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Service Tax - Case Laws
Showing 41 to 60 of 127 Records
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2013 (6) TMI 564
Sharing of manpower between group companies - reimbursement of the expenditure - Levy of service tax - Business Auxiliary Services - Held that:- After examining the memorandum of ASSOCIATION of the appellant company and the group of companies, prima facie it appears to be a case of recruiting staff for the group companies and supplying them to the group companies to deal with the activities undertaken by the group companies. Such an activity does not, prima facie, come under the purview of the Business Auxiliary services as defined under Section 65 (90) of the Finance Act, 1994. - prima facie view that the appellant has made out a case in their favour for grant of stay. - stay granted.
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2013 (6) TMI 563
GTA service for the period 16/11/1997 to 01/06/1998 - Held that:- for the period involved during 16/07/1997 to 02/06/1998, the show-cause notice should have been issued during the said period and the notice issued after the retrospective amendment is not sustainable in law. - Demand set aside.
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2013 (6) TMI 562
Commercial training or coaching service - The appellant are a society registered under Society Registration Act, 1860 and are engaged in organizing various courses in clinical medicine in collaboration with Cranfield University, U.K. - Held that:- though the appellant have pleaded that they had been conducting courses in affiliation with Guru Jambeshwar University, Hisar; Dr. M.G.R. Education and Research Institute (Deemed university), PRIST University, Thanjavur and the degree awarded by the above universities are recognized by UGC and, therefore, the Appellant are not covered by the definition of "commercial training or coaching centre" and as such, no service tax can be demanded from them on the amounts charged by them from the students for the courses in clinical sciences being organized in collaboration with Cranfield University, U.K., no finding has been given by the Commissioner on this plea. In my view, this is the most important point in this case and in course of de novo proceedings, the Commissioner has to give his finding on the above plea of the appellant and if it is found that during the period of dispute, they were also conducting courses which resulted in award of degrees, diplomas, etc. recognized under the Indian laws, the appellant would be outside the purview of the definition of "commercial training or coaching centre", as the same stood during the period of dispute, and no service tax can be charged from them even in respect of the courses being conducted in collaboration with Cranfield University, U.K. - Case remanded back for de-novo decision.
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2013 (6) TMI 561
Classification - Mandap Keeper - Split of the charges - hall charges and supply of food - levy of service tax - Held that:- From the above decision of the hon'ble apex Court in the case of Tamil Nadu Kalyana Mandapam Assn [2004 (4) TMI 1 - SUPREME COURT OF INDIA], it is clear that the services rendered by the mandap keepers as caterer would also be liable to service tax under the category of ‘Mandap Keeper Services'.
The decision relied upon by the consultant on the hon'ble High Court of Karnataka [2011 (4) TMI 451 - KARNATAKA HIGH COURT] is with reference to ‘Outdoor Catering Services' rendered in an aeroplane and the other decision of the Tribunal in the case of Daspalla Hotels Ltd [2009 (7) TMI 551 - CESTAT, BANGALORE] it is in respect of evidence relied upon by the appellant with regard to VAT paid on the value of food and beverages sought to be taxed under ‘Convention Services'.
Appellant has not made out a case for 100% waiver of pre-deposit of the dues adjudged against him. - demand for the normal period of limitation directed to be deposited - stay granted partly.
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2013 (6) TMI 541
Hiring of DG Sets - supply of tangible goods - liable to service tax or VAT - Held that:- the possession or ownership of the Diesel Generator sets remains with the appellant and effective control of such machinery though may be with the service recipients, appellant's manpower controls the functioning of such Diesel Generator sets. We also find, in one of the agreements with ICICI Lombard, it is mentioned that appellant is being reimbursed for the diesel which has been used for running the Diesel Generator sets which also indicates that the appellant has an effective control over the machinery. At this juncture, we find that the appellant has not been able to make out a prima facie case for complete waiver of the amounts involved. - stay granted partly.
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2013 (6) TMI 540
GTA - service tax on the services of GTA on 25% of gross amount of value - declaration/certificate from the provider of the said services - Held that:- It is the contention of the Revenue that declaration with regard to provision (i) and (ii) are to be made on body of each consignment note. Appellants in this case have produced declaration/certificates on annual basis. - Benefit of exemption allowed - Decided in favor of assessee.
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2013 (6) TMI 539
Abatement of 67% - Valuation - Notification No.1/2006/ST dated 1/03/2006 or the benefit of Notification No.12/03-ST dated 20/06/2003 - erection or installation service - works contract service - Held that:- the issue involved in this case is that the appellant is required to discharge service tax on the entire value received by them from their clients. On perusal of records, we find that appellant has issued the work contracts for doing insulation work, either for hot or cold insulation, for completion of such insulation work, appellant is using Aluminum sheets, Cold insulation with Thermocol and insulation of pipeline with black superioan sleeve providing and fixing of black superioan sleeve with cellotape, insulation with black nitrite rubber foam, sheet etc. Though the ld. Counsel tried to convince us, by bringing to our notice various bills as regards materials consumed by appellant, that they have paid VAT, the said accounting pattern of appellant is confusing and is not bringing out details of the materials which have been consumed by appellant. - the issue is highly debatable and needs considerable time to come to a conclusion on merits - stay granted partly.
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2013 (6) TMI 538
Cenvat Credit - Input services - repair and maintenance of the oxygen plant - Held that:- in case the installation and commissioning of the plant was done by a different party, then the assessee who undertakes the operation and maintenance and activity cannot take credit inrespect of service tax in respect of installation and commissioning of the plant. In the present case, different activities are undertaken by the applicants under a different agreements and the dispute is in respect of the credit which was availed in respect of installation and commissioning of the plant under a different contract and the applicants want to utilize that credit towards payment of service tax in respect of operation and maintenance service which is under a different contract. - prima case is against the assessee - credit denied.
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2013 (6) TMI 537
Revenue appeal - condonation of delay in filing an appeal - clearance from committee of commissioners - Held that:- since the Chief Commissioner (DZ) and Chief Commissioner (CZ) merely appended their signatures on 14.07.2012 and 23.07.2012 to the respective note sheets and memorandum of facts and analysis, drawn up by the respective subordinate officers and the record neither records nor discloses due application of mind, the authorisation to prefer the appeal is unsustainable. We note that the Board has issued a memorandum of instructions dated 23.11.2012 pointing out that the notes in the file and other relevant records should disclose meaningful consideration and application of mind by the committee.
As a consequence of the unsustainable authorisation, the appeal must fail and is accordingly dismissed. Since the appeal is dismissed on the ground of defective authorisation by the committee of Chief Commissioners, we dismiss the CoD application No. 2955 of 2012 as infructuous, though we are satisfied prima facie that satisfactory cause exists for condonation of the delay of three days in preferring the appeal. - Decided against the revenue.
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2013 (6) TMI 514
Non compliance of stay order - Held that:- the time granted by the Hon’ble High Court has already expired. No stay order from the apex court against the High Court’s judgment has been produced by any of the appellants. - appeal dismissed.
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2013 (6) TMI 513
Condonation of delay - delay of 134 days - it was submitted that file of the present matter was misplaced in the office of the counsel of the appellant due to the mistake on the part of the clerk. - Held that:- it is seen that the applicant did not mention the name of the counsel to whom it was handed over for preparation of the appeal. Further, it is not mentioned when the appeal papers were handed over to the learned counsel. In any event, we find that on the identical facts the Tribunal in the case of Magic Fasteners (P) Ltd. (2009 (5) TMI 633 - CESTAT, NEW DELHI) rejected the condonation of delay application. - Against the assessee.
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2013 (6) TMI 512
Demand of service tax - stay - commissioner (appeals) dismissed the appeal for non compliance of order of pre-deposit - Held that:- Keeping in mind the facts and circumstances of the case, we direct the appellant to deposit an amount of Rs.5 lakhs (Rupees Five Lakhs only) within a period of eight weeks from today and report compliance before the first appellate authority on 25.02.2013. The first appellate authority will ascertain that the appellant has pre-deposited the amount and on such ascertainment, will restore the appeal to its original number in his records and come to conclusion on the merits of the case, after following the principles of natural justice.
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2013 (6) TMI 511
Rectification of mistake - Refund - export of services - Notification No.41/2007-ST - Held that:- It is the submission of the Revenue that the decision of the Tribunal was based on incorrect facts and if the Tribunal was aware about the department having accepted the Order-in-Appeal dated 27/02/2011 which had upheld sanction of refund by Assistant Commissioner, the decision would have been different. It is settled law that for consideration of application for rectification of mistake, error has to be apparent from the record and should not require any detailed discussion. The very fact that the whole history of the case involved in two rounds of litigation up to the level of Commissioner (A) and one round before this Tribunal has to be reproduced and finally it had to be submitted that if the Tribunal was aware of the acceptance of the Order-in-Appeal by Revenue decision would have been different itself and would know their own error apparent from the order or record in this case.
It cannot be a mistake on the part of the Tribunal having not been aware of acceptance of Order-in-Appeal, but in fact, the mistake on the part of the Revenue to have accepted the order-in-original without thinking of the consequences. - application for rectification rejected.
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2013 (6) TMI 510
Cenvat Credit - suo moto credit - Taxable service - painting activities in respect of commercial and non-commercial buildings. - Rule 6(3)(c) of the CENVAT Credit Rules, 2004 - Held that:- order of predeposit of the amounts for a technical violation in taking the suo motu credit by the appellants after depositing the cash amount in view of the credit utilized earlier will be harsh. - stay granted.
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2013 (6) TMI 491
Nature of receipt - wither in the nature of collection of the maintenance and service charges from the plot holder or of lease rental - Held that:- the issue involved in this case is contentious one and needs to be gone into detail as the findings recorded by the adjudicating authority indicate that the services rendered by the appellant and the amount charged annually, prima facie, may not be covered under the head 'lease rent'. At the same time, we find that the appellant is a Government of Gujarat undertaking as per Gujarat Industrial Development Act, 1962 and hence, prima facie, can also be considered as a public authority as envisaged by the Board in circular dt.18.12.2006. - prima facie case is not in favor of assessee - directed to make predeposit a token amount of Rs. 15 lakhs.
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2013 (6) TMI 490
Service Tax Liability - who is liable to discharge - appellant submits that as per the definition under Section 65 (7) of the Finance Act, 1994 “assessee means a person liable to pay service tax and includes his agent”. As per the tripartite agreement, he has appointed three agencies as agents not only for the purpose of negotiating with the corporate for the services to be undertaken by him but also for the discharge of tax liability.
Held that:- service tax liability discharged through the agent is sufficient - the assessee includes his agent and therefore, if the tax liability has been discharged by the agent on the service rendered by his principal, that is sufficient for discharge of service tax liability by the principal. Therefore, following the decision in the case of Ms.Katrina R Turcotte (2012 (12) TMI 579 - CESTAT MUMBAI), we allow this appeal with consequential relief, if any. - Decided in favor of assessee.
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2013 (6) TMI 489
Cargo Handling or transportation (GTA) service - Stay - Extended period of limitation - computation of period for issuance of Show cause notice (SCN) - held that:- . In any case, demand for the period October 2008 to December 2009 is within the normal period of time. Further, time-bar is both a question of fact and question of law which can be considered only at the time of final disposal of the appeal.
As regards, the contention of the appellant that the service rendered is ‘Cargo Handling' and not ‘transportation', we do not find any merit in this argument. The work order given by them to the transporters clearly indicates that it is for loading and transportation of clinkers and rate for transportation is far higher than that for loading. In any transportation, loading and unloading is incidental and, therefore, the predominant and essential nature of service is transportation and not ‘Cargo Handling'. - Prima facie case against the assessee - directed to make predeposit of 50% of demand.
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2013 (6) TMI 488
Commercial construction activity - bulk of constructions undertaken are School buildings, Ayurvedic Medical Colleges and Engineering Colleges and so on. - on other commercial constructions the principal contractor has discharged the Service Tax liability - Held that:- From the above circular, it is clear that educational institution, government building etc. do not come under the category of ‘Commercial or Industrial Construction services'. Therefore, prima facie services rendered in respect of educations institutions would not come within the purview of tax liability and, therefore, the demand of Service Tax, in this regard, without verifying the nature of construction as certified by the local authorities, cannot sustain in law.
Regarding other construction - matter remanded back - The appellant is also directed to co-operate with the department and submit all the documentary evidence with regard toe classification of the buildings they have constructed within a period of one month from the date of receipt of this order and thereafter, the adjudicating authority shall decide the matter in accordance with law after granting a reasonable opportunity of hearing to the appellant to make their submissions.
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2013 (6) TMI 468
Works contract service - supply and installation of 'Electronic Security and Safety Systems' - The department wanted to treat the entire transaction as "Works contract" and levy service tax accordingly from the appellant. - Held that:- The assessable value of the goods manufactured by the appellants, on which duty of excise was paid by them, was also included in the gross amount for the purpose of demand of service tax under 'Works Contract' service whereas Rule 2 A of the Service Tax (Determination of Value) Rules 2006 as amended provides that the value of taxable service in relation to services involved in the execution of works contract shall be determined to be the gross amount charged for the works contract less the transfer of property involved in the execution of the works contract. The department has no case that no transfer of property in goods was involved in the execution of the purchase orders. Apparently, the appellant sold both manufactured goods and bought-out goods to their customers as evidenced by the relevant invoices. If that be so, the entire value will have to be kept out of the taxable value of "Works Contract "service, in which event nothing would be left to be taxed for levy of service tax. Nevertheless, in respect of installation of the bought-out components of the systems, the appellant admittedly paid service tax under the appropriate head.
The appellant has made out a good case for waiver and stay. - Stay granted.
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2013 (6) TMI 467
Cenvat Credit - input services - fumigation services - Held that:- fumigation expenses incurred are in the nature of packing expenses. As packing expenses are allowable and input tax paid on it is allowable under the CENVAT Credit Rules. Input tax paid by the appelalnt for fumigation services is Cenvatable and allowable as input tax. - Decided in favor of assessee.
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