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Service Tax - Case Laws
Showing 81 to 100 of 127 Records
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2013 (6) TMI 339
Levy of ST on sale of SIM Cards of BSNL - extended period of limitation - Held that:- Interestingly the services of selling agent or a distributor of SIM cards or recharge coupon vouchers have been exempted from service tax vide entry No. 29 in Notification 25/2012-ST dated 20-06-12. So the special nature of services in such cases is recognized though only recently.
Though the correct procedure for discharge of the service “tax liability by the two parties is that the distributors raise bills for commissions that is due to them along with service tax and BSNL takes Cenvat credit of tax paid by distributors for discharging liability on the telecommunication service provided by BSNL, such procedure dos not result in extra realization of Revenue. Considering the special nature of the impugned activities and the fact that it can be easily verified that full taxable value of the service provided by BSNL to customers is subjected to tax, we are of the view that there is no case to undo decisions already taken by the Tribunal in this regard
This issue has lost relevance for the future because of exemption under Notification 25/2012-ST-S. No. 29 for this type of service. - Demand set aside - Decided in favor of assessee.
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2013 (6) TMI 338
Provision of services to SEZ - exemption by way of refund mechanism - non payment of service tax - Notification no. 9/2009-ST dated 3-3-2009 - Held that:- when only during the gap of 2 months the appellant did not pay the Service Tax and it was available as refund to the recipient, the question of having any intention to evade duty does not arise and therefore the Show Cause Notice issued on 19-10-2010 to recover the Service Tax from 3-3-2009 to 20-5-2009 was time-barred.
Under these circumstances, the extended period could not have been invoked and penalty could not have been imposed and further legally also, it can be argued that the intention of the Government was to provide exemption and tax could not have been demanded during the relevant period. - Decided in favor of assessee.
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2013 (6) TMI 318
Benefit of abatement of 67% denied - Service tax demanded under the category of "commercial or industrial construction services and construction of residential complex services" - writ petition against the order of the learned Single Judge [2013 (3) TMI 294 - MADRAS HIGH COURT] - Held that:- it is evident that no one appeared for the appellant on the date of hearing and the authority has proceeded with the matter and passed the order, that too without giving sufficient reasons regarding pre-deposit of 50% for hearing the appeal on merits. Since the appellant is making grievance about non compliance of the principle of natural justice, we are of the view that the writ appeal may be disposed of by fixing the date of hearing of the representative of appellant on 26.4.2013 and on the said date, the concerned respondent is directed to hear the representative of the appellant and pass orders on merits.
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2013 (6) TMI 317
Levy of ST on sale of SIM Cards of BSNL - extended period of limitation - held that:- activity of purchase and sale of SIM card belonging to BSNL where BSNL has discharged the service tax on the full value of the SIM cards, does not amount to providing business auxiliary services and confirmation of demand on the distributors for the second time is not called for. - Demand set aside - Decided in favor of assessee.
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2013 (6) TMI 316
Export of services - Business auxiliary service - Stay - assessee is getting their commission in foreign exchange for the service rendered for promotion of the products - Held that:- Board vide circular dated 24-2-2009 clarified that for Category III services [Rule 3(1)(iii)], it is possible that export of service may take place even when all the relevant activities take place in India so long as the benefits of these services accrue outside India. - the applicants are able to make out a prima facie case for total waiver of pre-deposit of Service Tax and other dues adjudged and requirement of pre deposit of dues is waived and recovery thereof is stayed during pendency of the appeal.
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2013 (6) TMI 315
Construction of residential complexes - Levy of ST on Advance received - Section 65(105)(zzzh) of Finance Act, 1994 read with Section 65(30a) - held that:- the decision of Punjab & Haryana High Court in the case of G.S. Promoters [2010 (12) TMI 34 - PUNJAB AND HARYANA HIGH COURT] was about constitutional validity of the explanation added by Finance Act, 2010. That decision did not examine Service Tax liability for the period prior to the date on which the explanation was added.
The Tribunal has taken a view in CCE, Chandigarh v. M/s Skynet Builders, Developers, Colonizer and Others [2012 (4) TMI 427 - CESTAT, NEW DELHI]. and other appeals that the explanation cannot be have retrospective effect and that in view of the various clarifications issued by C.B.E. & C. during the relevant time no Service Tax liability can be imposed on the respondent for this type of activity. - Decided in favor of assessee.
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2013 (6) TMI 293
Service of repair and maintenance - According to the department, the appellant have received these services from the offshore service providers - demand of service tax - Held that:- The service of repair and maintenance has been performed wholly abroad and as such, there is no evidence adduced by the department to show that part of the maintenance and repair service had been performed in India. In view of this, so far as this service is concerned, the appellant cannot be said to have received this service in India in terms of the provisions of Rule 3(1) of Taxation of Service provided from outside and received in India Rules, 2006 and as such the service tax demand of ₹ 49.45 crores does not appear to be sustainable.
Service of General Sales Agents - On perusal of the relevant clauses of the appellant's agreements with the GSAs appointed in various foreign territories for the services received by them it can be concluded that the services provided by the GSA to the appellant are covered by the definition of business auxiliary service as the GSAs appointed by the appellant not only represent the appellant abroad and provide various services on their behalf they also promote the sales of the services being provided by the appellant by undertaking various sales promotion activities. Since this service has been used by the appellant in India in relation to their business located, in India in terms of the provisions of Rule 3(1)(iii) of the Taxation of Services provided from outside India and received in India) Rules, 2006, this service has to be treated as having been provided from outside India and received in India by the appellant and, therefore, in terms of the provisions of Rule 66A of the Finance Act, 1994 read with Rule 2(1)(d)(iv) of the Taxation Rules, 1994, the appellant as service recipient would be liable to pay service tax on the same. Therefore, service tax demand of ₹ 15.53 crores is on strong footing.
As the appellant have pleaded financial hardship stating that the appellant have on huge accumulated losses and are having difficulty in discharging their statutory functions appellant is directed to deposit an amount of ₹ 8 Crores within a period of 8 weeks from the date of this order.
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2013 (6) TMI 292
Services rendered to SEZ units - appellants have been claiming exemption under Notification No.4/2004-ST, dated 31.03.2004 - Revenue submits that the appellant is providing logistics services and transportation of goods by sea is only one component of various activities required for providing such service. He argues that the service is appropriately classified as "Business Support Service" - Held that:- As regards ocean freight, it canoot be said as how it can be classified as "Business Support Service" and subject to levy of service tax.
In the matter of services rendered to the SEZ the matter is to be looked into with reference to each of the services and how it was utilized and requires detailed examination. So it is appropriate to call for a pre-deposit of Rs.25 lakhs on this issue to be deposited within a period of six weeks from today and report compliance on 13.03.2013.
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2013 (6) TMI 291
Import of service - levy of service tax prior to 18/4/2006 - held that:- it is settled law today that service tax cannot be levied from an Indian recipient of service imported from abroad for any period prior to 18/4/2006, the date of enactment of Section 66A of the Finance Act 1994. - Decided in favor of assessee.
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2013 (6) TMI 290
Levy of Penalty u/s 76 - original authority has confirmed the demand of service tax and imposed penalty under Section 78 but refrained from imposing penalty under Section 76. - Held that:- It has been held by the Tribunal in the case of Opus Media and Entertainment Vs. CCE, Jaipur [2007 (4) TMI 612 - CESTAT NEW DELHI] that when Section 78 penalty is imposed, there is no justification for imposing penalty under Section 76.
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2013 (6) TMI 265
Tour Operator - appellant had obtained the permit of vehicle as service vehicle/ordinary Bus for factory employee convenience under Section 76 of M.V. Act, 1988. - Held that:- the subject vehicle has a permit to carry more than 6 persons excluding the drivers and is to be used by M/s. Ranbaxy Ltd., Malanpur for carrying persons in connection with their trade or business otherwise than for hire or reward i.e. their employees and was not used for public purposes and was authorized by the R.T.O. to be used as ‘Private Service Vehicle’. Therefore, subject motor vehicle was a ‘Private Service Vehicle’ and not a ‘tourist vehicle’. To bring a person to the field of ‘Tour Operator’ service, that person should have been engaged in the business of operating tours in a tourist vehicle covered by a permit granted under Motor Vehicle Act, 1988.
The person must have been engaged in the business of operating tours, the tours must be conducted using tourist vehicle, the vehicle must have been under the grant of permit under Motor Vehicle Act to conduct tourism business, but in the present case, the evidences on record does not support the allegations made in the impugned Show Cause Notice.
The appellant’s vehicle was not a ‘tourist vehicle’ as contemplated under Section 2(43) of the Motor Vehicle Act, 1988, which is sine qua non for the application of the Finance Act, 1994. Thus, if the subject vehicle was not a ‘tourist vehicle’, the provisions of Finance Act, 1994 would not apply against the appellant and more particularly the provisions of Section 65(115) and the other allied Sections 73, 75 and 76 of the Finance Act, 1994 - Decided in favor of assessee.
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2013 (6) TMI 264
Vehicle on hire - rent-a-Cab service - Held that:- In the absence of any contrary evidence produced by the Revenue that the said vehicle was not a goods transport vehicle, relying upon the affidavit filed by the appellant to state that the said vehicle was a goods vehicle, we hold that any amount received by the appellant towards services rendered by such vehicle to M/s. Torrent Power Limited, by any stretch of imagination, cannot be considered as services rendered under the category of Rent-a-Cab services. - Demand set aside - Decided in favor of assessee.
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2013 (6) TMI 263
Condonation of delay in filing an appeal before Commissioner (Appeals) - delay of 69 days - held that:- By adopting the guidelines laid down by Hon’ble Supreme Court in Perumon Bhagvathy Devaswom, Perinadu Village Versus Bhargavi Amma (Dead) By LRs & Ors. [2008 (7) TMI 836 - SUPREME COURT], we deem it fit that the appellant has to be shown some leniency in the present case for the purpose of condoning the delay before Commissioner (Appeals). The circumstances explained by the appellant cannot be held leading to any conscious delay or dilatory tactics on their behalf. As such we are of the view that Commissioner (Appeals) should have condoned the delay and should have decided the appeal on merits.
The decisive factor in condonation of delay, is not the length of delay but sufficient of a satisfactory explanation - Decided in favor of assessee.
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2013 (6) TMI 262
Clearing and forwarding agent (C&F) service - Held that:- assessee (respondents) were free to sell the goods to their own customers and were not merely dispatching the goods on the orders of their principal. - the invoice was being issued by the respondent themselves. - respondent can not be held to be C & F agent. - Decided in favor of assessee.
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2013 (6) TMI 259
Service Tax liability on amount received from the main contractor - whether assessee is liable to pay if the main contractor has discharged the Service Tax liability on the total contract value? - both the lower authorities have relied upon CBE&C Circular 23.08.2007 to demand service tax - Held that:- The amount which has been received by them is prior to 23.08.2007 and by virtue of the main contractor having discharged the Service Tax liability, the appellant is not liable to discharge the Service Tax liability fortified by the fact that the earlier CBE&C circular, dt.6.6.1997 and 2.7.1997 specifically mentioned that the sub-contractors need not pay Service Tax if the main contractor has paid the Service Tax. Tribunal in the case of Monarch Surveyors & Contractors [2013 (1) TMI 547 - CESTAT MUMBAI] has specifically applied this circular and held in favour of the assessee therein, who was a sub-contractor prior to 23.08.2007.
Appellant has made out a strong case for waiver of pre-deposit of the amounts involved.
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2013 (6) TMI 237
Service tax liability on rendering the service under Business Auxiliary Services - assessee contested that this is the only stray incident wherein they have got a commission for giving some help regarding machines to be procured for wind mill energy & he is a manufacturer of chemicals - Held that:- Consedring submission of appellant that he is eligible for the benefit of small scale service provider notification which has not been considered by the lower authorities but hastens to add that this point was not raised before the lower authorities. Since the issue involved was raised before the Tribunal for the first time adjudicating authority should be allowed to consider this submission and come to a conclusion.
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2013 (6) TMI 236
Utilization of cenvat credit for discharge of service tax on the GTA services - FAA had directed the appellant to deposit the entire amount of the service tax liability along with interest and penalty for hearing and disposing the appeal - Held that:- The issue involved in this case is prior to 01.03.08. Prior to issuance of the notification No.10/08-CE (NT) dated 01.03.08, there are various decisions which have held that the assessee is eligible to utilise the cenvat credit for the discharge of service tax liability on the GTA services. Thus this decided ratio will be applicable in this case.
Set aside the impugned order and remand the matter back to the FAA to reconsider the issue afresh and pass an order on merits without insisting any amounts as pre-deposit. Appeal is allowed by way of remand.
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2013 (6) TMI 235
Service tax payable on reverse charge mechanism for availing the services of persons located outside - stay petition for waiver of pre-deposit of amount of service tax confirmed - Held that:- Lower authorities have come to a conclusion that the appellant has organised a business exhibition abroad and hence liable to pay service tax under the provisions of Section 66A of the Finance Act, 1994, for the amounts paid by appellant for organising such exhibition whereas appellant’s contention that they have not organised any exhibition but have paid for participating in such exhibition. There is a vast difference between organising and participating in an exhibition. Both the lower authorities have not considered this obvious difference.
Finding strong force in the contentions raised by the assessee that CBEC Circular No. 354/11/2011-TRU dated 22.3.2011, will have bearing on the issue in hand, which has not been discussed by the lower authorities the appellant has made out a case for disposal of his appeal on merits by the first appellate authority after following the principles of natural justice and without insisting on any pre-deposit from the appellant.
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2013 (6) TMI 234
Refund - Show cause notice issued for not filing of refund claim in time and secondly that the export was in the name of M/s. Welspun Trading Ltd - While passing the adjudication order adjudicating authority rejected the refund claim on an altogether different ground of absence of certain documents which was not satisfied nowhere in the show cause notice - Held that:- It is a well settled principle that adjudicating authority cannot go beyond the scope of show cause notice.
However, to meet the ends of justice it will be proper to ask the appellant to provide the specific documents required in addition to what they have already supplied to the department on 09.01.09 before issue of show cause notice. The matter is accordingly remanded to the adjudicating authority with a direction to specify the documents required and take appropriate action.
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2013 (6) TMI 205
Non compliance of stay order with direct to predeposit - appeal dismissed for non-compliance with Section 35F.
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