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Service Tax - Case Laws

Showing 161 to 180 of 233 Records

• 2014 (2) TMI 385 - CESTAT BANGALORE
  

  Waiver of pre-deposit - Stay of recovery - Scientific or Technical Consultancy Services - Reverse charge mechanism - Held that:- FTC appears to be a part of the appellant company and hence the amount spent by the appellant for R&D activities of FTC cannot form taxable value of the service in question said to have been paid to the holding company up to 01.04.2007 - Apparently, the appellant was entitled to receive payments from the foreign company for the services which the appellant was liable to provide to them under the MOU. Prima facie, on such amount, no service tax can be levied from the appellant under Section 66A - prima facie case has been made out by the appellant and hence there will be waiver of pre-deposit and stay of recovery till final disposal of the appeal as prayed for - Stay granted.

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• 2014 (2) TMI 384 - CESTAT BANGALORE
  

  Waiver of pre-deposit - Demand of service tax - Construction of residential complex service - Held that:- Factual submissions made by the assessee before the Commissioner were not supported by any documentary evidence though references were made to joint venture agreements, sale deeds and power of attorney. None of these documents was produced before the adjudicating authority and therefore that authority held against the assessee, rightly so, prima facie. We also wanted to see the relevant documents but none is forthcoming. It is in this scenario that we have stated at the outset that we have found no prima facie case for the appellant against the impugned demand - Conditional stay granted.

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• 2014 (2) TMI 383 - CESTAT BANGALORE
  

  Waiver of pre-deposit - Stay of recovery - Demand of service tax - Adjustment of excess service tax paid earlier - Held that:- Since there is no dispute that service tax has been paid, the claim for waiver can be accepted - restriction under Rule 6(3) of the CENVAT Credit Rules does not apply to utilization of CENVAT credit availed on capital goods - during the relevant periods, if we take only credit taken on inputs/input services, the availment would not exceed 20% as required under Rule 6(3) of the CENVAT Credit Rules. The excess availment has arisen only because the Department has taken into account the credit availed on capital goods also - appellant has made out a prima facie case in their favour - Stay granted.

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• 2014 (2) TMI 382 - CESTAT BANGALORE
  

  Denial of Cenvat credit – Credit on Business Auxiliary Service – Non-mention of registration number in the invoices – Waiver of Pre-deposit – Held that:- It cannot be gain said that Rule 9 of the CCR, 2004 required the invoices of the service provider to contain certain essential particulars - If such essential particulars are found in the invoices, the CENVAT credit taken on the basis of such documents cannot be denied for want of other particulars - This is the mandate of Rule 9(2) of the CCR, 2004 – following Imagination Technologies India P. Ltd. vs. Commissioner [2011 (4) TMI 406 - CESTAT, MUMBAI] - so long as tax-paid nature of service is established and input service was utilized for providing output service, credit cannot be denied on the input service on the mere ground of non-mention of registration number in the invoices - waiver of pre-deposit granted recovery stayed till the disposal – Stay granted.

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• 2014 (2) TMI 340 - CESTAT AHMEDABAD
  

  Demand of service tax - Cenvat Credit - Reverse Charge mechanism - Held that:- appellant has registered himself in association who is situated in abroad and has paid the subscription fees - if the appellant is required to pay service tax on such charges paid, he is eligible to avail Cenvat credit on such service tax paid by them, as the appellant is undisputedly a manufacturer of excisable goods - prima facie, the appellant has made out a case on this point itself for the waiver of pre-deposit of the amounts involved. Accordingly, the application for the waiver of pre-deposit of amounts involved is allowed and recovery thereof stated till the disposal of appeal - Stay granted.

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• 2014 (2) TMI 339 - CESTAT AHMEDABAD
  

  Stay application - Demand of service tax - Commercial and Industrial Construction - supply of furniture items - Held that:- prima-facie, it appears that the activities done in the present case is that certain furniture items are fixed to the concrete structure and appears to be covered under the ‘Commercial and Industrial Construction Services’. Appellant has thus not made out a case for complete waiver of the pre-deposit of amounts involved and are required to put to some conditions - Following decision of Spandrel Versus Commissioner of Central Excise, Hyderabad [2010 (5) TMI 299 - CESTAT, BANGALORE] - Conditional stay granted.

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• 2014 (2) TMI 338 - CESTAT AHMEDABAD
  

  Waiver of pre deposit - Availment of Cenvat credit - GTA services - Held that:- Since the entire disputed amount in these two appeal and the third appeal is in consequence of Cenvat credit availed suo- motto by the appellant. Appellant has made out a case for the waiver of pre-deposit of amount of interest and penalties imposed by the lower authorities. Accordingly, the applications for the waiver of pre-deposit of the amount of interest and penalties involved are allowed and recovery thereof stayed till the disposal of appeals - Stay granted.

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• 2014 (2) TMI 337 - CESTAT AHMEDABAD
  

  Waiver of pre-deposit - Ineligible cenvat credit availed - Wharfage - Held that:- appellant is also not able to produce any document regarding the credit availed of service tax paid of an amount of approximately Rs. 2 Lakhs - appellant is not eligible for Cenvat credit of service tax paid on Wharfage charges due to insufficiency of the evidences - appellant has not made out a prima facie case for complete waiver of the amounts involved - Conditional stay granted.

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• 2014 (2) TMI 336 - CESTAT BANGALORE
  

  Stay application - Waiver of pre deposit - Sponsorship service - Exigibility before 2010 - Held that:- sponsorship activities, prima facie, found to be liable to be excluded from the purview of taxable service prior to the amendment dt. 01/07/2010 to the definition of taxable service under Section 65(105)(zzzn) of the Finance Act 1994, irrespective of the profit motive if any. It is submitted that, prior to 01/07/2010, sponsorship of sports events was not exigible to service tax - Stay granted.

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• 2014 (2) TMI 335 - CESTAT AHMEDABAD
  

  Cenvat credit on various services – Invoices raised in the name of head office or other units – Waiver of Pre-deposit – Held that:- Few invoices are in the name of various other units and not in the name of head office of the appellant in Mumbai - since there is no bifurcation available - the appellant has not made out a prima facie case for complete waiver of the amount - the appellant is directed to deposit an amount of Rupees Fifty Thousands 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 334 - CESTAT AHMEDABAD
  

  Cenvat credit on Courier agency service – Waiver of Pre-deposit - Held that:- Following COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II Versus M/s CADILA HEALTHCARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT] - held in favour of the assessee up to 01.04.2008. Post 01.04.2008, the appellant could have entertained a bonafide belief that they are entitled for the credit after 01.04.2008 also, as they are availing CENVAT Credit on the Service Tax paid for the period up to 01.04.2008 - the appellant has made out a prima facie case for the waiver of pre-deposit of the amounts – Pre-deposits waived till the disposal – Stay granted.

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• 2014 (2) TMI 333 - CESTAT NEW DELHI
  

  Extension of time - Deposit of tax in installment - Delay in depositing installment - Held that:- Satisfactory cause is shown for the delay in depositing the amount by the due date. We therefore consider it appropriate to grant extension of the period for depositing the installments - Conditional extension of time granted.

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• 2014 (2) TMI 332 - CESTAT BANGALORE
  

  Cenvat Credit availed after lapse of long period - Benefit of Notification No. 12/2003 - appellant submits that the credit was utilized for payment of service tax on output service and that the benefit of Notification No. 12/2003 ST was not claimed while paying such tax on output service and therefore the utilization of CENVAT credit is unquestionable – Held that:- The issue was itself highly debatable and this debate can be had at the final hearing stage - in the invoices pertaining to output services viz. warranty services, maintenance services and installation services, the service charges and the cost of materials were separately shown and service tax was paid on the service charges and therefore it could be reasonably presumed that the benefit of Notification No. 12/2003 ST was availed by the assessee. - stay allowed partly.

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• 2014 (2) TMI 331 - CESTAT AHMEDABAD
  

  Waiver of pre deposit - Penalty u/s 76, 77 & 78 - Commission received for marketing sim cards - Held that:- The period involved in this case is from 01.04.05 to 31.03.09 and during the relevant period, there were various decisions of the Tribunal holding that the said activity of receiving commission or retaining part of the commission of sim cards would not amount to Business Auxiliary Services and no service tax liability arises. The said view stands reversed by the Hon’ble Supreme Court in the case of Idea Cellular. At this juncture, we find that the appellant could have been under a bonafide impression that they are not liable to pay service tax on the commission received on sim cards as there were various decisions in favour of the assessee on the ground of waiver of pre-deposit of the amounts involved - Stay granted.

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• 2014 (2) TMI 298 - CESTAT NEW DELHI
  

  Availment of CENVAT CRedit - Whether the appellant is entitled to avail the Cenvat credit of Service Tax paid by them where the invoices stand issue by the Service provider in the address of the appellant's head office - Held that:- where the invoices are in the name of head office or registered office, benefit of Cenvat credit cannot be denied, especially when there is no dispute about the receipt and utilization of Services - Board's Circular No.211/45/96-CX, dated 14-5-1996 clarified that Modvat credit would be available even when the invoices are in the name of Registered Office or Head Office. In the present case, I find that there is no dispute about the receipt of the Services by the appellant in their factory and about the availability of the Cenvat credit - Decided in favour of assessee.

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• 2014 (2) TMI 297 - CESTAT MUMBAI
  

  CENVAT Credit - Input service distributor (ISD) - distribution of service tax credit to the Job worker - Contravention of Rules 2(m) and 7 of CENVAT Credit Rules, 2004 (CCR, 2004) - Invocation of extended period of limitation - Held that:- the question of distribution of credit by M/s. Merck Specialties ltd. to the job-workers does not satisfy the condition that the credit is distributed to its manufacturing units. It is a settled position of law that job-workers who actually undertake the manufacturing process is the ‘manufacturer' of goods and not the supplier of raw materials.

  It is the appellants who are the manufacturers and not M/s. Merck Specialties Ltd. who has merely supplied the raw materials to be the appellants for the manufacture of the goods. It is also not in dispute that it is the appellants who are discharging the excise duty liability though on the price declared by M/s. Merck Specialties Ltd. The value on which excise duty liability is discharged is not determinative of the liability to pay excise duty or who the manufacturer - The fact that the appellants are independent job-workers and the transactions were on a principal-to-principal basis was not disclosed to the department. Thus, there is a deliberate mis-declaration on the part of M/s. Merck Specialties Ltd. in stating that the units to which they have distributed the credit are their own manufacturing units whereas the facts were otherwise. Similarly, in the declaration made to Dy. Commissioner, Belapur I Division, the appellants did not intimate that they were availing credit in terms of Rule 7 of CCR, 2004. In views of the deliberate mis-statement of facts on the part of the appellants, the invocation of extended period of time is clearly justified. Therefore, the demands are sustainable.

  Once the invocation of extended period of time is held to be correct in law, mandatory penalty under Section11AC is an automatic consequence. Therefore, the appellants are liable to penalties under Section 11AC of the Central Excise Act, 1944 - once there is a mis-statement of facts or suppression of facts, mandatory penalty is imposable - Following decision of Union of India vs. Dharmendra Textile Processors [2008 (9) TMI 52 - SUPREME COURT ] - Decided against the assessee.

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• 2014 (2) TMI 296 - CESTAT BANGALORE
  

  Export of service or not - Whether the ‘Technical Testing and Analysis’ Service and resultant report sent abroad can be considered as export of service or not – Denial of exemption Notification No. 52/2003-Cus and Notification No. 22/2003-CE - Export of Service – Waiver of Pre-deposit - Held that:- The appellants receive chemicals and materials from their parent-company, conduct testing and analysis on the same and send the report electronically to the parent-company - the parent-company receives such chemicals from various clients and sends it to the appellant and ultimately the test reports are given to the service receivers - Prima facie, unless a service receiver receives the test reports, it cannot be said that the activity of provision of service is complete - The activity is complete only when the report is sent, received by the service receiver and further action if necessary is taken by them - the appellant has been able to show a strong prima facie case in their favour and have been able to show that the service rendered by them has to be treated as an activity of export of service – Pre-deposits waived till the disposal – Stay granted.

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• 2014 (2) TMI 295 - CESTAT AHMEDABAD
  

  Waiver of pre-deposit of service tax - Commercial or Industrial Construction Services - Held that:- Since the appellant is contesting the issue on merits as well as on limitation, we consider the amount of Rs. 31.82 Lakhs deposited by the appellant as enough deposit to hear and dispose the appeal. Accordingly, the application for the waiver of pre-deposit of balance amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.

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• 2014 (2) TMI 294 - CESTAT NEW DELHI
  

  Demand of service tax - Liability of main contractor - Held that:- service tax demand of Rs.1,56,100/- has become recoverable from the appellant. The stay application is already 11 months old - Law does not postpone recovery when the liability is crystal and for belief of the appellant Revenue cannot be prejudiced. Therefore, we reject the stay application and direct the appellant to deposit entire demand within 4 weeks - Stay denied.

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• 2014 (2) TMI 293 - CESTAT CHENNAI
  

  Stay application - Waiver of pre-deposit - Demand of service tax - Construction of residential complex service - Held that:- Prima facie case not in favour of assessee - Assessee directed to make a pre deposit - Conditional Stay granted.

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