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Service Tax - Case Laws
Showing 1 to 20 of 133 Records
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2014 (3) TMI 1160 - SETTLEMENT COMMISSION, CUSTOMS, CENTRAL EXCISE, AND SERVICE TAX, MUMBAI
Maintainability of Settlement Commission application - Service Tax returns was not filed in time - Benefit of belated filing of ST-3 returns - Section 32E of the Central Excise Act, 1944 - Manpower Recruitment Agency and Management Consultancy services - levy of service tax - difference of opinion - majority order.
HELD THAT:- It is observed that the applicant had not filed the prescribed ST-3 returns consequent to obtaining registration with the Service Tax Department. The returns for the entire disputed period were filed only on 14th March, 2013, after investigations regarding alleged tax evasion had started. Filing of such [late] tax returns cannot be termed, as filing ‘in the prescribed manner’ under Section 32E, in terms of various judgements/orders
The payment of late fee for belated filing of Service Tax returns, even though prescribed under Section 70 of the Finance Act read with Rule 7C of the Service Tax Rules, 1994, it does not alter the basic character of the tax return filed i.e. late tax return.
It is only that the penal liability initiated under Section, abates in … an event. The ST-3 returns filed late, therefore, do not fulfill the basic condition under Section 32E(1) of the Central Excise Act, 1944, that the applicant has filed returns in the prescribed manner. The application filed by the applicant is, therefore, liable to be rejected.
In view of the majority decision of the Member, Shri A.K. Prasad and the Vice-Chairman, Shri Vineet Kumar, holding that the present application filed by M/s. A.G. Technologies Pvt. Ltd. is not admissible under Section 32E of the Central Excise Act, 1944, as made applicable to Service Tax, the same is rejected.
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2014 (3) TMI 1125 - CESTAT BANGALORE
Demand of Service Tax - Management, Maintenance and Repair Service - Information Technology Software Service - demand of Interest on belated payments - Held that:- None of the submissions have been considered in detail by the original adjudicating authority. The figures submitted have not been accepted on the ground that the appellants did not furnish chartered accountant’s certificate which they had promised to furnish - the chartered accountant’s certificate is dated 01.12.2012 whereas order-in-original is dated 03.11.2012. Obviously the chartered accountant’s certificate was not available to the Commissioner and he was handicapped.
The submission that maintenance of software was not liable to service tax till 16.05.2008 has also not been dealt with. Similarly the submission that services rendered to SEZ are not liable to service tax has not been taken into account on the ground that the chartered accountant’s certificate was not sufficiently detailed or did not give necessary details.
The matter is remanded to the original adjudicating authority for fresh consideration of all the issues - the Commissioner is directed to deal with all the submissions that are made - appeal allowed by way of remand.
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2014 (3) TMI 1117 - BOMBAY HIGH COURT
Withdrawal of petition - Held that: - In the light of statement of petitioner and subsequent developments, the writ petition is allowed to be withdrawn - petition dismissed as withdrawn.
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2014 (3) TMI 1094 - CESTAT BANGALORE
Waiver of pre-deposit - Non-payment of service tax - financial difficulty - Held that: - in view of the fact that the appellants have accepted the liability, they are required to deposit the entire amount of tax with interest and a portion of penalty even though financial difficulties also pleaded but not supported by evidence - Subject to compliance of above deposit with cost of condonation, there shall be waiver of pre-deposit and stay against recovery in respect of the balance dues during pendency of the appeal.
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2014 (3) TMI 1092 - CESTAT NEW DELHI
Manpower Recruitment agency service - Valuation - inclusion of value of Provident Fund and other statutory dues - the appeals are covered against the appellants/assessees and in favour of Revenue, vide the final order of this Tribunal in M/s. Neelav Jaiswal & Brothers v. CCE, Allahabad [2013 (8) TMI 147 - CESTAT NEW DELHI] - appeal dismissed for reasons alike as recorded in the judgment in Neelav Jaiswal & Brothers.
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2014 (3) TMI 1081 - CESTAT AHMEDABAD
Waiver of pre-deposit - demand on the ground that the appellant had not discharged the Service Tax liability on the rent received by them for leasing the vacant land to various parties - Held that: - for the period prior to 1-7-2010, wherein the appellant has executed a lease deed of the vacant land under their control and the amount received by them as lease rent, seems to be prima facie out of the purview of the tax under the category of renting of immovable property - amendment brought in from 1-7-2010 is not indicated as of retrospective nature - pre-deposit waived - appeal allowed - decided in favor of appellant.
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2014 (3) TMI 1079 - CESTAT MUMBAI
Levy of tax - charter hire agreement with Hazira Port Pvt. Ltd. for supply of vessels for undertaking various operations in the port - Supply of Tangible Goods for Use Service or port service - Held that: - In similar circumstances, in the case of Vikram Ispat [2008 (5) TMI 44 - CESTAT MUMBAI], this Tribunal took the view that the activity is one of ‘supply of tangible goods for use’ and not ‘port services'.
The purpose of creating a omnibus entry as ‘port services’ was to bring within one service the various activities rendered therein so as to minimize the disputes regarding classification. Therefore, to qualify as a port services, the activity rendered should be a taxable service first. If an activity per se is not a taxable service, it cannot be brought under ‘airport services’ for the purpose of taxation as it would create discrimination between services rendered within the airport area and services rendered outside the airport area - prior to 16-5-2008, the services rendered by the appellant by way of charter of hire of vessels to HPPL would not qualify as ‘port services’.
Appeal allowed - decided in favor of appellant.
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2014 (3) TMI 1065 - CESTAT NEW DELHI
Demand alongwith interest and penalty - reverse charge mechanism - appellant remitted commission to overseas commission agents for facilitating its export sales during July 9, 2004 to March 31, 2006 - Held that:- the Supreme Court in [2009 (12) TMI 850 - SUPREME COURT OF INDIA] has dismissd the judgment of the High Court in the case of Indian National Shipowners Association vs. UOI [2008 (12) TMI 41 - BOMBAY HIGH COURT] and has confirmed the position that a service recipient in India is liable to remit service tax for taxable services received from abroad only from 18.4.2006, after introduction of Section 66A in the Finance Act, 1994. Therefore, in view of the same the tax, interest and penal liability assessed by the primary authority and confirmed in the impugned Order-in-Appeal by the Commissioner (Appeals), cannot be sustained. - Decided in favour of appellant
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2014 (3) TMI 1063 - CESTAT NEW DELHI
Cenvat credit - construction of residential colony near the factory as also of cleaning services obtained for the residential colony and guest house - by following the decision of Hon’ble High Court of Andhra Pradesh in the case of CC & CCE vs. ITC Ltd. [2011 (11) TMI 516 - ANDHRA PRADESH HIGH COURT], the above services are cenvatable input service. - Decided in favour of appellnat
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2014 (3) TMI 1032 - CESTAT MUMBAI
Refund claim - Reversal of cenvat credit at the time of getting the refund claim - Whether reversal of cenvat credit at the time of getting the refund claim amounts to non-availment of cenvat credit if the appellant is 100% Export Oriented Unit, exporting the goods manufactured and not clearing it in Domestic Tariff Area- Held that: The appellant is 100% EOU and not clearing any goods in DTA and, therefore, there is no possibility for them to avail the cenvat credit. Further, they have reversed the cenvat credit before the refund was actually granted to them. Therefore,in view of the decision of the Hon’ble Allahabad High Court in the case of Hello Minerals Water (P) Ltd. vs. UOI reported in 2004 (7) TMI 98 - ALLAHABAD HIGH COURT and Mumbai Tribunal’s decision in the case of Sagar Twisters vs. CCE, Mumbai reported in 2005 (5) TMI 144 - CESTAT, MUMBAI, the appeal is allowed. - Decided in favour of appellant
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2014 (3) TMI 1008 - CESTAT MUMBAI
Levy of penalty u/s 78 - Suppression of facts or not - Commissioner (Appeals) dropped the penalty - Revenue wants to impose penalty under Section 78 of the Finance Act. - Held that:- in the present case the demand is within the normal period of limitation. As the earlier show cause notices were issued demanding service tax on the same grounds, therefore we find that the allegation of suppression with intent to evade payment of tax in the present proceedings is not sustainable. In view of this, we find no infirmity in the impugned order and the penalty imposed under Section 78 of the Finance Act is restored. - Decided against the assessee.
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2014 (3) TMI 989 - SC ORDER
Demand of service tax - Classification of service - Clearing and Forwarding Agents or Business Support Services - Jurisdiction of Court - Invokation of extended period of limitation - Imposition of penalty - Supeme Court found no reason to entertain the appeal filed by the assessee against the decision of Tribunal [2013 (12) TMI 1021 - CESTAT MUMBAI]; wherein Tribunal held that Since the amount collected is for various components of services, amount collected cannot be considered as including service tax and hence benefit of cum duty cannot be extended in terms of Section 67 (2) of the Finance Act, 1994 - conduct of the appellants has not been above board. Did not take registration till 2001, even after taking registration did not file returns etc., informing service tax authorities in Tamil Nadu about Pune registration, all these indicates suppression of facts as also contravention of law with willful intention to evade payment of duties.
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2014 (3) TMI 987 - CESTAT AHMEDABAD
Denial of CENVAT Credit - Rent a cab service - Held that:- As the period involved in this appeal is before 1-4-2011 and the lower authorities are bound by the circular issued by C.B.E. & C., accordingly, the appellant has correctly availed the Cenvat credit with respect to rent-a-cab services. - appeal filed by the appellant is allowed with consequential relief, if any - Decided in favour of assessee.
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2014 (3) TMI 986 - CESTAT AHMEDABAD
Denial of CENVAT Credit - construction of godowns - Held that:- Adjudicating authority has relied upon the amendments made to the definitions to input services under Rule 2(l) of the Cenvat Credit Rules, 2004 to hold against the appellants. On perusal of the said amendment, I find that the said amendment was brought into statute w.e.f. 1-4-2011, and the period involved in both these appeals is prior to the said amendment, I am of the view the amendment would not apply in the case in hand. - Impugned orders are set aside - Decided in favour of assessee.
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2014 (3) TMI 985 - CESTAT MUMBAI
Denial of refund claim - storage and warehousing services - Bar of limitation - TR6 challan submitted by the appellant did not reflect the refund amount - Held that:- appellant have filed refund claim in time as the date of merger is with effect from 1-4-2004, which was ultimately decided on 30-4-2007 and refund claim is filed within a year i.e. 24-12-2007. Further, I find that both companies have amalgamated their merger. Hence, M/s. IBP Ltd. and appellant are the same legal entity. Therefore, they are entitled for refund claim. - Decision in assessee's own previous case [2011 (3) TMI 187 - CESTAT, CHENNAI ] followed - Decided in favour of assessee.
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2014 (3) TMI 984 - CESTAT NEW DELHI
Denial of CENVAT Credit - Capital goods - services availed for setting up of the factory - Held that:- It is only with effect from 1-4-2011 by amendment to the Rule 2(l) that words ‘setting up’ were omitted. The period of dispute in this case is from 2008-2009 to 2009-2010 i.e. the period prior to 1-4-2011 when the definition of “input service” specifically included the services used in relation to setting up of the factory or premises of the provider of output service. Thus the services, in question, used for setting up of factory have to be treated as input service and would be eligible for Cenvat credit, as the factory has been setup for manufacture of final products which are liable to Central Excise duty. Therefore denial of Cenvat credit, in question, is contrary to the provisions of Rule 2(l) of Cenvat Credit Rules, 2004. We find that the same view has been taken by the Tribunal in the case of Bellsonica Auto Component India Pvt. Ltd. (2014 (3) TMI 876 - CESTAT NEW DELHI) and also in the case of Madhusudan Auto Ltd. (2011 (4) TMI 554 - CESTAT, NEW DELHI). The impugned order, therefore, is not sustainable - The same is set aside - Decided in favour of assessee.
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2014 (3) TMI 982 - CESTAT MUMBAI
Waiver of pre-deposit - Business Auxiliary Service or GTA Service - Held that:- Applicant was providing various services under different Agreements entered with M/s. Maharashtra State Power Generation Co. Ltd. and M/s. Karnataka Power Corporation Ltd. and other service recipients. - In respect of the demand which is confirmed denying the benefit of Notification No. 32/2004-S.T., we find that in the show cause notice, the demand was made on the ground that the applicant had provided Business Auxiliary Service and the adjudicating authority treated the same as GTA Service and denied the benefit of the Notification on the ground that the applicant had not fulfilled the conditions of the Notification. As per the terms and conditions of the Agreement the applicant had arranged the transportation and the applicants are not having any trucks, dumpers, tippers etc. and the applicants arranged the same from various transport agencies. The applicant being service provider had not availed any credit in respect of capital goods credit or inputs credit for providing the taxable service. - demand is confirmed on the ground that the applicants are providing Business Auxiliary Service. The applicants relies upon various terms and conditions of the Agreement entered into with the recipient which prima facie shows the activity undertaken by the applicant is GTA service. - prima facie the applicant had not made out a case for waiver of pre- deposit of the amount - Partial stay granted.
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2014 (3) TMI 947 - CESTAT MUMBAI
Period of limitation for filing an appeal before Commissioner (Appeals) - Whether the order of dismissal of appeal is time barred by the Commissioner (Appeals) is correct in the eyes of law or not - Held that:- They have received the order on 14.02.2013. As they have not received the order before that, and the case law relied by the appellant in Wellman Hindustan Ltd. (2009 (6) TMI 664 - CESTAT, MUMBAI) where the copy of the order was tendered physically and same was received by someone. Same is the contention of the appellant in the matter in hand, and in support of the same, they have filed an affidavit. When an affidavit has been filed by the appellant and same has not been contravened by the department, affidavit is having an evidential value. Accordingly, I hold that appeal is filed by the appellant within time - Matter remanded back - Decided in favour of assessee.
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2014 (3) TMI 946 - CESTAT NEW DELHI
Demand of service tax - Rent a cab service - Held that:- Though the service tax on rent-a-cab has been introduced since 16.07.1997 and the period of dispute in this case is 2002-2003, it is seen that the contract of the BSNL with the respondent is silent about service tax and as such, it is not in dispute that BSNL were not paying service tax to the respondent along with the vehicle hire charges. Moreover, during the period of dispute, there was confusion on the point as to whether service tax under the Heading Rent-a-Cab Scheme Operators Service under Section 65(105)(o) read with Section 65(91) and 65(20) & 65 (71) would be attracted when vehicles are supplied along with drivers and the charges are on the basis of distance travelled by the vehicle, as the Tribunal in the case of Kuldeep Singh Gill reported in [2005 (5) TMI 353 - CESTAT, NEW DELHI] has held that in such a case, when the vehicle supplier is paid on the basis of distance as per rate sheet, service tax under rent-a-cab operator’s service would not attracted.
When there was lack of clarity about the scope of the rent-a-cab operator’s service covered by Section 65(105)(o) and the respondent in this case is an individual who in terms of his contract with BSNL was supplying vehicles and charging for the same on kilometer basis and when the respondent’s contract with BSNL did not mention any service tax, and this is not case a case where the Appellant as service provider while collecting the service tax from the BSNL did not pay the same to the Government, it cannot be said that the respondent was aware of the service tax liability and had deliberately evaded the payment of tax. Therefore, we do not find any infirmity in the impugned order waiving the penalty on the respondent under Section 80 of the Finance Act, 1994 - Decided against Revenue.
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2014 (3) TMI 945 - CESTAT AHMEDABAD
Denial of refund claim - Refund on monthly basis as per the provisions contained in Notification No.5/2006-C.E.(N.T.) dt. 14.03.2006 and refund claims for the period April 2007 & May 2007 - Held that:- It is evident from the above provisions that refund claims under this notification are required to be filed once in a quarter. However, a proviso is also existing that is case of EOU such refund claims may be submitted for each calendar month. The word used in the relevant proviso is 'may' and not 'shall' which means that EOU's are given an additional facility that such refund claims could be filed on monthly basis. But such a proviso does not exclude EOU's from the fact that quarterly refund claims under the notification cannot be filed by them. Commr.(A) order to that extent is required to be set aside.
Whether non filing of monthly refunds will make such refund claims time barred under Section 11B of the Central Excise Act, 1944 - Held that:- Commr.(A) has not discussed this aspect at all and has only held that refund filed by the appellant is time barred. It is observed from the main body of Notification No.5/2006-C.E.(N.T.) dt. 14.03.2006 that the same is issued under Rule 5 of the Cenvat Credit Rules, 2004 and does not link this refund procedure in any way to the provisions of relevant date under Section 11B of the Central Excise Act, 1944. No time limit has been prescribed in this notification also as to within which time the refund claims (monthly basis or quarterly basis) are required to be filed. In view of the above and the case laws relied upon by the appellant, it has to be held that time limit prescribed under Section 11B of the Central Excise Act, 1944 will not be applicable to the refund claims filed under Notification No.5/2006-C.E.(N.T.) dt. 14.03.2006 which is issued under Rule 5 of the Cenvat Credit Rules, 2004 - Decided in favour of assessee.
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