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Service Tax - Case Laws
Showing 21 to 40 of 146 Records
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2013 (7) TMI 861
Service tax under the head “Consulting Engineer's Service” - Appellant, NagindasJamnadasVora obtained a patent bearing no. 187148 of 08/01/1998 for a new compact oil cooler which was allowed to be used by Vora Exclusive Tools Pvt. Ltd., for which he was entitled to receive royalty - Appellant is liable to pay service tax on the royalty received – Held that:- appellant is only a matriculate and does not hold any professional degree in Engineering, recognized by law. Therefore, the appellant does not qualify as a “Consulting Engineer” as defined in law. Secondly, the appellant was a patentee and transferred the right to use the patent to his client for consideration of royalty payment. The said service merits classification under “Intellectual Property Service' which came into tax net with effect from 10/09/2004. Since the period in dispute is much prior to that, there is no service tax taxability with respect to the services rendered by him – Decided in favor of Assessee.
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2013 (7) TMI 860
Failure to make pre-deposit – Held that:- Appeal stands rejected for non-compliance of order dtd. 09.05.2012, to deposit Rs. 10 Lakh and consequent failure of pre deposit.
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2013 (7) TMI 859
Rate of service tax - 5% or 8% - date of providing service or the date of issue of invoices was mainly in issue – Held that:- The respondent has rightly paid the service tax as applicable on the date of providing the service – as decided in CCE & C, Vadodara vs. Schott Glass India Pvt. Limited (2009 (1) TMI 45 - HIGH COURT OF GUJARAT)- taxable event is providing the taxable service and not the raising invoice or making payment – appeal allowed in the favour of the assessee.
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2013 (7) TMI 820
Export of Service - Business Auxiliary Services – assessee provided facilitation of importation of goods into India - Held that:- Relying upon the judgement of Paul Merchants Ltd. vs. CCE, [2012 (12) TMI 424 - CESTAT, DELHI (LB)], A service provided by an agent or subagent in India to intended beneficiaries of an overseas company is service provided to a foreign company and not to the recipient of the goods or services provided by the foreign company and that the same must be treated as export of service - Export of services are to be determined strictly with reference to provisions of the 2005 Rules and not by any subjective assumption of what constitute export - On analysis of Rule 3(1)(iii) of the 2005 Rules. - prima facie case is in favor of assessee - stay granted.
Regarding reversal of cenvat credit - petitioner /appellant directed to remit Rs. 7 lakhs.
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2013 (7) TMI 819
Demand of service tax – Whether the assessee would come under the category of “stock broking service” – two notices were served to the assessee - Held that:- The order of the department was set aside - no attempt has been made by the Revenue to classify the service and to demand service tax thereon - the principles of natural justice have been clearly violated - primary requirement is to put the appellant to notice under what taxable service category he is liable to service tax - the activity is private placement of shares which have not been listed in any recognized stock exchange - The activity comes under the category of Merchant Banking activity – putting the liability prior to 2001 does not hold ground - the decision in CCE, Chennai Vs. Sundaram Finance Ltd(2007 (1) TMI 495 - CESTAT CHENNAI)also supports the view - classification done by the department of private placement of shares under management consultancy service has no basis - appeal allowed in the favour of the assessee.
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2013 (7) TMI 818
Construction of residential flats - collection and payment of outgoing expenses including any municipal local taxes, property tax, water charges, electric charges, revenue assessment or interest or any mandatory charges - Development and maintenance fees collected - Revenue held that activity undertaken is under category of Management, maintenance and repair services - Held that:- According to Section 5 of Maharashtra Ownership of Flats (Regulation) Act, 1963, appellant was obliged to discharge property tax, water and electricity tariff etc. on behalf of the flat owners and the appellant has undertaken these activity in the capacity of an executor - Therefore, the appellant has not rendered any management, maintenance or repair services - unconditional waiver from pre-deposit of the dues adjudged against the appellant granted - Decided in favour of assessee.
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2013 (7) TMI 817
Condonation of delay - Held that:- The order-in-original was received by the party on 23.07.2010 and an appeal against the same was filed only on 08.08.2011 with a delay far beyond the condonable period of delay prescribed under Section 85 - Section 5 of Limitation Act 1963 was not applicable and that the Commissioner (Appeals) was not empowered – u/s 35 of the Central Excise Act to condone any delay beyond the condonable period of delay (30 days) - Court relied upon Singh Enterprises Vs. Commissioner (2007 (12) TMI 11 - SUPREME COURT OF INDIA).
Waiver and stay application - no representation was made by the assessee despite notice nor any request for adjournment – court dismissed the stay application – decided against assessee.
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2013 (7) TMI 816
Rent a cab service – Penalty - whether the assessee would be liable for service tax when providing the services of motor cabs/ maxi cabs - Held that:- The assessee had provided the taxable service defined in Section 65(105)(O) r.w Section 65(91) – assesses contended that they were operating from a remote area and were ignorant of the relevant provisions - The contention is devoid of force - Ignorance of law cannot be considered a reasonable cause for failure to remit the legislatively mandated tax – following the judgement of Secy. Federn of Bus-operators Assn. of T.N. vs. UOI(2001 (4) TMI 7 - HIGH COURT MADRAS ) - wherever a cab is rented by a Rent-a-cab scheme operator to any person a transaction chargeable to service tax occurs and is liable to service tax at the statutorily prescribed rates – appeal decided against assesses.
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2013 (7) TMI 783
Condonation of delay application - The appellate order was received by the petitioner Cooperative Bank on 21/3/11. As per averments in the application, the petitioner handed over the papers to its C.A., Sumerpur, Pali for preferring an appeal alongwith several other appeals on the same aspect - The appeal was eventually preferred on 31/10/12 and thus occurred a delay of one year four months (16 months), beyond the period of limitation prescribed by provisions of the Finance Act, 1994 – Held that:- The COD application does not advert to any insuperable personal circumstances of the C.A., which is desalted processing of the appeal - Condonation of delay are without substance and are accordingly dismissed – Decided against the Assessee.
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2013 (7) TMI 782
Levy of service tax - Assessee entered into license agreement with a foreign company - Royalty paid for disposal of valuable information - Department issued a show cause notice for non-levy of service tax - Held that:- services were being received by the respondent from foreign company - Demand has been raised in the show cause notice under 'reverse charge mechanism' from the recipient of the service as per Rule 2(1) (d) (iv) of the Service Tax Rules - Recipient of service is liable to service tax from 18.04.2006 only - Since in the present appeal demand is raised for the period prior to 18.04.2006 on recipient of service, Respondent in the present case is not liable to service tax for the period prior to 18.04.2006 - Following decision of INDIAN NATIONAL SHIPOWNERS ASSOCIATION Versus UNION OF INDIA [2008 (12) TMI 41 - HIGH COURT OF BOMBAY] - Decided against Revenue.
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2013 (7) TMI 781
Cenvat Credit - input service - insurance service - Whether the input service of the assessee would be covered under CENVAT credit rules- assessee took the input service credit in respect of insurance premium paid on turnkey contracts to the extent of cost of material procured from the open market – Held that:- The services are not covered under input service as defined under Rule 2(1) of the Cenvat Credit Rules, 2004 - credit was not admissible to the assessee because they had opted for payment of service tax only on the value of Erection, Commissioning and installation and not included value of material used by availing benefit of Notification No. 01/2006-ST - the services are neither used by the assessee for providing any output service nor used in or in relation to the manufacture of final products and clearance of final products from the place of removal - it is specifically written that benefit shall be available if Cenvat Credit of duty on inputs and capital goods or service tax credit of input services has not been availed – appeal decided against the assessee.
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2013 (7) TMI 780
Application for condonation of delay – Delay of 72 days – Held that:- As per the recent judgment Office of the Chief Post Master General vs. Living Media India Ltd. reported in [2012 (4) TMI 341 - SUPREME COURT OF INDIA], the Hon’ble Supreme Court observed that all Government bodies, their agencies and instrumentalities must furnish reasonable and acceptable reasons for the delay and disclose a bona fide effort and cannot offer the usual explanation that the file was kept pending on account of an endemic procedural red tape - Condonation of delay is an exception and should not be used as an anticipated benefit for government/bureaucratic negligence - Reason furnished for the delay is unsatisfactory – Decided against the Assessee.
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2013 (7) TMI 779
Classification of service - storage of sugar - Whether service or not – Held that:- followed the judgement COMMR. OF C. EX., CHANDIGARH Versus NAHAR INDUSTRIAL ENTERPRISES LTD.(2010 (1) TMI 400 - PUNJAB & HARYANA HIGH COURT) - if The act of the Assessee can not be called as rendering of services - just because the storage period of free sale sugar had to be extended at the behest of Government of India - neither the sugar mills becomes `Storage and Warehouse keeper' nor the Government of India become their client - the storage of specific quantity of free sale sugar cannot be treated as providing `Storage and Warehousing' services to the Government of India – appeal decided against revenue.
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2013 (7) TMI 744
Condonation of delay – assessee pleaded for condonation of delay of 104 days in filing the appeal – Held that:- The appeal cannot be considered as submitted by the learned Superintendent (AR) - the question of condonation of delay becomes irrelevant - the appeal has to be rejected on the ground of delay and merits - The question of considering the stay application also does not arise - Commissioner (A) could not have condoned the delay at all - the question of entertaining the appeal before the Tribunal also does not arise as held in SINGH ENTERPRISES Versus COMMISSIONER OF C. EX., JAMSHEDPUR( 2007 (12) TMI 11 - SUPREME COURT OF INDIA) – appeal decided against assessee.
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2013 (7) TMI 743
Interest on delayed refund claim - First appellate authority held appellant not eligible for interest - Held that:- Following previous decision in assessee's case in NIRMA LTD. Versus COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD [2011 (3) TMI 1257 - CESTAT, AHMEDABAD] - Decided in favour of Assessee.
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2013 (7) TMI 742
Validity of show cause notice – assessee was engaged in the activity of Consulting Engineer's Service' to M/s Ispat Industries Ltd. during the period 1999-2000 – Held that:- There is no valid show cause notice against the appellant towards any service tax demand - the entire proceedings are vitiated and consequently the order passed against the appellant is not sustainable in law - there is no demand from the appellant towards any service tax liability - Without issue of a notice, no order can be passed against the appellant - in the show cause notice, the demand for service tax has been made against assessee as the recipient of the services - there is no mention of the appellant anywhere in the body of the show cause notice and only at the beginning, the appellant's name figures –appellant was not heard and personal hearing was granted only to the recipient of the service - demands were dropped - appellant had rendered services in relation to installation, commissioning and erection. ‘Erection, Installation and Commissioning Service' came into the tax net only w.e.f July, 2003 whereas the impugned demand pertains to the period 1999-2000 – appeal allowed in the favour of assessee
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2013 (7) TMI 741
Condonation of delay – assessee provided the services of ‘Consulting Engineer's Service' and the demands were made along with interest – assessee pleaded for condonation of delay - Held that:- Delay cannot be condoned mechanically merely because government or its wing is a party before the Court - it is not the length of the delay but the adequacy of the explanation for the delay that is relevant criteria while considering the COD application - Ignorance of law is not an excuse - In the absence of plausible and acceptable explanation, government cannot plea that there was no gross negligence or deliberate inaction or lack of bona fide and liberal concession has to be adopted to advance substantial justice - following the decisions in N.Balakrishnan vs. M.Krishnamurthy (1998 (9) TMI 602 - SUPREME COURT OF INDIA) and Chief Post Master General vs. Living Media India Ltd. (2012 (4) TMI 341 - SUPREME COURT OF INDIA), application for cononation rejected - decided against assessee.
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2013 (7) TMI 705
Cenvat Credit - Rule 6 - interpretation of the term "allowed" - Taking of and utilisation of credit - Revenue contended that they are distinct and different - clarification issued by the CBEC makes it clear that the assessee was allowed to take credit for the purpose of utilisation - There is no reason for interpreting the term “allow” in a narrow and restrictive manner as urged by the Revenue - the purpose and objective of CENVAT credit Rules it to allow a manufacturer/output service provider not only to take the credit but also to utilize the same for the purposes specified in the said Rules - said interpretation urged by the Revenue defeats the object and purpose of the CENVAT Credit Rules - Rules cannot be interpreted in such a way so as to make them nullity - there is no reason given as to why the word “allowed” should be interpreted in a narrow way – appeal decided against revenue
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2013 (7) TMI 704
Violation of principle of natural justice - Notice of hearing of stay application not forwarded to assessee's counsel - CIT[A] passed ex-parte order - Held that:- impugned order is unsustainable for violation of due process as the was denied a fair and reasonable opportunity to pursue the stay application, pending the substantive appeal, before the Commissioner (Appeals) and the order which directed the appellant to remit the penalty component is also unsustainable as the same was passed without adequate notice - Decided in favour of assessee.
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2013 (7) TMI 703
Taxable service to SEZ unit – refund rejected - refund claimed by the assessee as the recipient of the taxable service of Architect, Interior Decorator and Consulting Engineer services provided - Held that :- Rejection of the assessee’s claim was unsustainable - Notification No. 9/2009-ST enable claim of exemption by developers or units in SEZ by way of refund of service tax paid for services used in relation to authorized operations in SEZ - insofar as the claim for refund is filed within six months or within such extended period as the AC or DC of Central Excise shall permit - provisions of the 2005 Act are provided an overriding effect vide Section 51 - the immunity to service tax in respect of taxable services provided in relation to SEZ is a legislatively enjoined immunity - any service tax paid/ remitted by a service provider is liable to be refunded to the provider who has remitted service tax in relation to taxable services provided to the unit to carry on authorized operations in a SEZ – order set aside – appeal decided in favour of assessee.
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