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Service Tax - Case Laws
Showing 61 to 80 of 146 Records
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2013 (7) TMI 553
Denial of Refund - Refund of service tax paid under Terminal Handling Charges, Inland Haulage Charges, B.L. Charges, Rail Freight and Agency Charges – Held that:- Refund of service tax paid and Charges admissible - invoices clearly show amount against THC as well as B.L.C and the service tax had been paid on these charges - the container number and Shipping bill number was also mentioned on the invoices in the name of assessee - sufficient to prove that the consignment in question was exported - Court relied upon Durhan Spintex & Holding Pvt. Ltd. Vs. Commissioner of Service Tax, Ahmedabad (2012 (8) TMI 288 - CESTAT, AHMEDABAD) - what is required to be seen was whether service tax was paid for required service under admissible category or not.
Refund of service tax paid on Rail Freight and Inland Haulage Charges – Held that:- Assessee would be eligible for the refund of the service tax paid by them under the Notification No. 17/2009-ST – court relied upon Trident Ltd. Vs. CCE Chandigarh(2013 (4) TMI 201 - CESTAT, NEW DELHI) - invoices issued by the various Rail operators clearly shows the container number and name of the assessee – decided in favour of assessee.
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2013 (7) TMI 552
Refund of CENVAT credit – assessee provided the services of Information Technology Software Services - there was no proof that two refund applications were submitted by the assessee with the Department – Held that:- The forwarding letter does not mention anything about the other two refund claims - there was no evidence of submission of the refund claim - lower authority had rightly rejected the claim for the quarter July 2009 to September 2009 as the credit of tax paid in March 2010 will not be available for refund and July 2009 to September 2009 – decided against assessee.
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2013 (7) TMI 510
Club Membership - Constitutionality of section 65(105) - laiblity for service tax - Whether services provided by the assessee club to its members would be liable to service tax - the club is rendering service or selling any commodity to its members for a consideration then whether the amounts to sale or not – Held that:- Section 65(25a), Section 65(105) (zzze) and Section 66 as incorporated / amended to the extent that the said provisions purport to levy service tax in respect of services purportedly provided by the petitioner club to its members, to be ultra vires – decided in favour of assessee.
Decision in Joint Commercial Tax Officer Vs. The Young Mens' Indian Association (1970 (2) TMI 87 - SUPREME COURT OF INDIA) and Decision of Full bench in case of Commissioner of Income Tax Vs. Ranchi Club Limited [2012 (6) TMI 636 - Jharkhand High Court] followed.
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2013 (7) TMI 509
Rejection of Refund claim - Notification No.17/2009 - The refund claim relates to an amount of service tax paid on courier services - Held that:- it is clear that receipt submitted by the courier agency does not content the details as required under the notification - finding of the Commissioner (Appeals) that the conditions mentioned in the notification were not fulfilled by the assessee was sustainable – appeal decided against assessee.
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2013 (7) TMI 508
Penalty u/s 76, 77 and 78 - Service Tax and interest was paid by the assessee after summons were issued to them and investigation were initiated against assessee - It is not their case that they have paid tax and interest on their own - provision of Section 73(3) are not applicable when ingredients of Section 73(4) are present – Court relied on Bajaj Travels Ltd. Versus Commissioner of Service-tax (2011 (8) TMI 423 - DELHI HIGH COURT ) - Held that:- Assessee were also not entitled to benefit of 25% tax amount as penalty as they have not deposited 25% tax amount as penalty within one month of receipt of the order – penalties under Section 76 and Section 78 operate in different fields and penalty under Section 76 and Section 78 are imposable – appeal decided against asseessee.
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2013 (7) TMI 507
Installation/Erection, Commissioning or Installation Service - Held that:- Installation of plant, machinery or equipment was covered in the definition from the very beginning and it is very difficult to distinguish that heating system, ventilation system & AC system is different from heating plant, ventilation plant and AC plant. - their activity was taxable prior to 16.06.2005 also and from 16.06.2005 related work of piping, ducting and sheet metal is also brought into tax net.
Extended period of limitation - whether Show Cause Notice issued to the assessee time barred – Held that:- appellants were paying service tax on the activities with effect from 16.06.2005 and filing returns. It is on record that appellants vide their letter dated 05.09.2005 submitted month wise details of all payments received by them against HVAC works for the period 01.07.2003 to 15.06.2005. Once the details of value of taxable services were available to the Department on 05.09.2005, there is no reason to invoke the extended period – decided in favour of assessee.
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2013 (7) TMI 506
Storage and warehouse charges - Assessee stopped paying service tax that there was litigation on issue storage and warehouse charges collected by them - Held that:- Once service tax has been collected from the customers, the assessee is bound to deposit the same under Section 11D of the Central Excise Act, 1944 - appellant is directed to deposit entire amount of service tax with interest after adjusting the amount already paid by them within eight weeks from today and report compliance to the original adjudicating authority who shall adjudicate the matter afresh after considering the submissions relating to exemption for storage of agricultural commodities - Decided in favour of assessee.
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2013 (7) TMI 491
Classification of service u/s 65 - whether respondents are chargeable to service tax u/s 65(28) & (29) for Erection, Commissioning or Installation service - Held that:- The metal Crash Barrier has been erected along road side for a specific purpose of road safety - the same qualifies the definition of equipments and attract Service Tax under the services of erection commissioning & equipments - erection service was brought into service tax net w.e.f 10.09.2004 - the demand was raised against the assesse for the period 23.10.2003 to 23.01.2004 - no fault in findings of the Commissioner (Appeal) that assesse were not chargeable to service tax – appeal decided against assesse
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2013 (7) TMI 490
Refund of cenvat credit - Rule 5 of CCR - Period of limitation - whether claims filed by the assessees are time barred as held by lower authorities or in time as claimed by the assesse - Held that:- All the four claims have been filed with 1 year from the date of receipt of foreign exchange and are therefore filed in time and cannot be held as time barred - for claiming refund under Rule 5 of the Cenvat Credit Rule 2004, output service is required to be exported in accordance with procedure laid down Export of Service Rule 2005 (as per condition 1 of the Appendix to Notification 5/2006) - Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006 - In case of export of Services export is complete only when foreign exchange is received in India - relevant date of export of services is date of receipt of foreign exchange – appeal allowed in favour of assessees.
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2013 (7) TMI 489
Condonation of delay - grant of stay - appeal was filed along with an application for condonation of a delay of 11 months - notice of hearing was forwarded to the address of the assessee as provided in the memorandum of appeal - notice had been returned by the postal authorities with the endorsement left – notice of condonation of delay deemed to be served – assessee failed to appear - decided against assessee.
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2013 (7) TMI 488
Penalty - Relief u/s 73(3) - whether Commissioner (appeal) is right in concluding that service tax along with interest has been paid prior to the a issue of Show Cause Notice along with some portion of interest Commissioner (Appeal) had misinterpreted – the CESTAT order and the judgement of Nischint Engineering Consultant Pvt. Ltd Vs. Commr. Of C. Ex., Ahmedabad (2010 2010 (5) TMI 90 - CESTAT, AHMEDABAD) both - Order clearly states that Show Cause Notice ought to have been issued after tax has been paid with interest - interest on delayed payment amounting to ₹ 771/was not paid before issue of Show Cause Notice (4.3.2008). - Commissioner (Appeal) was not correct in dropping penalty as requirement of Section 73 was not fulfilled - no justification in dropping the penalty - Order of commissioner (Appeal) set aside – appeal decided in favour of revenue.
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2013 (7) TMI 487
Waiver of penalty u/s 80 - liability of service tax and a penalty u/s 78 - Held that:- It is fit case for invocation of extended period as well as imposition of penalty under section 78 - section 83A only provides monetary limit for imposition of penalty and it has nothing to do with imposition of penalty – no force in the contention of the appellant that the penalty should not be levied on them since they have deposited service tax but interest has been deposited later on - CBEC’s Circular No. 137/167/2006-CX.4 relied upon by the CESTAT clearly supports the contention of the department wherein the provisions of Section 73 have been discussed - Assesse had not been able to conclusively prove that the material facts were in the notice of the department even prior to conduct of audit – appeal decided against assessee.
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2013 (7) TMI 460
Order u/s 73C - Provisional attachment to protect revenue in certain cases. - Whether order passed u/s 73C is appealable to Tribunal - Held that:- Action under section 73C is taken pending any proceedings under section 73 or 73A - During the pendency of the proceedings where service tax liability or penalty has to be adjudged, as a measure of protection of the interests of Revenue, attachment of property has been permitted under section 73C. Section 73C per se does not empower the Commissioner of Central Excise Commissioner or any other officer to determine the service tax liability or penalties. That has to be adjudged under the provisions of Section 73 or 73A or any other provisions of the law as provided for - Order passed under section 73C of the Finance Act, 1994 is not appealable to this Tribunal - Decided against assessee.
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2013 (7) TMI 459
‘Management Consultancy Service’ - the appellant has been paying service tax on the advisory services under the category of ‘Banking and Other Financial Services' and the department has accepted the same – Hel that:- Department cannot demand service tax for the previous period on the very same activity under the category of ‘Management Consultancy Services' – advisory and due diligence services on acquisition of shares in listed companies rendered to an existing organization cannot be considered to be ‘Management Consultancy Service' in relation to developing or upgrading of any working system in any organization - relying upon the judgement of HSBC Securities & Capital Markets (I) Pvt. Ltd. vs. Commissioner of Service Tax,(2008 (6) TMI 159 - CESTAT MUMBAI).
Waiver of pre deposit – strong case in the favour of the assessee – requirement of pre deposit waived – stay granted – appeal decided in the favour of the assessee.
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2013 (7) TMI 458
Refund on Port Services – whether assessee would be entitled for refund on port services - Held that:- The goods in question were exported during the period July 2008 to December 2008, the Port services availed prior to July 2008 cannot be treated as used for export of the goods exported from, July to December 2008 - port services were availed prior to period ending September 2008 - refund is not admissible considering the date of filing of the refund claim - refund of Port services is admissible when said service is received and used by the exporter for the export of said goods – appeal decided against the assessee.
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2013 (7) TMI 457
Rebate Claim - whether the appellant can claim rebate on two transactions of the service tax paid on GTA service used for transportation of goods from their factory to the port of export - Held that:- Appellant is entitled to a rebate on one of the transaction - it is not the case of the department that the lorry receipts did not tally with the export documents in respect of other essential particulars - in other words, a broad correlation is found in the case of the assessee - for the second claim of refund there is no specific reference to the input service on which rebate is claimed, let alone any nexus between the input service and the export of goods - thus the appellant has failed to establish any basis for the rebate claim – appeal decided partly in the favour of the assessee.
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2013 (7) TMI 439
Cenvat Credit - Services used by the appellant as input service were disregarded by the Adjudicating Authority - Service tax paid on such services was not allowed to be set off against excise duty liability in respect of products manufactured by it - Held that:- Not any inquiry done from the end of the service provider to ascertain the nature of service provided and whether such service was consumed either in manufacture or providing output service by the appellant - Service tax levy being destination based consumption tax - necessary for record to see the destination of service so consumed to consider admissibility of Cenvat credit claimed applying relevant tests – Appeal remanded to learned Adjudicating Authority
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2013 (7) TMI 431
Constitutional validity of levy of service tax on restaurants - Validity of sub clause (zzzzv) of clause 105 of Section 65 of the Finance Act, 1994 - Legislative competency of Parliament - Sale of food and drinks - Whether "taxes on the sale and purchase of goods" in Entry 54 of List II of the seventh schedule covers service in the light of the definition of "tax on sale and purchase of goods" under Article 366 (29A) (f) of the Constitution of India - Held that:- The supply can be by way of a service or as part of a service or it can be in any other manner whatsoever. The supply or service can be for cash or deferred payment or other valuable consideration.
The tax, therefore, is on the supply of food or drink and it is not of relevance that the supply is by way of a service or as part of a service - price that the customer pays for the supply of food in a restaurant cannot be split up - under Article 246(1) of the Constitution, Parliament has exclusive powers to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to the Constitution. As per Article 246(3), the State Government has exclusive powers to make laws with respect to matters enumerated in List II - first limb of the Article 366(29-A) says that the tax on sale or purchase of goods includes a tax on transactions specified in sub Clauses (a) to (f). It was also found that the said Article is brought in to expand the tax base which should narrow down because of certain judgments of the Court. The deemed sale is therefore brought into effect as a concept in the constitutional definition.
Very purpose of incorporating the definition of tax on sale or purchase of goods in Article 366 was to empower the State Governments to impose tax on the supply, whether it is by way of or as a part of any service of goods either being food or any other article for human consumption or any drink either intoxicating or not intoxicating whether such supply or service is for cash, deferred payment or other valuable consideration - transfer is during the course of a service and when the deeming provision permits the State Government to impose a tax on such transfer, there cannot be a different component of service which could be imposed with any service tax in exercise of the residuary power of the Central Government.
If the constitution permits sale of goods during service as taxable, necessarily Entry 54 has to be read giving the meaning of sale of goods as stated in the Constitution - service forms part of sale of goods and State Government alone will have the legislative competence to enact the law imposing a tax on the service element forming part of sale of goods as well, which they have apparently imposed - Follpwing decision of K. Damodarasamy Naidu & Bros. v. State of T.N. [1999 (10) TMI 598 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
Validity of sub clause (zzzzw) of clause 105 of Section 65 of the Finance Act, 1994 - Legislative competency of Parliament - Service in hotel, inn, guest house, club - Whether the service provided in a hotel, inn, guest house, club etc. imposed with luxury tax under State Act in terms of Entry 62 of List II can be separately assessed and imposed by the Union with service tax, invoking the residuary powers at Entry 97 of List I of the Constitution - Held that:- luxuries is an activity of enjoyment or indulgence which is costly or which is generally recognised as being beyond the necessary requirements of an average member of the society - service tax is imposed on services provided in a hotel and other similar establishments when State Legislature had enacted the Kerala Tax on Luxuries Act by exercising their legislative power under Entry 62 of List II - Amendment now made to the service tax trenches upon the legislative function of the State under Entry 62 of List II - Following decision of Godfrey Phillips India Ltd. v. State of U.P. [2005 (1) TMI 391 - SUPREME COURT OF INDIA] - Decided in favour of assessee.
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2013 (7) TMI 429
Penalty u/s 77, 78 - Petitioner failed to remit service tax within stipulated period but remitted the service tax along with corollary interest during audit by revenue and before show cause notice - Petitioner claimed immunity under Section 73 (3) - Held that:- in the absence of any circumstances justifying exclusion of this provision and invocation of provisions of Section 73 (4) of the Act, there being no such circumstances adverted to in the adjudication or the appellate order, initiation of proceedings for imposition of penalties is unwarranted - Proceedings for penalty quashed.
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2013 (7) TMI 428
Refund of claim - Claim filed beyond period of 1 year - Export - Notification No. 17/2009 - Department allowed only partial refund to assessee - Held that:- On a true and fair construction of the provisions of Notification No. 17/2009, the conclusion is compelling that several conditionalities enumerated therein are with regard to delineation of the taxable services in respect of which the exemption is applicable, the circumstances in which and the persons who are entitled/ disentitled to the claim for exemption and stage at which the exemption should be claimed; the time frame within which the claim for exemption could be presented, are all mandatory requirements for presenting a claim for exemption - No reason to fault with concurrent conclusion - Decided against Assessee.
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