3.10.2012 and Assistant Registrar to report to the bench on 10.10.2012 Subject to due compliance, there will be waiver of pre-deposit and stay of recovery in respect of penalty imposed on the appellant and the balance amount of service tax and interest thereon In favour of revenue
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2013 (1) TMI 190
Commercial & Industrial Construction services - Service Tax liability for the period 10.07.2004 to 10.09.2004 - assessee contested that work was initiated before the Service Tax liability on Commercial & Industrial Construction services came into existence i.e. 10.07.2004 & completed on 10.09.2004 - Held that:- The contract for construction was entered into by the appellant with the service receiver on 10.07.2004. The scope of contract, undoubtedly, includes all the works as per contract i.e. the work of excavation onwards upto the construction of structures for the service recipient.
Assessee's arguments does not boost any confidence as at this juncture that in two months, the appellant could not have completed 75% of the job which has been given to him. The issue is arguable one - the appellant has not made out a prima facie case for complete waiver of pre-deposit accordingly directed to deposit an amount of Rs.2.50 lakhs within a period of eight weeks from today and report compliance on 14.11.2012.
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2013 (1) TMI 166
Service tax with education cess on the toll charges collected at Venkatachalam Toll Plaza, Budanam Toll Plaza and Sullurpet Toll Plaza on NH.5 - Held that:- CIDBI was awarded the work of widening the existing two lane highway to four lane highway on both sections of NH.5 and NH.9 mentioned above including construction, strengthening and widening thereof and the operation, maintenance of the same through a concession on BOT basis. Thereafter, a memorandum of agreement dated 19.12.2000 was entered into between NHAI and CIDBI and clause 5 of the said agreement permitted CIDBI to transfer all rights, benefits, interests, duties and obligations of CIDBI under the said agreement to a SPV to be constituted by CIDBI. A concessionaire agreement dated 27.3.2001 was subsequently entered into appointing CIDBI as the Concessionaire inter alia to collect toll also apart from designing, engineering, financing, procurement, construction, completion, operation and maintenance. Later, CIDBI had promoted and incorporated the respondent on 11.5.2001 as a SPV and assigned all its rights to the respondent under the assignment agreement dated 29-06-2001 to which NHAI is also a party.
Under Clause 2.1 of the assignment agreement dt.29.6.2001, CIDBI assigned and transferred the concession agreement in favour of the respondent and the respondent unconditionally agreed to accept the said assignment/transfer of the concession agreement and undertook to execute/perform the concession agreement as if the said agreement was entered into between NHAI and the respondent. Clause 2.2 of the agreement states that NHAI agreed to the aforesaid assignment of the concession agreement by CIDBI in favour of the respondent and with the execution of the assignment agreement, the respondent shall be deemed to be the concessionaire under the concession agreement. Clause 2.3 of the agreement provided that with the execution of the assignment agreement, NHAI and CIDBI released each other from their respective rights, duties and obligations under the concession agreement. Clause 2.4 of the agreement states that this assignment agreement shall be annexed to the concession agreement dated 27.3.2001 and shall form an integral part of the concession agreement. A conjoint reading of the above clauses of the assignment agreement dated 29.6.2001 lead to the irrefutable conclusion that the respondent alone was the concessionaire entitled to collect toll as all the rights of CIDBI under the concession agreement dated 27.3.2001 including toll collection, were assigned to the respondent with the consent of NHAI.
Revenue pointed out from clause G of the preamble to the assignment agreement dated 29.6.2001 that the word "toll collection" was not mentioned therein and therefore CIDBI continued to be the agency for collection of toll and not the respondent. Thus the preamble to the agreement or clause G would not be relevant and one has to see the operative clauses of the agreement dated 29.6.2001 i.e. clauses 1.1, 2.1, 2.2, 2.3 and 2.4, thus rejection of contention of the counsel for the Revenue.
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2013 (1) TMI 165
Cenvat Credit of service tax paid on input services used for ammonia storage tank - denial of Credit as storage tanks are attached to earth and therefore are immovable property and also that the services are being used outside the factory premises - Held that:- As under Rule 4(7) there is no such restriction about the use of input services outside the factory but Rule 4(7) is to be read with definition of input service under Rule 2(l) of the Cenvat Credit Rules stating that only those services will qualify for the input services which are used after input stage or those input services are used in the manufactured or produced from input or said service
Ammonia is imported by the appellant and after goods are cleared from the port and the goods are delivered to the appellants. Procurement of the input is over after taking delivery of the goods. Thereafter appellants are eligible for credit of service tax paid on inward transportation of the inputs as per definitions of the input service. Thus finding that Consulting Engineer Service, Technical Inspection and Certification Service, Construction Service and erection, commissioning and installation service are used in installation of storage tanks outside the factory. Inclusive definition of input service also includes input services used in relation to storage upto the place or removal. Storage upto place of removal will include the storage of final products and not storage of inputs because whenever legislature wanted to give the benefit, in respect of inputs it has done so by specifically mentioning as procurement of inputs and inward transportation of the inputs. Therefore, input services used in relation to storage of inputs outside the factory will not be eligible for the credit. Since the appellants were not eligible for the Cenvat Credit penalty under Rule 15A and also the interest has rightly been confirmed by the adjudicating authority - against assessee.
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2013 (1) TMI 164
Business Auxiliary Service - production or processing of goods for or on behalf of, the client - demand of service tax along with interest and penalties - assessee contested that the impugned processes amount to manufacture - Held that:- Examining the processes of denting and painting undertaken by assessee such processes are carried out before the bus body was cleared out of the factory. The process are essential for completion of manufacture of bus bodies and having no reason to hold that these processes cannot be considered to be manufacturing activities within the meaning of section 2 (f) of Central Excise Act, 1944. Further going by note 6 of section XVII of Central Excise Tariff, these processes per se also are defined to be process of manufacture because these processes are essential for transforming the semi-finished bus body into a complete and finished article. Thus the argument of Revenue fails.
Whether shifting of goods within the factory premises amounts to "production or processing of goods for, or on behalf of, the client" - Held that:- Obviously the word "production" cannot cover shifting of goods. The word "processing" used in the company of "production" cannot be understood to cover any activity on the goods but only those activities which bring about some change in goods. These words cannot cover activities like shifting, transportation, storage etc within its scope. Shifting of waste arising in the process of manufacturing is one stage further removed from manufacturing activity. So no merit in the argument of Revenue.
Exemption under notification 08/2005-ST denied - non producing evidence of duty payment - Held that:- The appellant was doing these jobs within the factory of JCBL who regularly submits excise returns to the excise department which administers service tax levy also. The whole case is made out based on scrutiny of the records of JCBL Ltd & there is no effort made by the department to identify exempted clearances of JCBL Ltd. Thus there is an approach of selectively looking at the records of JCBL Ltd. At least when pointed out by the appellant, there was an onus on the department to reexamine the records, thus the exemption under notification 08/2005-ST has been denied arbitrarily.
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