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Service Tax - Case Laws
Showing 101 to 120 of 233 Records
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2014 (2) TMI 694 - CESTAT NEW DELHI
Availment of CENVAT Credit - Department was of the view that to the extent the Cenvat credit availed input services have been used in respect of trading activity, they would not be eligible for the Cenvat credit - Imposition of interest and equivalent penalty - Held that:- input services, in question, have been used in or in relation to providing the taxable output services authorised service station service and business auxiliary service and also trading activity, which was not a taxable service during the period of dispute - appellant have not been able to establish prima facie case in their favour - Conditional stay granted.
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2014 (2) TMI 668 - CESTAT AHMEDABAD
Waiver of pre-deposit of service tax - Penalty under Section 78 - Stock Broker Services - Held that:- Following decision of Saurin Investments Pvt. Limited [2009 (7) TMI 131 - CESTAT, AHMEDABAD] - Conditional stay granted.
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2014 (2) TMI 667 - CESTAT BANGALORE
Waiver of pre deposit - Demand of service tax - Quantum of service tax - Assessee agrees to service tax demand but contenst quantum of demand - Held that:- Prima facie case not in favour of assessee - Conditional stay granted.
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2014 (2) TMI 666 - CESTAT BANGALORE
Waiver of pre deposit - Demand of service tax - Industrial or commercial construction service - Held that:- For an activity to be classified as ‘industrial or commercial service’, it should be shown that it was performed to construct a complex meant primarily for commercial/industrial use. The food grain godowns constructed by the appellant for FCI, prima facie, cannot be considered to be meant primarily for commercial use - appellant has made out prima facie case against the entire demand - Stay granted.
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2014 (2) TMI 665 - CESTAT AHMEDABAD
Waiver of pre-deposit of Service Tax - Availment of CENVAT Credit of the Service Tax paid - Management Consultancy Services - Classification of service - Whether service be classified under Business Auxiliary Services - Held that:- invoice raised by M/s The Indian Hotels Company Ltd specifically states that the service tax category would be Section 65(105)(r) of Finance Act, 1994, and service would fall under Management Consultancy service. Be that as it may, we find from the Para 24 of the Order-in-Original that the adjudicating authority has proceeded on the ground that M/s The Indian Hotels Company Ltd should not have classified the services under Management or Business Consultancy service and should have discharged Service Tax liability under Business Auxiliary Service - appellant has made out a strong prima facie case in their favour - Stay granted.
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2014 (2) TMI 664 - CESTAT CHENNAI
Rectification of mistake (ROM) u/s 35C(2) of the Central Excise Act, 1944 - Penalty under Rule 27 of the Central Excise Rules, 2001 - Held that:- Held that:- Tribunal find that in the present case the points raised in the ROM application were not urged by the applicant at the time of hearing of the application and in their written submissions submitted on the date of hearing. The issue relating to the Rectification of Mistake under Section 35C(2) of the Central Excise Act, 1944 was examined by the Hon’ble Supreme Court in the case of Commissioner of Central Excise, Belapur, Mumbai v. RDC Concrete (India) Pvt. Ltd. reported in [2011 (8) TMI 25 - SUPREME COURT OF INDIA] and observed that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning - Following decision of RASHTRIYA CHEMICALS & FERTILIZERS LTD. Versus C. C. E. & S. T., LTU, MUMBAI [2013 (3) TMI 478 - CESTAT MUMBAI] - Decided against assessee.
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2014 (2) TMI 622 - BOMBAY HIGH COURT
Waiver of pre-deposit - tribunal irected to make pre-deposit of 50% of the confirmed Service Tax demand - services by imparting training in MBA Course - institution rendering for charitable purposes - Held that:- interests of justice would be served if the amount of predeposit on Commercial Training or Coaching Service is reduced from 50% to 25%, but this reduction will apply in respect of service tax payable for commercial training or coaching quantified at Rs.4,80,63,080/for the period between October 2006 to March 2012. So far as the other services are concerned, no submissions were made by the appellant before us or even before the Tribunal for dispensing with predeposit of demand. Therefore, the appellant shall deposit the entire amount of Rs.54.01 lakhs attributable to the other services.
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2014 (2) TMI 621 - CESTAT NEW DELHI
Levy of service tax on receipt of commission from M/s BSNL for selling pre-paid Sim Cards and Recharge Coupons to eventual users - Held that:- activity of purchase and sale of Sim Cards belonging to BSNL, where BSNL had discharged the full value of Sim cards, does not amount to providing Business Auxiliary Service and no interference was called for. - Decided in favor of assessee.
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2014 (2) TMI 620 - CESTAT CHENNAI
Applications for modification of Stay Order - Residential complex service - agreement to sell Undivided Share in land (‘UDS’ for short) - Held that:- we have considered cases of construction activity where counsels made submissions of similar nature that sale of UDS was registered towards the end of construction activity and hence no service tax was payable. In those case also, we called for pre-deposit of almost 50% of the tax dues. Considering such position, we do not find any reason to modify our stay order dt. 29.7.2013 in the operative part of the order.
The applicant had entered into an agreement for construction of the flats and they had collected money for construction and they are rendering services to other persons. In view of that, the contention of the learned advocate based on point of registration of UDS is not relevant. - application rejected.
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2014 (2) TMI 619 - CESTAT NEW DELHI
Cenvat Credit in respect of GTA service - extended period of limitation - Held that:- availment of Cenvat Credit in respect of GTA services and its utilization for payment of service tax on scientific & technical consultancy service has been disclosed by them in their ST-3 Returns, they cannot be accused of having suppressed any relevant facts from the department. In view of this, neither the extended period under proviso to Section 11A(1) of the Central Excise Act, 1944 and proviso to Section 73 (1) of the Finance Act, 1994 would be available to the department for recovery of allegedly wrongly taken Cenvat Credit and non-paid service tax nor the penal provisions of Section 11 AC of the Central Excise Act, 1944 or of the Section 78 of the Finance Act would be attracted. - Demand set aside - Decided in favor of assessee.
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2014 (2) TMI 618 - CESTAT AHMEDABAD
Rectification of mistake - Re-calculation of the Service Tax liability - Held that:- there is an error apparent on the face of record, in as much as the Bench had recorded clearly that the appellant had contested the Service Tax liability on the basis of value to be considered as cum-tax. To that extent, we find that there is an error apparent on the face of record in our final order. In view of this, the said error needs to be rectified in this application. Accordingly, we allow the application for rectification of mistake to correct the error apparent on the face of record - Service Tax liability, if any, on the appellant as per our Final order, needs to be re-computed based upon the amounts which have been received by the appellant from M/s GSPC and also on the evidence which will be produced by the appellant before adjudicating authority - Partial rectification made.
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2014 (2) TMI 617 - CESTAT AHMEDABAD
Rectification of mistake - Whether the assessee is having the original declaration as filed by the transporter - Copies of the transporter’s declarations were photo-copies - Held that:- declarations filed by the appellant are taken into consideration by the adjudicating authority in Order-in-Original which is recorded at Para 14.1 of the said impugned order. It can be seen from the said paragraph that the adjudicating authority has only dismissed the said declaration on the ground that they filed only photo-copies. We were of the view the adjudicating authority should have considered the declaration in proper perspective and should have arrived at a judicious conclusion - This issue cannot be raised in an application for rectification of mistake, claiming that it is a mistake apparent on the face of record and is not in consonance with the law - there is no mistake apparent on the face of record - Decided in favour of assessee.
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2014 (2) TMI 616 - CESTAT NEW DELHI
Demand of service tax - Infrastructure support service - Held that:- As regards the Service tax demand of Rs.1,45,16,699/- on the basis of alleged providing of infrastructure support service, we are of the view that an amount of Rs.67.39 lakh already paid is sufficient for the purpose of hearing this appeal.
Remaining portion of the Service Tax demand of about Rs. 2.37 crores, on the alleged providing of service of supply of tangible goods service, since there is no dispute that in respect of transaction of providing DSNG vehicles on hire to the customers, the appellants have paid the VAT, we are of the prima facie view that same would not be covered by the definition of supply of tangible goods service under section 65 (105)(zzzzj) of the Finance Act, 1994 - stay granted.
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2014 (2) TMI 615 - CESTAT AHMEDABAD
Stay application - Waiver of pre-deposit - Improper availment of cenvat credit - Cenvat credit bill of entry on which actual duty paid was nil - Held that:- appellant had reversed the cenvat credit which they have wrongly availed on being pointed out by the audit party. Subsequently they wrote a letter to the authorities stating that this was a clerical error due to which said credit was availed - there is no evidence of such non availment of the cenvat credit for discharge of duty liability. At the same time, it is the statement of the ld. counsel that in the letter they are specifically stating that this amount is discharged under Section 11A (2B) would mean that the interest may arise. The interest of liability is on the appellant needs to be considered from various angles. As regards the penalty, we find that the appellant has made out a prima facie case for the waiver of the equivalent amount of penalty imposed by the adjudicating authority on the ground that the appellant themselves have reversed the cenvat credit - Conditional stay granted.
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2014 (2) TMI 614 - CESTAT AHMEDABAD
Service Tax liability - Renting of immovable property - Held that:- Following decision of assessee's own in [2013 (12) TMI 503 - CESTAT AHMEDABAD] - Stay granted.
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2014 (2) TMI 613 - CESTAT NEW DELHI
Condonation of delay - Held that:- Impugned order was passed by Commissioner (Appeals) on 14/3/11 and received by the applicant on 5/4/11. The normal period of limitation to file the appeal expired on or around 5th July, 2011, whereas the appeals stand filed on 4th August, 2011. It is seen that vide the impugned order the lower authorities have confirmed the service tax liability and has imposed penalty on Shri Brahmadeen Dwivedi. The said Shri Brahmadeen Dwivedi had expired on 7th July, 2010. It is also seen that the appeal before Commissioner (Appeals) was filed by his son Shri Buddhasen Dwivedi, who is also absconding subsequently. After the passing of the present impugned order, the present appeal stands filed by the wife of Shri Brahmadeen Dwivedi, who is an illiterate lady and took sometime to sought legal advice for the purpose of filing of appeal by the Power-of-Attorney holder Shri Jay Prakash Shukla. In view of the above explanation, we deem it fit to condone the delay of 30 days - Decided in favour of assessee.
Stay application - Held that:- Total duty involved in both the cases is Rs. 4,88,372/- alongwith penalty of identical amount. The said duty stands confirmed against Shri Buddhasen Dwivedi, Proprietor of a Proprietary firm, in the name of Shri Brahmadeen Dwivedi. As the Proprietor had expired, the proprietary firm also stops existing with effect from the date of death of the Proprietor - Stay granted.
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2014 (2) TMI 580 - CESTAT NEW DELHI
Claim of refund of service tax paid earlier but later services were not provided by the appellants - claim of refund rejected for want of roper documentary evidence and that the same were not reflected as receivable in the balance sheet of the appellant. - Held that:- otherwise there is no dispute on the fact that the Service Tax was deposited by the appellant in advance relating to the services which were to be provided by them to M/s. DRDPL. Further, there is no dispute that the said services were actually not provided, on account of cancellation of an agreement. Consequently the appellant was not required to pay any Service Tax in respect of the Services, which were not undertaken by them.
There is also no dispute that the entire consideration received by them from M/s. DRDPL stand refunded, alongwith service tax amount. In the above scenario, denial of the refund on the sole technical ground that the same was not shown in the balance sheet, as receivable from the revenue, cannot be held to be just and fair. - Refund allowed - Decided in favor of assessee.
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2014 (2) TMI 576 - CESTAT NEW DELHI
Demand of service tax - Tax not paid for GTA service - Held that:- So far as the activity of processing logs for making veneer for the clients, since veneer is an excisable product classifiable under 48.12, the process would amount of manufacture and hence, we are of the prima facie view that same cannot be considered as service of production of goods not amounting to manufacture. Thus the service tax demand of Rs.1,45,660 does not appear to be sustainable. However, as regards the service tax demand of Rs.71,583 in respect of GTA service recipient, we are of the prima facie view that appellant would be liable to pay the same - appellants are directed to deposit an amount of Rs.17,583 within a period of 4 weeks. Compliance to be reported on 29.4.2013. On deposit of the this amount within a stipulated period, the requirement of pre-deposit of balance amount of Service Tax demand, interest thereon and penalty shall stand waived and its recovery thereof shall stand stayed during the pendency of the appeal - Decided against assessee.
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2014 (2) TMI 575 - CESTAT NEW DELHI
Waiver of pre deposit - Penalty u/s 78 - Held that:- The appellant is admittedly a GTA service provider and requires truck for providing the services. He may use his own truck or may hire the truck from independent truck owners. Such hiring of trucks by him cannot be held to be business auxiliary services. As such, we are of the view that appellant is entitled to unconditional stay - Stay granted.
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2014 (2) TMI 574 - CESTAT CHENNAI
Denial of credit on services rendered – No invoice issued in the name of assessee – Waiver of Pre-deposit – Held that:- In the matter of advertisement, CBEC had clarified that the agent who canvasses timeslots would pay service tax only on the commission earned by them - the intermediary charged service tax only on the commission and the bill raised by the Jaya TV was supplied by the intermediary and reimbursed by the applicant - there is no doubt that the input service was utilized by the them which comes out clearly from the invoices raised by Jaya TV showing that the timeslots were for advertising their brand of Birla Cement and Birla Super and therefore the minor issue that invoices raised by Jaya TV is not showing the name of the applicant should not be a reason to deny credit having regard to proviso to Rule 9 (2) of Cenvat Credit Rules – Relying upon EUPEC-Welspun Coating India Ltd. Vs CCE Vadodara [2008 (8) TMI 515 - CESTAT, AHMEDABAD] – Pre-deposits waived till the disposal – Stay granted.
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