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Service Tax - Case Laws
Showing 121 to 140 of 233 Records
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2014 (2) TMI 573 - CESTAT CHENNAI
Denial of Cenvat credit on input service - Courier service, rent-a-cab service, mandapam service and catering service – Waiver of Pre-deposit – Held that:- Following Hero Honda Motors Ltd. Vs. CCE [2011 (7) TMI 240 - CESTAT, NEW DELHI] - the applicants failed to produce any evidence to establish that the freight charges were not included in the assessable value - there is factual dispute in this case - the applicants failed to make out a prima facie case for waiver of the amount – Assessee directed to deposit Rupees ten lakhs as pre-deposit – upon such submission rest of the duty to be stayed till the disposal – Partial stay granted.
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2014 (2) TMI 539 - KERALA HIGH COURT
Filing of appeal before wrong Forum - order imposing service tax and penalty erroneously stated that an appeal would lie therefrom to the Customs, Excise and Service Tax Appellate Tribunal. The petitioner cannot therefore be faulted with for filing an appeal with the tribunal though in fact such appeal would lie to the second respondent Commissioner only.
Tribunal has adopted a hypertechnical view forgetting the fact that every endeavour should be made to dispose of the lis on merits. - The first respondent (CESTAT) shall return Ext.P2 appeal to the petitioner within a period of one month from today. The petitioner shall re-present the appeal with the second respondent Commissioner within a period of two weeks therefrom. Every endeavour shall be made by the second respondent Commissioner to dispose of the appeal on merits within a period of three months after its preferment.
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2014 (2) TMI 533 - CALCUTTA HIGH COURT
Waiver of pre-deposit - Financial Hardship - Composite and indivisible Works contract - fabrication and fixing of false ceiling inside the office premises - Held that:- Under Section 35F pre-deposit is a condition precedent for filing of an appeal. However, the requirement of pre-deposit might be dispensed on the application of an assessee - Financial hardship is undoubtedly a kind of hardship. In deciding an application for dispensation of pre-deposit, the Appellate Authority is thus required to consider the financial capacity of the assessee to make the pre-deposit. In the absence of any pleadings relating to financial position of the assessee or in the absence of documents that show financial weakness, as in this case, the Appellate Authority is legitimately entitled to arrive at the conclusion that the assessee has the financial capacity to make the pre-deposit.
It is well-settled that payment under compulsion of any amount which is not due and payable would also constitute hardship so far as the assessee is concerned, even though the assessee may be in a financial position to pay the same.
Notification dated 1st March, 2006 which has not at all been considered - t was for the Appellate Authority to consider the prima facie case in the light of Notification I/2006-S.T., dated 1st March, 2006 on which reliance has now been placed. - appeal has been dismissed for non-compliance of the direction for pre-deposit. The appeal restored before the appellate authority.
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2014 (2) TMI 532 - ANDHRA PRADESH HIGH COURT
Waiver of pre-deposit - principle of natural justice - CESTAT directed that the petitioner shall remit the entire assessed liability to the credit of the revenue - business of providing Multi-System Operator (MSO) services to the Cable Operators. - Held that:- Having regard to the admitted fact that the petitioner’s application to receive the additional evidence and additional grounds are also numbered and in fact the said applications were listed for hearing on 9-7-2013 it appears to us that the Tribunal below ought to have considered the same and passed orders thereon before taking up the Stay Application. In the facts and circumstances of the case, we find force in the submission of the learned counsel for the petitioner that non-consideration of the petitioner’s application to receive the additional evidence in spite of the fact that it is listed for hearing, caused grave prejudice to the case of the petitioner - matter remanded back to tribunal.
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2014 (2) TMI 531 - BOMBAY HIGH COURT
Recovery of Service Tax and Income Tax - Levy of Service Tax on providing of services by telecom operators to various customers - Tax deduction at source on the commission/brokerage paid by the Telecom Service Providers to distributors and by distributors to retailers. - Held that: - the services provided by cellular operators are chargeable to service tax; Pre 2012 and Post 2012; - the entire amount received by the cellular operators from the customer, including the price of SIM card, is the value of taxable service; - in the system in which the prepaid vouchers are sold, either physically or electronically, the price of such vouchers would include processing charges or administration fee, Service Tax and the price of talk time or activation charges, as the case may be; - if the break-up is not given, the entire price should be deemed as gross value inclusive of Service Tax; [see Section 67(2)] - sale of vouchers, i.e. plan vouchers, top up vouchers or special tariff vouchers, either sold physically or electronically, are not counted properly and there is no provision either in the TRAI Regulations or in the Service Tax to ensure that the entire sale of vouchers is accounted for the purposes of levy of Service Tax
The Service Tax Department needs to look at the above aspect in respect of all cellular operators to ensure that Service Tax is assessed and levied on all schemes, transactions and plans by whatever name called and under whatever schemes as long as they result in providing of service by Cellular operator to the consumer.
Regarding TDS - The commission paid by Cellular Service Providers to the distributors or retailers is thus commission from which the tax is required to be deducted at source under the provisions of Section 194 of the Income Tax Act. - Whether tax is deducted at source on such amount or not is not clear and whether such TDS is reflected in the accounts of cellular operators as well as distributors, needs to be seen. - When the commission is paid by way of additional talk time, how the same has to be treated for the purposes of tax is another angle which needs to be looked into by the Income-Tax Authorities.
It the issues which have been highlighted before the Court by the amicus curiae as noted above, would require a closer application of mind and investigation both by the Service Tax authorities and by the concerned Income Tax authorities. - a response both of the Service Tax and Income Tax authorities to the issues which have been raised before the Court would be warranted.
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2014 (2) TMI 530 - CHHATTISGARH HIGH COURT
Arrears of service tax - applicant has been arrested in connection with the offence punishable under Section 89 read with Section 90 of the Finance Act, 1994 - prayed for his release on bail or grant of temporary bail - applicant has collected service tax amounting to Rs.2.17 crores for the State and has not deposited the same to the State. - Held that:- applicant has deposited Rs.87,60,475/- and Rs.1,29,86,207/- is still due. Considering period of detention of the applicant, liability of the applicant, amount due against the applicant, grounds taken in the applications for conditional bail and undertaking, and offer of the applicant, it would be appropriate to provide one opportunity to the applicant in the light of his offer/ proposal. - conditional bail/temporary bail to the applicant is partly allowed.
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2014 (2) TMI 529 - CESTAT BANGALORE
Denial of CENVAT Credit - Availment of CENVAT credit on MS Channels, MS Plates and HR Coils etc. used in the newly constructed Block by the appellant - Held that:- appellant has deposited 50% of the duty demanded as per the stay order passed by the Commissioner (Appeals). Since this Tribunal has been taking a view that extended period may not be invokable in all cases of availment of CENVAT credit on MS Channels, Angles & Beams etc., appellants can be said to have made out a case in their favour against demand beyond the normal time limit. Accordingly, we consider that the amount already deposited by the appellant as per the stay order passed by the Commissioner (Appeals) is sufficient - Stay granted.
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2014 (2) TMI 528 - CESTAT NEW DELHI
Classification of service - incentives received for achieving targets of sales of cars - Whether its activities fall within the definition of Business Auxiliary Service - Held that:- it appropriate to grant stay of further proceedings pursuant to the impugned order, on condition that the appellant shall deposit 50% of the tax component as assessed, while granting stay of the balance of the duty component and whole of the penalty component. - stay granted partly.
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2014 (2) TMI 527 - CESTAT CHENNAI
Waiver of predeposit of penalty - Renting of immovable property - Tax was deposited after investigation - Held that:- there is no dispute of the levy of the tax. It is also noted that the applicant has collected the tax which was not deposited with the Government. The deposit was made after the Department issued summons and started investigation. Hence the applicant has failed to make out a prima facie case for waiver of the entire amount of penalty - Conditional stay granted.
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2014 (2) TMI 526 - CESTAT BANGALORE
Availment of CENVAT Credit - benefit of Notification No. 1/2006-ST dated 1.3.2006 - Penalty u/s 76 - Held that:- if the CENVAT credit is reversed subsequently also, it amounts to the credit not being taken initially. Therefore, prima facie, the subsequent reversal of CENVAT credit availed by the appellant appears to fulfill the obligation under Notification No. 1/2006-ST of not availing the CENVAT credit for entitlement to the benefit of Notification - Appellant has made out a strong prima facie case in their favour for wavier of predeposit and grant of stay - Stay granted.
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2014 (2) TMI 525 - GOVERNMENT OF INDIA
Classification - preparation of ship model of 90 mts AOPV including all appendages as per the technical data and design - assessee contended that the said service was liable to service tax under the reverse mechanism only if the service was partly or wholly performed in India. Since the said service was wholly received in Netherlands they were not liable to service tax under the reverse mechanism. - Held that:- In this particular transaction the said taxable services mentioned in Section 65(105)(zzh) can be said to have been received in India only when such services are partly or wholly performed in India. In the instant case service is performed and received only outside India i.e. in the Netherlands and there is no import of service. As such there is no taxable service. - the conclusion of the Lower Adjudicator that the service merits classification under Section 65(105)(g) - Consulting Engineer, gets set aside. - Decided in favor of assessee.
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2014 (2) TMI 524 - COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE (APPEALS), NEW DELHI
Classification of services - issuing Country of Origin Certificate - Extended period of limitation - Held that:- services rendered by the appellants towards issuing Country of Origin Certificate are classifiable under Technical Inspection and Certification Services, whereas the present show cause notice and the impugned order have classified the activities of the appellants under the Club or Association Services - Demand set aside.
Regarding Project income - services provided to United Nations Organization - exemption under notification 16/2002 ST - Held that:- UNCTAD is not covered in the list of international organizations to whom certain privileges and immunities have been granted. - Demand confirmed.
Extended period of limitation - Held that:- under the self-assessment regime of tax liability, the appellants were under obligation to correctly classify the services rendered by them and to discharge their Service Tax liability correctly. - he appellants neither got themselves registered with Service Tax nor did they discharged their Service Tax liability at all. The act of non-observance of rules tantamount to contravention of the stipulation made under Service Tax law with intent to evade payment of Service Tax - demand confirmed invoking extended period of limitation.
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2014 (2) TMI 486 - CESTAT CHENNAI
Demand of service tax on the basis of Profit and loss account figuring in Income Tax Return - Held that:- The appellant has demonstrated the reconciliation before the Tribunal by showing Bank Statement and entries dated 04-05-2008 and 03-06-2009 - In an appeal involving such a small amount and obvious explanation from the appellant there is no reason to expose the appellant to another apparently hostile round of adjudication - it is reasonable to accept the evidence and explanation submitted by the assessee - Demand set aside.
Regarding penalty u/s 78 - Held that:- this is a fit case to waive penalty in exercise of the powers under section 80. This appellant and the facts of the case cannot be considered on the same footing as the various assessees mentioned in para 10 (iv) earlier. So the penalty under section 78 is waived.
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2014 (2) TMI 485 - CESTAT CHENNAI
Demand of service tax on the basis of Profit and loss account figuring in Income Tax Return - inclusion of TDS amount - cum-duty value - The reason given by appellant is that this liability is in respect of amounts received by the appellant in the subsequent financial year on which they paid tax in the subsequent financial year - Held that:- there is some default on the part of the appellant in submitting reconciliation statement before the lower authorities though the basic reason for difference between figures in Income Tax return and ST-3 return was stated before the lower authorities. In the circumstances non-submission of reconciliation statement before lower authorities is not a sufficient reason for sending this matter involving such a small tax amount for another round of litigation. - Demand set aside.
Regarding penalty u/s 78 - Held that:- this is a fit case to waive penalty in exercise of the powers under section 80. This appellant and the facts of the case cannot be considered on the same footing as the various assessees mentioned in para 10 (iv) earlier. So the penalty under section 78 is waived.
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2014 (2) TMI 484 - CESTAT CHENNAI
Levy of penalty - de-novo adjudication order is passed by the adjudicating authority on the same matter and appellant wants to pursue appeal remedy against that order - Held that:- The right of the appellant to contest the de-novo adjudication order in all respects need not be limited because of submission made during oral hearing for withdrawal of appeal filed against imposition of penalty. It was not clear from the submission of the advocate whether the advocate was mentioning tax liability as ordered by Commissioner (Appeal) in order dated 28-09-2012 impugned in this appeal or the tax liability as determined in the de-novo order dated 06-11-2013 of the adjudicating authority. - the present appeal has become infructuous and the same is dismissed accordingly with liberty to the appellant to pursue appeal remedy against the de-novo order.
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2014 (2) TMI 483 - CESTAT CHENNAI
Cenvat credit taken against invoices dated prior to 10.09.04 - Held that:- There are clear provisions under Cenvat Credit Rules, 2004 that the new credit scheme is applicable only in respect of duties paid on or after 10-09-2004 and against invoices raised dated on or after 10.09.2004, giving a clear demarcation on time frame based on which the new scheme was to be operated.
Tribunal should not be deciding new policy by giving effect to such benefits retrospectively contrary to legal provisions and policies of the government. The decisions cited by the appellant were in the context of situations where there could be doubt regarding the scope of the legislation, and the Govt. considered it appropriate to add explanations to clarify disputes. - Decided against the assessee.
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2014 (2) TMI 482 - CESTAT CHENNAI
Cenvat Credit of service tax paid on GTA services paid on transportation of inputs to the job worker premises and transportation of goods from job worker premises to the depot of the appellant - Held that:- procedures laid down for taking credit cannot be by-passed based on argument of revenue neutrality or the argument that if not appellant someone else could have taken credit.
During the relevant time there was considerable confusion about the scope of the expression service used for ‘clearance of final products from the place of removal’ which was used in definition at Rule 2 (l) (ii) of the definition of ‘input service’ - since this issue was one of legal interpretation of rules wherein two views were possible, demand may be restricted to normal period of limitation. - Decided partly in favor of assessee.
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2014 (2) TMI 481 - CESTAT CHENNAI
Waiver of pre deposit - CENVAT Credit - Input service distributor (ISD) - nexus with manufacturing activity - trading activity - Held that:- Commissioner has not examined the service-wise eligibility for the credit involved but has only given a general finding in paras 27 & 28 of the adjudication order. The question whether the disputed input services were in relation to taxable output services or manufacturing activity is not examined. Further services like advertisement services continued to be covered by Rule 2 (l) of CCR Rules 2004 - Against the contention of the assessee, that they have had transferred only about 34.78% of the credit proportional to the turnover of manufacturing no finding is given - In view of these factors and the fact that the defects in ISD invoices are curable defects we are of the view that it is not proper to call for any pre-deposit for admission of appeal. Therefore, requirement of pre-deposit is waived and there shall be stay on collection of such dues during the pendency of the appeal - Stay granted.
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2014 (2) TMI 480 - CESTAT BANGALORE
Waiver of pre deposit - Demand of service tax - Reversal of CENVAT Credit - Held that:- Waiver and stay can be granted to the assessee inasmuch as a major part of the CENVAT credit in question was reversed by them and there is no outstanding dispute with regard to the credit of Rs.9,800 - Stay granted.
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2014 (2) TMI 479 - CESTAT BANGALORE
Waiver of pre deposit - Stay of recovery - Demand of service tax - Business Support Service - Held that:- no prima facie case for the appellant against the demand raised on them for the period prior to 10/05/2007. From the records, it appears that the consistent case of the appellant is that they were providing only BSS. This very service was a taxable service prior to 10/05/2007 also but no service tax was paid by the appellant. There is no cogent explanation for this default - Conditional stay granted.
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