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Service Tax - Case Laws
Showing 1 to 20 of 233 Records
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2014 (2) TMI 1338
Levy of Service Tax - Chitty transaction being pursued by the parties - Held that:- The instance is accessible to 'Service Tax' as per the decision in the case of ALL KERALA ASSOCIATION OF CHIT FUNDS VERSUS UNION OF INDIA [2013 (6) TMI 53 - KERALA HIGH COURT] - petition dismissed - decided against petitioner.
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2014 (2) TMI 1320
Commercial coaching or training center – u/s 65(27) – Notification No.33/2011-ST - the decision in the case of M/s Indian Institute of Aircraft Engineering Versus Union of India & Ors [2013 (5) TMI 592 - DELHI HIGH COURT] contested - Held that: - Delay condoned - notice issued.
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2014 (2) TMI 1313
Penalty - Activity of pumping RMC - adjudicating authority considered that the disputed service was newly brought into tax net and there was confusion about the scope of the relevant entry and hence waiving of penalty was justified - Held that: - when the demand for tax itself is not sustainable, there cannot be a penalty imposed on the same matter - penalty set aside - appeal allowed - decided in favor of appellant.
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2014 (2) TMI 1310
CENVAT credit - air travel service - tour operator service - rent-a-cab service - Revenue has entertained a view that appellant should not have availed CENVAT credit since they were claiming abatement of 60% in respect of rent-a-cab service and 90% in respect of tour operator service - Held that: - the fact remains that the Commissioner has not verified the documents submitted even though he mentioned that he has taken note of the written additional submissions - instead of granting stay and postponing the final decision, it would appropriate to remand the matter to the Commissioner for the purpose of verifying whether the appellants have reversed the proportionate credit - appeal allowed by way of remand.
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2014 (2) TMI 1279
Whether the respondent, who is a sub-contractor of the main contractor of M/s. Madhya Pradesh Housing Board is required to pay service tax when the entire service tax liability stands discharged by M/s. Madhya Pradesh Housing Board? - Held that: - when the entire service tax liability stands discharged by the main contractor, there would be no tax liability to the sub-contractors - reliance placed on the decision of the case of CCE, Indore Vs. Shivhare Roadlines [2009 (2) TMI 202 - CESTAT, NEW DELHI] - appeal dismissed - decided against Revenue.
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2014 (2) TMI 1269
Whether CESTAT is justified in interpreting that the services rendered by respondent fall within the definition of Information Technology Services as provided in explanation to Section 65(19) of Finance Act, 1994 reported in [2008 (3) TMI 33 - CESTAT BANGALORE] - Held that:- we have seen the relevant portions in the contract, which have been recorded by the learned Tribunal. Upon reading the contract, it appears to us, as has been correctly held by the learned Tribunal, that the respondent is rendering such service, which will fall under the scope of ‘Information Technology Services’. When the interpretation on fact is one of the two possible views, this Court in exercise of its jurisdiction under Section 35G of the Central Excise Act, 1944 cannot be appreciated the fact. Therefore, we do not find any reason to interfere with the judgment and order of the learned Tribunal. - Decided against the Revenue
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2014 (2) TMI 1255
Validity of Tribunal's order - Waiver of pre-deposit - Non-appearance of counsel of appellant - Order passed ex-parte as there was no application for adjournment and there many adjournments before to make pre-deposit a sum being entire amount of service tax demanded - Held that:- the case was adjourned for the purpose of furnishing certain materials. However, the nature of such materials is not placed before this Court. Be that as it may, the reason assigned for non-appearance, prima facie appears to be genuine in the absence of any rebuttal for the same. Therefore, in order to given an opportunity to the assessee and in the interest of justice, we deem it appropriate that the Tribunal should hear the assessee on merits on the miscellaneous application. Therefore, the impugned order is set aside and the matter is remanded back to the Tribunal. - Appeal allowed by way of remand
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2014 (2) TMI 1254
Recovery of dues - failure to deposit the amount on the ground that appeal has been filed - Petitioner contended that the impugned notice is based or founded upon circular dated 1st January, 2013, which has been quashed and set aside by different High Courts. Also the authorities cannot proceed to recover the amount when the same is the subject matter before this Court in the earlier writ petition.
Held that:- the petitioner had an opportunity to deposit the dues as indicated by this Court and having failed to do so, there is no impediment and fetter put on the department to proceed with the recovery of the said amount. The Rajasthan High Court in the case of Manglam Cement Ltd. v. Superintendent of C. Ex. Range-III, Kota [2013 (4) TMI 102 - RAJASTHAN HIGH COURT], categorically held that mere filing of an appeal does not operate as stay or suspension of an order appeal against. The interim order sought for was refused at the admission stage. Therefore, the petitioner cannot say that the authorities are denuded of its power to take steps for recovery of the amount. The petitioner has tried to demonstrate before this Court that certain observations were made when the earlier writ petition was taken up, which inevitably suggest that the Court was conscious of the situation that the authorities shall not take any coercive measures pending the said writ petition. Though this Court finds that the department cannot take advantage of a circular, which is already quashed and set aside by the High Court, but for reasons narrated above, this Court does not intend to interfere with the said recovery notice, even if the circular appears to be non est.
Furthermore if certain event has taken place and the observation is made by the Court orally, the same Hon’ble judge can only modify/clarify or indicate the happenings of such event and not by another judge or the higher forum. Since there is no interim order passed by the Court restraining the department from proceeding to recover the amount, the contemplation at the behest of the department for taking measures to recover the said amount cannot be faulted with. - Decided against the petitioner
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2014 (2) TMI 1221
Painting of individual houses / flats - Works contract services - Appellant paid service tax on painting of commercial complex and residential complexes but did not paid in respect of individual houses / flats - composite contract - State of VAT has been discharged on all the painting activities including individual flats - Circular No. B1/6/2005/TRU, dated 27-7-2005 - Held that:- the most important and crucial aspect to be decided is whether painting of a building amounts to repair or maintenance. On the one hand learned counsel would submit that it amounts to repair because if the painting is not proper, cracks can develop and there can be water seepage etc. Moreover, renovation or restoration is also covered and the definition also used the word “similar services”. There could be a view that painting can be covered under renovation and restoration also as far as the walls of the building are concerned.
The stand taken by the assessee that the assessee is liable to pay Service Tax treating the painting activity as a works contract cannot be found fault with at this stage subject to detailed consideration at the time of final hearing and therefore a case has been made out for waiver. - Stay granted.
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2014 (2) TMI 1198
Legality of notice - Held that:- notice which has been issued, as we read it, is merely advisory by which the petitioner has been advised that a service tax is payable since the service which is rendered is taxable service under Section 65 of the Finance Act, 1994. The petitioner has been advised to pay service tax in order to avoid any penal action. - need not make any observation on that aspect as a notice is to be issued before determining the issue in accordance with law. - Petition disposed of.
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2014 (2) TMI 1189
Denial of CENVAT Credit - transportation of goods - whether Cenvat credit of Service Tax can be taken for the outward freight for excisable goods delivered by the appellants at the premises of their buyer M/s. Mahindra and Mahindra - Held that:- Where the place of delivery of the goods is the customer premises and the freight is borne by the manufacturer, the place of removal has to be held as the customer’s factory gate. I find that the Board has also clarified the issue vide Circular No. F/137/85/2007-CX-IV, dated 23-8-2007. Even after the amendment of the definition of “input services” with [effect from] 1-4-2008, replacing the words ‘from the place of removal’ to “up to the removal”, the place of removal get extended up to the buyers premises in case of FOR sales and as such the said amendment would not made any difference, where the sales are on FOR basis. - In the case of FOR destination sales, the ownership and risk is transferred when the seller manufacturer delivers the goods to the buyer at his premises. As such, I find no reasons to deny the Cenvat credit of Service Tax paid on the transportation of goods. - Decided in favour of assessee.
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2014 (2) TMI 1188
Denial of refund claim - Notification No. 17/2009-S.T., dated 7-7-2009 - Export of goods - Held that:- any refund claim filed beyond one year is to be dismissed as time bar. In the case in hand since there is no dispute that refund claims which has been rejected by the lower authorities has beyond limitation of one year as provided in notification the said orders needs to be upheld and I do so. - However, refund in respect of terminal handling charges allowed following the decision of [2014 (11) TMI 973 - GUJARAT HIGH COURT] - Decision in the case of COMMISSIONER OF CENTRAL EXCISE Versus AIA ENGINEERING PVT. LTD. [2015 (1) TMI 1044 - GUJARAT HIGH COURT] followed - Decided partly in favour of assessee.
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2014 (2) TMI 1187
Denial of CENVAT Credit - construction services - Held that:- Service provider had rendered the services to appellant in respect of the activities as mentioned hereinabove on the construction/erection temporary storage/godowns were during the initial period when the factory premises of the appellant was being set up and also subsequently. - If the temporary shed which has been constructed is within the factory premises and admittedly being used for storing of cement and steel, it would be only for any one of the activities as is mentioned in the definition. In my view, the definition under Rule 2(l) allow for credit of such an amount paid as Service Tax. - Decided in favour of assessee.
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2014 (2) TMI 1182
Extension of time to make the pre deposit - Held that:- indulgence was granted to the applicant to deposit the money by 30th November, 2012 and yet he failed to avail this indulgence and waited thereafter for more than one-and-half years to make this application, is enough to dismiss the application for extension of time to deposit. - So far as this application is concerned, we do not wish to extend the period to deposit the amount already granted till 30th November, 2012. It will almost amount to reviewing our order under the garb of extension which is not permissible. Had the applicant deposited the money though late and then sought its extension till the date of deposit, then perhaps, we could have considered the case for condonation of delay and extending time to deposit. Such was not, however, the case of applicant. - Decided against assessee.
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2014 (2) TMI 1181
Writ Petition Maintainable OR Not – Alternate Remedy available – Held that:- In view of decision in the case of Metal Weld Electrodes v. CESTAT, Chennai [2013 (11) TMI 240 - MADRAS HIGH COURT], Appeal is not maintainable - The petitioners are at liberty to file appeals within three weeks and the parties are directed to maintain status quo as on date till then. - Decided against assessee.
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2014 (2) TMI 1137
Valuation of goods - Goods sold in the execution of works contract of repair and maintenance - Held that:- Finance Act, 1994 is not a Commodity Taxation Law. As a result of which the goods which were deemed to be sold in the execution of works contract that shall not enter into the purview of the levy of the service tax. What that is intended by Finance Act, 1994 is levy of service tax on the taxable service provided - Following decision of CCE Vs. M/s Kailash Transformers [2014 (2) TMI 1136 - CESTAT NEW DELHI] - Decided in favour of assessee.
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2014 (2) TMI 1136
Valuation of goods - inclusion of price of goods - divisible contract of repair and maintenance - benefit of Notification no. 12/2003-ST dated 28th June, 2003 - Held that:- there was breakup of the consideration received by the respondent towards labour charges, and price of goods. This establishes that contract was divisible, and there was transfer of property in the execution of work contract of repair. - Exemption under Notification No. 12/2003-ST dated 28th June, 2003 allowed - Decided against Revenue.
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2014 (2) TMI 1133
Maintanability of appeal before High Court - Jurisdiction - what is meant by the term “determination of any question having relation to rate of duty (for service tax) or value (of service) for the purpose of assessment” - Invocation of extended period of limitation - revenue prayed to refer the matter to larger bench - Held that:- Determination of any question relating to rate of tax would necessarily directly and proximately involve the question, whether activity falls within the charging Section and service tax is leviable on the said activity. The said determination is integral and an important injunct to the question of rate of tax. In case service tax is not to be levied or imposed and cannot be imposed under the charging Section, no tax would be payable. The said determination would be direct or proximate to the issue of rate of tax, which will include nil tax, when no tax is chargeable.
The words “rate of tax” in relation to rate of tax would include the question whether or not the activity is exigible to tax under a particular or specific provision. This will be a reasonable and appropriate interpretation and will not cause or result in confusion or ambiguity regarding the appellate forum. Line between exigibility and rate of tax as propounded can be rather thin and superfluous in the present statutory context.
Prayer of the Revenue to refer the matter to Larger Bench rejected - We are bound by the decision of the Division Bench of this Court in the case of Delhi Gymkhana Club Ltd. (2009 (8) TMI 65 - DELHI HIGH COURT) and respectfully following the ratio for the reasons set out above. We shall now examined facts of each of the present appeals to decide and determine whether they are maintainable under Section 83 of the F. Act read with Section 35G of the CE Act.
In an present appeal the primary issue and question is whether Section 65(105) (r) was applicable in respect of the said activities and in case it was not applicable, no service tax was payable. The rate of tax would be “Nil”. As held above, Section 83 of the F. Act read Section 35G of the CE Act is not applicable and, therefore, the present appeal is not maintainable before the High Court. - all appeals dismissed involving similar cases - Decided against Revenue.
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2014 (2) TMI 1132
Valuation - inclusion of value of replaced parts such as HV/LT leg coils, transformer oil and other goods used in the process of repair/ maintenance of old/ damaged transformers. - Waiver of pre-deposit - Held that:- The agreement between the parties catalogues a break-up of the total cost of repair and maintenance, under several heads such as labour charges and value of items to be replaced - Tribunal in the final order passed in vide the final order [2014 (2) TMI 1136 - CESTAT NEW DELHI] and in the final order [2014 (2) TMI 1137 - CESTAT NEW DELHI] has consistently ruled that goods which are deemed to have been sold in execution of works contracts, including in the process of rendering the taxable repair / maintenance service cannot be included within the ambit of the taxable value for the service provided. The decision of this Tribunal in Balaji Tirupati Enterprises vs. CCE, Meerut-II is confirmed by the decision of the Allahabad High Court. Revenue's appeal there against was rejected in CC&CE vs. Balaji Tirupati [2014 (1) TMI 404 - ALLAHABAD HIGH COURT].
Order of Commissioner (Appeals) set aside - stay granted - Matter remanded back - Decided in favour of assessee.
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2014 (2) TMI 1130
Classification of service - GTA service or Site formation and clearance, excavation and earthmoving and demolition activity - removal of all materials in all kinds of strata with its drilling, excavation, loading, transport and dumping, spreading and dozing at specified places as per instructions of the client - Held that:- There is no evidence before us to show that transportation activity was the predominant activity, nor any attempt has been made by the appellant as to the amount received in respect of transportation activity or that transportation was predominant activity and the other activities undertaken by the appellant were ancillary to transportation. In the absence of any evidence in this regard, we are unable to accept the contention of the appellant that they are not liable to discharge service tax liability on the aforesaid activity - Penalty imposed also sustainable - Decided against assessee.
Levy of penalty - non collection of service tax from the recipient of services - Held that:- Merely because the service recipient did not pay the service tax liability initially, that would not take away/obliterate the liability on the service provider to discharge the tax. If this plea is accepted, it would make the taxable event as receipt of service tax from the recipient of the service which is not the law. The law envisages payment of service tax on rendering of taxable service and it has nothing to do with the receipt of service tax from the service recipient. Therefore, this plea of the appellant that the service-recipient did not reimburse service tax and hence the appellant did not pay service tax is not acceptable or satisfactory explanation. - Levy of penalty confirmed.
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