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Service Tax - Case Laws

Showing 81 to 100 of 146 Records

• 2013 (7) TMI 427
  

  Rent a cab service – scheduled rate contract - department contended that the vehicle was given to National Fertilizer Limited (NFL) thus tax liability does not diminish – held that:- there is no condition of providing of vehicles on term basis to NFL but was on call basis i.e. one hour from booking time for local duties and with suitable notice time for outside journey. - there was only a permanent arrangement of providing transport service without renting the vehicles - there is no condition of providing of vehicles on term basis to NFL but was on call basis - Without running or without any call or demand no service was available to NFL – decide against the department.

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• 2013 (7) TMI 426
  

  Period of limitation - Proof of delivery of show cause notice - Non-discharge of Service Tax on air travel agent services – Held that:- none of the entries pertain to the dispatch of the said OIO - not relevant for the purpose of verification - appellant’s request under RTI was for providing the copy of the dispatch register for the year 2008-2009, while the lower authorities have provided him a copy of dispatch register for the year 2009-2010 - investigation report of the ld. Commissioner also indicates that they could not trace the dispatch records for the period December 2008 to January 2009 – lower authorities have not considered the merits of the case - matter remanded back – appeal allowed in the favour of the assessee

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• 2013 (7) TMI 425
  

  Stay - extension of time for making pre-deposit – Held that:- There was no valid reason for granting the extension - illness of the appellant is just a rhetoric and the same is not supported by evidence – earlier also the appellant had took the grant for extension on medical grounds - appellant did not represented before the Bench despite notice – appeal decided against the assessee.

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• 2013 (7) TMI 396
  

  Management, maintenance and repair services – appellant contended that notification no. 24/2009-ST dated 27/07/2009 exemption was provided for whole of the service tax leviable thereon under section 66 and section 97 - exemption has been given retrospective effect for the period from 16/06/2005 to 26/07/209 – Held that:- When the impugned order was passed, the retrospective amendment had not come into force - the matter needs to be remanded back to the adjudicating authority for extending this exemption and re-computation of demand.

  Benefit of exemption for runways –Held that:- Benefit of exemption available to maintenance/repair of roads will not be available in respect of such activities carried out in respect of runways - According to International Civil Aviation Organization (ICAO) ‘runway' is defined as “a rectangular area on a land aerodrome prepared for the taking off of aircraft” - as per the definition ‘runway' is only a rectangular strip of land for landing or taking off of aircrafts - By no stretch of imagination, the runway can be constructed as a road or as a species of a road - in the case of runways public access is prohibited and it is only meant for landing or taking off of the aircrafts - thus runway cannot be considered as a road.

  The specific exemption for maintenance or repair of roads by the legislature retrospectively clearly shows that the said activity is a taxable activity and, therefore, in public interest the same has been given exemption. If the activity was not taxable ab initio, there was no need for the legislature to pass a specific legislation for this purpose. This also shows that the reliance placed by the appellant on the various case laws in this regard does not support the contentions raised by the appellant.

  As regards the claim of the appellant that in respect of runways constructed in defence airports, the benefit of retrospective exemption under section 98 of the Finance Act, 2012 would be available, this aspect needs consideration by the adjudicating authority as this issue had not been raised or considered by the said authority.

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• 2013 (7) TMI 395
  

  CENVAT credit – input service - assessee is into the activity of manufacturing of water treatment plant - whether assessee was eligible to CENVAT credit on service tax paid – Held that:- Appellants are engaged in manufacture of water treatment plants and installation, erection thereof, the service obtained in relation to parts and equipments should be treated as output service also - main requirements for claiming credit is that the invoice/bill/challan should have been issued after 14.05.03 and input services should have been received and consumed in relation to rendering of output service – appeal decided in the favour of the assessee.

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• 2013 (7) TMI 394
  

  Refund claim on double payment – period of limitation - whether assessee would be eligible for claiming refund of service tax when he had mistakably paid the same twice – the demand of the assessee is beyond the period of one year - Court relied upon the decision of CCE, Pune-III V/s Beharay & Rathi Constructions 2008 (12) TMI 95 - CESTAT MUMBAI - Held that:- Service Tax paid when it is not due, can be claimed as refund within time limit as prescribed in Section B - the request of the appellant that if the refund cannot be allowed, they may be allowed to carry forward the amount as a credit, also cannot be accepted as it would virtually amount to refund – appeal decided against the assessee.

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• 2013 (7) TMI 393
  

  Input Service Distributor (ISD) – assessee was an authorized distributor of two and three wheelers - whether the assessee would be covered under the category of input service provider – Held that:-The sales office of the assessee is an office – he being a service provider and that the sales office is an office of the service provider - definition indicated that it is to be an office of the manufacturer or producer of final products - assessee would be entitled for the credit taken by one of the service stations based on the credit distributed by the ISD – appeal decided against the department.

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• 2013 (7) TMI 370
  

  Cenvat Credit - Input Services - Rule 2(l) - Business support services - Input to be integrally connected with business of manufacture of final product – Held that:- As per decision in the case of CCE, Nagpur vs. Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT] - The criteria for coverage of input services is that the same is integrally connected with business of manufacture of final product and the scope of the definition being very wide, the same would cover services not only used directly or indirectly in or in relation to the manufacture of final products, but also various services used in relation to business of manufacture, whether prior to manufacture or after manufacture . The definition of input service seeks to cover every conceivable service used in business of manufacture.

  Similarly, in the case of Coca Cola India Pvt. Ltd. vs. CCE, Pune - III reported in [2009 (8) TMI 50 - BOMBAY HIGH COURT], it stands held that the term business appearing in the definition of input service cannot be given a restricted definition. - Decided in favor of Assessee.

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• 2013 (7) TMI 366
  

  Research fee - service tax on sharing of expenses - inclusion in value – Held that:- When a service provider charges a consideration, he takes into account all the expenses incurred by him and includes an element of profit – thus expenses are an integral part of the consideration charged - It may also happen that when the market is down the service provider may not be able to make any profit but may be rendering the service at a loss - that does not mean that the amount received is not a consideration for the services rendered - Service tax is not a tax on income or profits but a tax on provision of service - Whatever amount is charged for such provision service tax is payable irrespective of whether any profit is made by the service provider in the said transaction.

  Market Research Services – assesse contended that the service provided does not come under the category of ‘Market Research Services' as they do not pertain to any product, service or utility - Held that:- Research on equity is a product research - the term Market Research Agency was defined in section 65(69) We are of the view the equity research undertaken by the appellant falls within the scope of this definition and accordingly - appellant conducted equity research and prepared reports on the financials of the companies listed in the stock exchanges and the stock market performance of equity shares of such companies - Equities definitely come under the categories of products and considered as goods under the Sale of Goods Act, 1934 – the appellant is prima facie liable to pay service tax on the said activity.

  Period of limitation – The assesse contended that the show cause notice for demand of service tax for the period October, 2000 to March, 2003 has been issued only in March, 2005 and hence the demand is time barred – Held that:- It is the date of knowledge that is relevant for computing the time limit – limitation period is within one year from the date of knowledge It is on record that the appellant did not inform the department of the activities undertaken in this regard any time and only in March 2004 and September 2004 they informed the activities undertaken by them to the department subsequent to the department initiating investigation on the activities of the appellant – court relied on the judgement of NIZAM SUGAR FACTORY Versus COLLECTOR OF CENTRAL EXCISE, A. P. (2006 (4) TMI 127 - SUPREME COURT OF INDIA).

  Waiver of pre- deposit – 50% of service tax demand ordered to be pre-deposited - stay granted partly.

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• 2013 (7) TMI 349
  

  Classification of service – whether appellant was providing clearing and forwarding services by handling and distribution of products – Held that:- As the assessee has not provided any of the core enumerated activities of clearing and forwarding operations, it has not directly or indirectly provided any service connected with clearing and forwarding operations in any manner to any other person - appellant is not liable to service tax under the taxable head clearing and forwarding agency - appellant was not engaged in any of the six enumerated activities which constitute clearing and forwarding operations- there is neither the conjunctive service of clearing and forwarding provided by the assessee nor either of the services of clearing or forwarding – following the decision of Larsen & Toubro Ltd. vs. CCE, Chennai reported in 2006 (6) TMI 3 - Appellate Tribunal, New Delhi) - appeal decided in the favor of the assessee

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• 2013 (7) TMI 348
  

  Business auxiliary services - The applicant claimed that the agreement for laying pipes will fall under the category of Commercial and Industrial Construction service – Held that:- After going through the agreement the court decided The agreement is specifically for manufacture of concrete coated pipes as well as for open cut river crossing which includes de-watering, dismantling the cofferdam, restoring the river bed etc.

  Waiver of pre- deposit – The court held that the case is not for total waiver of pre-deposit of the amounts involved – Thus directed to deposit an amount of 50%of the duty - On deposit of the said amount the pre-deposit of remaining dues is waived and recovery is stayed.

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• 2013 (7) TMI 347
  

  Refund of Credit on input services– appellant provided IT enabled services – they claimed refund of un utilised accumulated credit on input services – Held that:- Assessee was entitled for credit on manpower recruitment service and security agency service - ground raised by them is not valid - the recruitment of manpower for rendering the services and no further details were required by the department – appeal decided against the department.

  Court allowed the refund of credit on advertisement, housekeeping service, hiring of furniture and clearing & forwarding service - the same also should be treated as input service - Appeal decided in the favour of assessee.

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• 2013 (7) TMI 346
  

  Cenvat Credit - Rule 6(7) - input services - separate accounts - manufacture of exempted goods and for providing output services – provisions relating to dispute between 2004 to 2008 - Held that:- appellant had in fact filed their application with the Commissioner of Service Tax within the prescribed period of 6 months - had it been transmitted at once to the CCE, it would probably have been received at his end also within the said period - a person seeking the benefit of the above sub-rule (which has retrospective effect from 10/09/2004) should make an application to the Commissioner of Central Excise within a period of 6 months - the purpose of the beneficial provisions of Rule 6(7) ibid should not be defeated on the hypertechnical ground that the party’s application, though received by the department within the prescribed period, reached the Commissioner of Central Excise a day or two after such period – case remanded back to the Commissioner for adjudication – application decided in the favour of the assessee.

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• 2013 (7) TMI 345
  

  Service tax liability – appellant had received the services from the service provider who is situated abroad and the period involved is prior to 18.04.06 – the issue involved is regarding the service tax liability on the recipient of services who is situated in India and the services rendered from abroad for the period prior to 18.04.06 - Held that:- CBEC vide their circular dated 26.09.11 has clearly clarified that service tax liability on any taxable service provided by non-resident or a person located outside India, to a person in India would arise w.e.f. 18.04.06 only - In our view, the circular of CBEC and the judgment of the Apex court in INDIAN NATIONAL SHIPOWNERS ASSOCIATION Versus UNION OF INDIA (2008 (12) TMI 41 - HIGH COURT OF BOMBAY) will cover the issue in favour of assessee - to that extent the order to be set aside. - decided in the favour of the assessee.

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• 2013 (7) TMI 330
  

  Payment of service tax under wrong category – assessee contended that as per Board's clarification vide Circular No. 58/07/2003-CX (ST) dated 20/05/2003, if an assessee has paid service tax under a wrong accounting code, they should not be asked to pay the service tax again - Held that:- Appellant was not required to pay service tax again inasmuch as they have remitted their liability to the exchequer, though under a wrong accounting code - the assessee is not liable to pay service tax if he has discharged the service tax liability even though under a wrong accounting code as decided in Pepsico India Holding Pvt. Ltd. vs. Commissioner of Central Excise, Allahabad (2010 (4) TMI 521 - CESTAT NEW DELHI ) – appeal decided in the favour of the assessee.

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• 2013 (7) TMI 329
  

  Mismatched service tax liability – assessee was engaged into discharging the service tax liability under the category of Clearing and Forwarding Agent Services and Business Auxiliary Services - a show cause notice demands the service tax liability for the period 2004-05 to 2008-09 – Held that:- Adjudicating authority should be given a chance to verify the facts appellant claiming and is able to show that they had paid the entire amount of the service tax liability as demanded in the show cause notice and much more than that - the issue needs to be factually verified – matter remanded back to the adjudicating authority – appeal allowed in the favour of assessee.

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• 2013 (7) TMI 328
  

  Competency to entertain the appeal - Preliminary objection was raised by the department was that the order was passed by the JC and appeal against it should have been preferred to the Commissioner (Appeals) – Held that:- appellant appeal is not maintainable - the present appeal was filed with the Tribunal at a time when much time was left for the appellant to prefer an appeal to the Commissioner (Appeals) - According to the tenor the appellant was ill-advised - he blindly chose to go by the defective preamble to the order-in-original rather than by the provisions of the statute - Even after receipt of the corrected preamble to the order-in-original, the appellant did not care to take corrective measures - he proceeded to file the present appeal – appeal decided against the assessee.

  The plea of the learned consultant for transmitting the appeal to the Commissioner (Appeals) or for issuing other directions to the Commissioner (Appeals) cannot be accepted as we do not have equitable powers. Such a course of action can invite more appeals of this nature from ill-advised parties.

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• 2013 (7) TMI 327
  

  Construction activities – Industrial, Commercial and residential Buildings – Is service tax applicable on Builder, Promoter or Developer who builds a residential complex with the services of his own staff and employing direct labour or petty labour contractors whose total bill does not increase 4.0 lakhs in one previous year – Held that:- Liability arises in the hands of the appellants - the appellants will be eligible for Cenvat credit on services provided by the contractor to the appellants if such services were billed to the appellants and paid for by them – The actual construction activity is undertaken by the contractor for which he is liable to pay tax - Such activity is only an input service for providing services rendered by the appellants to the individual buyers of UDS in land, for constructing the flats - the entry will cover not just the activity of construction but all other activities in relation to construction of the complex - If the tax paid corresponds to the same service and amounts billed to the individual customers then the tax paid by sub-contractor cannot be more than the demand on the provider of service itself as it comes out from the facts of the case. - one third amount ordered to be pre-deposited - stay granted partly.

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• 2013 (7) TMI 299
  

  Man power supply agency - The appellant is a co-operative society, manufacturing sugar – the farmers of the area, after cultivating the crop of sugarcane, are supplying the said sugar cane to the appellant's factory for producing sugar – whether the said activity would constitute the man power supply agency supply - Held that:- The appellant has arranged only for cutting of sugarcane crop from the field of farmers who are their members – further the appellant is charging lumsum amount for the help provided by them for cutting, loading and unloading of sugarcane from the fields of farmers – thus the lumsum amount which has been charged by the appellant as for services rendered cannot be classified as man power supply agency as the same has been decided in K. Damodarareddy (supra) and Ritesh Enterprises (2009 (9) TMI 386 - CESTAT, BANGALORE). - Prima facie case is in favor of assessee – Stay granted.

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• 2013 (7) TMI 298
  

  Waiver of pre-deposit of service tax – commercial or industrial service - Held that:- As per the definition, construction of new building or civil structure or part thereof is covered under the scope of taxable service - the applicant had only undertaken interior renovation of the part of the building - Renovation as a ‘part thereof' is not mentioned in the definition under section 90(d) - pre-deposit of the dues waived – recovery stayed - stay petition allowed.

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