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Service Tax - Case Laws
Showing 81 to 100 of 233 Records
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2014 (2) TMI 761
Cenvat Credit - service tax obtained registration in different name - Input services - Nexus with business - Held that:- it is not disputed that Vishal Devgan is known as Ajay Devgan. Although the appellant has taken registration in the name of Vishal Devgan, all the activities have been performed by Ajay Devgan. This fact can be verified by the authorities concerned. Further, all these services have been availed by the appellant at the registered office. Therefore, the input service credit taken on Professional Landscape Design service is entitled as input service credit as same has been taken in respect of the business premises which is related to the activity of the appellant. - credit allowed subject to verification - Decided in favor of assessee.
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2014 (2) TMI 760
Revenue seeking adjournment - Most of the Service Tax matters involve revenue of more than Rs.1 crore. It is also informed that instructions are being sought even for stay matters where the Service Tax demand involved is Rs.1 crore and above. This would imply that except for a handful of cases, the Revenue will be seeking adjournments in almost all Service Tax matters which will certainly be detrimental to its interest and the Revenue's case will go unrepresented. In this scenario, it is imperative that appropriate and expedite decision is taken by the CBEC, so that Revenue is effectively represented.
The Registry is directed to mark a copy of this order to the Chief Commissioner of Service Tax, Mumbai, the Chief Commissioner (AR), CESTAT, New Delhi and also to the Member (Service Tax)/Member (L&J), CBE & C for appropriate action.
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2014 (2) TMI 759
Levy of penalty - renting of immovable property - Held that:- In terms of the Hon’ble Delhi High Court decision in the case of M/s. Home Solution Retail India [2009 (4) TMI 14 - DELHI HIGH COURT], it was held that the service of renting of immovable property by itself cannot be regarded as service. Subsequently, there was retrospective amendment introduced with effect from 01.06.2007 by Finance Act, 2010 and the renting of immovable property was made taxable service undo the effect of judgment of the Hon’ble Delhi High Court.
Appellant cannot be held guilty of any malafide, so as to impose penalty upon him. - penalty set aside - Decided in favor of assessee.
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2014 (2) TMI 758
Classification - Levy of service tax on advertisements being flashed on the web site without any creative work involved - Business Auxiliary Services (BAS) - Held that:- As per the appeal memorandum, service is classifiable under “sale of advertising space and time”. However, the appeal memorandum seeks to classify the said services under BAS prior to 01/05/2006. This contention of the Revenue is contradictory. If the service is classifiable under “sale of advertising space and time” with effect from 01/05/2006 which is a totally different service and which has not been carved out of BAS, the Revenue cannot contend that the same should be classified under BAS prior to 01/05/2006 - It is a settled position of law that when the new entry is created so as to bring the activity under the category of taxable service, it is implied that the said activity was not taxable prior to inception of the new entry. - No demand - decided against the revenue.
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2014 (2) TMI 757
Waiver of pre-deposit - Commercial and industrial service - construction of schools, hostels, hospitals - Held that:- some of the works executed by the petitioner during the period such as towards house construction or repairs of residential flats may perhaps fall outside the scope of CICS. - petitioner failed to discharge its obligations as an assessee by responding truly and fairly to the show cause notice by filing adequate pleadings supported by the evidentiary material, indicating and supporting its claim for exclusion from the liability to service tax for having provided CICS. - say granted partly.
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2014 (2) TMI 756
Demand of service tax - Tax not paid on freight charges - Held that:- It is seen that they discharged service tax liability on the same mode of transport exceeding Rs.1,500. Prima facie, the contention of the learned counsel that the tax is not payable as it was discharged by the individual truck operators between Rs.750 and Rs.1,500 is not acceptable. The contention of the learned counsel regarding the demand is barred by limitation would be looked into at the time of hearing of the appeal in detail. In view of the above, the applicant is directed to deposit Rs.12,00,000 within a period of six weeks and report compliance on 1.5.2013. Upon such deposit, predeposit of the balance dues stands waived and recovery stayed till the disposal of the appeal - Decided against assessee.
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2014 (2) TMI 755
Waiver of pre deposit - Service Tax liability - Held that:- Appellant has provided the services on which the Service Tax liability has not been discharged - Prima facie case not in favour of assessee - Conditional stay granted.
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2014 (2) TMI 754
Waiver of pre-deposit of Service Tax - Penalty u/s 77 & 78 - Demand of differential amount of Service Tax - Bar of limitation - Held that:- appellant had been filing the Service Tax returns to the lower authorities regularly. The said Service Tax returns were scrutinized by the authorities on 17.01.2008, there was a demand of short payment of Rs.87,740/-, which was immediately replied and the clarification was given by the appellant on 15.02.2008. We find that the show cause notice is issued on 02.03.2010 without giving any reasoning why there is so much time gap between 15.02.2008 to 02.03.2010 to issue the show cause notice to the appellant. In our considered view, the appellant has discharged the Service Tax liability as per law understood by him. If the authorities were of the view that he should have discharged more Service Tax liability and short paid the same, they could have called for the records within the period of limitation - Stay granted.
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2014 (2) TMI 753
CENVAT credit - Receipt of royalty - extended period of limitation - Appellant had availed the credit of service tax paid by M/s. Ghari Industries on the franchisee services provided by them. The said payment was made during the period when the application for amalgamation of the two units was pending before the Allahabad High Court. - Held that:- Admittedly, during that period, the service receiver was entitled to the credit of service tax paid by M/s. Ghari Detergent (P) Ltd. The subsequent orders of the Hon’ble Allahabad High Court allowing the amalgamation of the two units from the date of the application will not affect the appellants entitlement to the credit inasmuch as the service tax stands paid by M/s. Ghari Detergent (P) Ltd. during the same period. If the Revenues contention is accepted, then there was no requirement for payment of service tax by M/s. Ghari Industries. Revenue is silent about the service tax paid by M/s. Ghari Industries - Demand is barred by limitation. The petition for amalgamation was pending before the Hon’ble High Court and as such, it cannot be said that there was any suppression or mis-statement on the part of the appellant to irregularly avail the credit with any malafide intention. As such, we are of the view that the demand raised by invoking the longer limitation period of doubt is not prima facie justified - Decided in favour of assessee.
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2014 (2) TMI 752
CENVAT Credit - Availment of Credit in respect of structural items such as MS channels, beams etc. which were admittedly used for fabricating structural support to machinery in the cement factory - Held that:- Appellant has not been able to establish that the above structural items were components/spares/accessories of any capital goods. On the other hand, the appellant admitted before the lower appellate authority that they had used the above structural items to fabricate structural support to machinery - no prima facie case for waiver of predeposit - Conditional stay granted.
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2014 (2) TMI 713
Levy of penalty where the appellant paid entire tax liability and interest. - relief u/s 73(3) - Held that:- When provisions similar to section 73 (3) was introduced in Central Excise Act, 1944 as section 11A (2B) in the year 2001, it was clarified that these provisions are meant for encouraging immediate realization of short payments detected by audit teams so that whoever discharges the short paid tax immediately need not get entangled in protracted litigations. Therefore, unless there is a case of active suppression, provisions of Section 73 (3) should be extended. - This is view of the Karnataka High Court also in the case of CCE & ST, LTU, Bangalore Vs ADECCO Flexione Work Force Solutions Ltd. - [2011 (9) TMI 114 - KARNATAKA HIGH COURT]. - Levy of penalty set aside.
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2014 (2) TMI 712
Natural justice - adjudicating authority failed to consider the submissions made by the appellants - Business Auxiliary Service - Held that:- The Authority committed a gross error in omitting to refer to, analyse and apply the decision of the full Bench of the Tribunal in Paul Merchants Ltd. While the counsel for the appellant contends that this omission is by design; the ld. A.R. for Revenue would contend that the omission is a default and unintentional. In any event this omission is fatal; and at least amounts to casual adjudication.
An adjudicating authority, even where one is a departmental officer but is performing a judicial function, must bring to his function the minimum standards of fairness, neutrality and professionalism, in the discharge of functions. A judicial function requires a neutral appreciation of facts; due and conscious reference to the material on record; carefully and precise statement of the competing contentions and precedents if any relied upon by either party; analysis of facts; of the relevant statutory provisions and of precedents referred, followed by a synthesis of the culled out legal facts and the applicable provisions of law and the principles culled out from the precedents. Only thereupon must an adjudication record conclusions.
Failure to adhere to the minimal standards of adjudicatory discipline is a compelling inference where an adjudication authority fails to record all relevant contentions, the statutory provisions and the authorities cited; fails to analyse the facts and the law; and fails to record conclusions after following the rigour of the preceding process. The order impugned herein is in this sense a non-speaking order bereft of relevant analysis and is therefore perverse.
The respondent/adjudication authority shall record independent conclusions while disposing of the proceedings afresh.
The consequence of this casual adjudicatory approach has not only burdened the assessee with avoidable litigation but had also added to the docket load of this Tribunal. We therefore allow the appeal as above with costs of ₹ 10,000/- payable to the appellant/ assessee within two weeks from the date of receipt of a copy of this order. - Decided in favor of assessee.
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2014 (2) TMI 711
Service Tax on GTA - 75% abatement in terms of exemption notification no.32/2004-ST and its successor notification no.1/2006-ST, GTA service provider is required to declare that no Cenvat credit in respect of any inputs or capital goods has been availed by him. The respondents contention is that this requirement stands fulfilled as the challans issued by the transporter do carry such a declaration. - Held that:- There is no allegation in the show cause notice that the GTA service provider has not given the required declaration regarding non-availment of Cenvat credit by them. - there is no condition that where the recipient of GTA Service is required to pay service tax on the GTA Service received by him, for 75% abatement he cannot take any Cenvat Credit in respect of inputs, capital goods or input services used by him for his final product or output service. - 75% exemption as well as cenvat credit of service tax so paid allowed.
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2014 (2) TMI 710
Waiver of pre-deposit - classification - erection, commissioning and installation services - Held that:- the service falls within the ambit of works contract service, an independent taxable service, introduced w.e.f.1.6.2007 and is required to be classified only as works contract service, in view of the classification discipline mandated by Section 65 (A) of the Act, the amount of ₹ 26,01,012/- being the tax liability assessed on Erection, Commissioning and Installation service is unsustainable.
Insofar as Management, maintenance or repair service is concerned - The agreement between the petitioner and the Noida Authority requires the petitioner to take over the operation of DG sets and the pump houses and cater to the management, maintenance and repair of these equipment and infrastructure as well. We do not prima facie consider the operational responsibility to be the essence of the contract. The management of these movable or immovable properties is the essence of the agreement and the maintenance or repair is integral to the overall assumption of the management function. - there is no analysis on or reference to provisions of Section 65(64) of the Finance Act, which defines the taxable service of Management, Maintenance and Repair.
Stay granted partly.
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2014 (2) TMI 709
Waiver of pre-deposit - Valuation - reimbursement of expenses - Servicing and repair of two wheeler motor vehicle as an authorized service station - from 2006-2007 to 2009-2010 (upto September) - Held that:- the appellant in their invoices show the value of the service component and the value of the spare parts and consumable used separately and while pay Sales Tax/VAT on the amount charged for spare parts and consumables, the service tax is paid only on the labour/service component. - Hon’ble Delhi High Court in case of Intercontinental Consultants & Technocrop Pvt. Ltd. vs. Union of India [2012 (12) TMI 150 - DELHI HIGH COURT] has held that Rule 5 (1) to be ultra vires the provisions of Section 66 and 67 of the Finance Act, 1994. No judgment of the Apex Court staying or reversing this judgment of Hon’ble Delhi High Court or of any other high expressing a contrary view has been shown. - stay granted.
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2014 (2) TMI 708
Allowability of Cenvat credit – Construction activity – Nexus between Input and Output services – Waiver of Pre-deposit – Held that:- The word “used” is used in the definition of "inputs", "capital goods" and "input service" - The word is not used as past tense of "use" but as past participle which is an adjective to the words in question.
In the case of capital goods normally the goods arrive much earlier than it is put to use and credit of duty paid is always allowed and there is no reason why a different interpretation should be adopted for input services - The decision in CCE, Visakhapatnam Vs. Sai Sahmita Storages (P) Ltd. [2011 (2) TMI 400 - ANDHRA PRADESH HIGH COURT] followed - Input services can be allowed in such cases – thus, prima facie the assessee is able to make out a case in their favour – stay granted.
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2014 (2) TMI 707
Denial of refund claim - Whether the appellant is eligible for refund of service tax paid on ‘Courier Services’ utilized for export of motor vehicle parts for replacement under warranty - Held that:- show-cause notice itself admits that exports were made to fulfill warranty obligations and therefore at this juncture, it may not be appropriate to take up a detailed finding on the ground which was not before the original authority or the appellate authority at any time. Further when parts are supplied to fulfill warranty obligation, naturally there will be no sale proceeds. In such situations, whether Condition No. 4 is to be fulfilled or not is another issue which requires detailed consideration. Since prima facie there is no dispute that goods have been supplied free of cost and no foreign exchange was to be realized, I consider that appellant has made out a case for waiver of pre-deposit and grant of stay - Stay granted.
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2014 (2) TMI 706
Waiver of the pre-deposit - Availment of ineligible cenvat credit - Held that:- if an assessee makes the payment of the invoices which indicate service tax payable and avail the Cenvat credit, the activity or the action of service provider or not depositing the same in the Government Treasury will not bar the service recipient from taking Cenvat credit on the service tax paid, if eligible - appellant has made out a prima facie case 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 stayed till the disposal of appeal - Stay granted.
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2014 (2) TMI 705
Demand of service tax - Secretarial Service Tax under the heading Member Club and Association Service - convention service - specialised services which are nothing but recovery of charges for issuing country of origin certificate - Held that:- Except the convention service, the other two services are whether in relation to provision of service, facility or privilege to membership does not come out clearly form the adjudication order, which is a pre-requisite of the taxing entry. Prima facie, it does not appear that the impugned services are integrally connected to the membership. However, we do not express any opinion at this stage. But so far as convention service is concerned, there is already a deposit of Rs. 9,00,000/- approximately as stated by learned Counsel. Subject to verification thereof by Revenue as against the demand of Rs. 12,66,921/-, on that count realisation of the balance demand raised in adjudication shall be stayed during pendency of the appeal - Stay granted.
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2014 (2) TMI 704
Stay application - Reverse Charge - Levy of service tax on Intellectual property Rights (IPR) - Trade Mark License Agreement - whether only a registered trademark has a right under any law for the time being in force In India and whether any law other than enacted law In force In India will come within the meaning of “any law for the time being in force - Held that:- we are not in agreement with the argument of the appellant in view of Section 11(3) of the Trademarks Act, 1999 and Section 27(2) of the said Act in view of the fact that the trademark owner is legally entitled to enforce certain rights against any other person using such trademark even though the trademark Is not registered In India - Applicant directed to make pre deposit of 50% tax - Following decision of AREVA T & D (INDIA) LTD. Versus COMMISSIONER OF C. EX., LTU, CHENNAI [2013 (3) TMI 82 - CESTAT CHENNAI] - stay granted partly.
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