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Service Tax - Case Laws
Showing 101 to 120 of 144 Records
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2014 (6) TMI 310 - CESTAT NEW DELHI
Demand of service tax - erection, commissioning and installation - composite work contract for installing a new plant that involve fabrication, erection, commissioning as well as civil work - Held that:- Service Tax is not commodity taxation. When the fabrication work is very clear from the work order, that does not submit to any taxable entry as the law exists. Had the fabrication been brought to any taxable entry, Revenue would have a case. In absence of such taxable entry, the erection, Commissioning or installation does not embrace fabrication for bringing the appellant to the fold of Section 65(39a) of Finance Act, 1994. Therefore, on such preliminary observation of the law, the appellant should succeed when paras 2 & 3 of the show cause notice has not made any effort to bring out service element involved in Sl. No. 1, 3 & 6 of the work order to the ambit of taxation - since law does not warrant the commodity to be taxed under the provision of Finance Act, 1994 - demand set aside - Decided in favour of assessee.
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2014 (6) TMI 309 - CESTAT NEW DELHI
Demand of service tax - Commercial and industrial construction service - Assessee contends that owner of the building carried out charitable activity for which the construction activity carried out by the appellant shall not be liable to service tax - Held that:- following the Board's Circular No. B2/8/2004-TRU, dated 10-9-2004 and also considering the time-bar issue pleaded, there shall be waiver of pre-deposit during pendency of the appeal - Stay granted.
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2014 (6) TMI 277 - CESTAT AHMEDABAD
CENVAT Credit - Whether CENVAT Credit of service tax paid by the appellant on repair of internal roads of the appellant’s factory was admissible to the appellant - Held that:- Lower appellate authority after going through the relevant invoice and agreement with the service provider, namely SMPS Consultants, Ahmedabad, found that work undertaken by the service provider was Carpet Seal Coat and Patch Work of internal and outside Bituminous Road of appellant’s project at Lab-Detergent Complex Alindra, and that the payment advice note dated 25.08.2008 also confirmed the same. Lower appellate authority, therefore, rejected the appellant’s appeal on this issue on the ground that the appellant had not been able to establish that the entire credit pertained to repairing of road inside the factory premises. Appellant had now produced copy of Certificate dated 06/12/2012, issued by the service provider - M/s Patel Engineers - to the effect that only internal roads of the appellant’s factory were repaired by them against appellants Work Order No. 8001005DO080400002/L dated 17/04/2008. As these papers were not produced before the adjudicating authority, therefore, the issue requires to be examined afresh to ascertain the factual position. - Decided in favour of assessee.
Whether CENVAT Credit of service tax paid by the appellant on maintenance and repair of the security vehicle used within the factory premises by the Security Agency was admissible to the appellant - Held that:- As per rule 9(1) (f) of the CENVAT Credit Rules, 2004, a manufacturer of dutiable goods can take CENVAT Credit of service tax paid on any input service on the basis of invoice issued by service provider if the input service is actually received and used, whether directly or indirectly, in or in relation to the manufacture of dutiable final products as defined in Rule 2(l) of the CENVAT Credit Rules, 2004. In the present case the appellant has two invoices date 13/10/2007, issued by Security Agency, for the years 2004 to 2006 evidencing payment of service tax on maintenance & repair of the security vehicle and reimbursement of petrol expenses, but there is nothing on record to show that the Security Agency actually carried out any maintenance or repair of the appellant’s security vehicle, as repair or maintenance of vehicles is generally undertaken by workshops/ service stations and not by a Security Agency - Decided in favour of assessee.
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2014 (6) TMI 276 - CESTAT AHMEDABAD
Levy of penalty simultaneously under Section 76 and as well as under Section 78 - amendment in Section 78 by way of insertion of the proviso with effect from 10.05.2008 - Held that:- Section 78 of the Act has been amended by the Finance Act, 2008 and the amendment provides that in case where penalty for suppressing the value of taxable service under Section 78 is imposed, the penalty for failure to pay service tax under Section 76 shall not apply. With this amendment the legal position now is that simultaneous penalties under both Section 76 and 78 of the Act would not be levied. However, since this amendment has come into force w.e.f. 16th May, 2008, it cannot have retrospective operation in the absence of any specific stipulation to this effect. Going by the nature of the amendment, it also cannot be said that this amendment is only clarificatory in nature. - penalties under both Sections 76 and 78 were imposable simultaneously on the respondents for failure to pay service tax for the period prior to 10.05.2008 although show cause notices were issued to them in the year 2010/2011. - Decided in favor of revenue.
Regarding monetary limit for filing appeal - Held that:- Amount of service tax evasion in each case is less than the monetary limit of five lac rupees. Appeals in these four cases were filed by the Revenue on 05.12.2012 when the CBEC Circular F. No. 390/ Misc./ 163/ 2010-JC dated 17.08.2011 was in force, which directed the field formations not to file appeals before the CESTAT where the amount involved is up to five lac rupees. Obviously, the Revenue should not have filed any appeal against these four persons, as the directions contained in CBEC circulars are binding on Departmental Officers - Decided against the revenue.
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2014 (6) TMI 275 - CESTAT BANGALORE
Waiver of pre-deposit - Mandap Keeper services - Sale of space or time for advertisement service - renting of immovable property service - Held that:- the income or property of the State which is immune to federal taxation under the provision of article 289 of the Constitution does not accommodate the property of a body create by a statute, such as the appellant. The property and income of the State, in Article 289, connotes the State as enumerated in the first schedule of the constitution and not every authority or body falling within the scope of an the instrumentality of the State or other authority, in Article 12 of the Constitution.
In respect of renting of immovable property, a sub-theme of the petitioners defence was also that portion of its properties were given on lease to the Director General Special Protection Force; the A.P. Women’s Commission and to the State Election Commission and these not being for or in furtherance of Commerce of Business are outside the purview of the definition of renting of immovable property in Section 65(105)(zzzz) of the Act. Clearly the enumeration of the taxable service of renting of immovable property restricts the taxable service only where such service is provided for use in the course of or furtherance of, business of commerce.
With respect to the quantum of Service Tax assessed for the petitioner having provided Mandap Keeper Service we find no prima facie case in favour of the petitioner.
There is strong prima-facie case in favour of the petitioner to the extent service tax liability is assessed for providing sale of time or space for advertisement.
Entire service tax and interest liable to be pre-deposited in respect of activities which are liable to service tax - adjudicating authority to recompute the liability - stay granted partly.
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2014 (6) TMI 274 - CESTAT NEW DELHI
Demand of service tax - Management Consultancy nor Technical Assistance Service - Held that:- Providing of enlisted service is object of the definition clause in the law. None of the authorities have looked into basic ingredients of law to come to their conclusion - In absence of any finding, contrary to the claim of the appellant, it cannot be brought to charge of providing Management Consultancy Services - Decided in favour of assessee.
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2014 (6) TMI 273 - CESTAT NEW DELHI
Waiver of pre deposit - Demand of service tax - C & F Agency services - Held that:- Original Adjudicating Authority having dropped the demand, the appellant would be entitled to stay on the above point. Nothing has been shown to us indicating that the appellants were acting as C & F Agent for the principal. On the other hand, we find that the appellants were buying and selling the goods on the basis of the invoices issued by the principal and the sales invoices/cash memos issued by them. As such, at this prima facie stage, we are of the view that the appellant has been able to make out a good case in their favour so as to allow the stay petition unconditionally - Stay granted.
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2014 (6) TMI 244 - CESTAT BANGALORE
Penalty for delayed deposit of service tax and interest - services of site formation & Clearance, Excavation & Earthmoving & Demolition services - Held that:- correspondence exchanged between the appellant and the Revenue. Its stands very clearly stated by the appellant in their various communications addressed to the jurisdictional Central Excise Officers that the service tax is not being deposited because of the delay occurring for name change in the agreement, the duty liability was accepted by the appellant and was actually deposited alongwith interest even before the issuance of show cause notice. In such scenario, we find no justification for imposition of penalty on the assessee in terms of the provisions of section 80 of the Finance Act, 1944 - Penalty is set aside - Decided in favour of assessee.
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2014 (6) TMI 243 - CESTAT KOLKATA
Waiver of service tax - ‘Management Consultancy’ service - Applicant being a premier Management Institute, provided education to the students in the area of Management - Held that:- Prima-facie, at this stage, without entering into the dispute relating to activities rendered by the Applicant whether it would result into taxable service or otherwise under the category of ‘Management Consultancy’ service, which rests on appreciation of evidence adduced by both sides ; the offer made by the ld.Sr. Advocate to deposit of Rs.42,18,396/-, in addition to the amount of Rs.68.00 lakhs (Rs.33.00 lakhs + Rs.35.00 lakhs = Rs.68.00 lakhs) already deposited, in our opinion, is sufficient for hearing the appeal. Consequently, we direct the Applicant to deposit the said amount of Rs.42,18,396/- within a period of six weeks from today and report compliance on 10.04.2014. On deposit of the said amount, the remaining adjudged dues would stand waived and its recovery stayed during pendency of the appeal - Conditional stay granted.
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2014 (6) TMI 242 - CESTAT KOLKATA
Waiver of pre-deposit - convention service - availing CENVAT Credit while availing benefit of abatement notification 1/2006 ST - Held that:- applicant has categorically claimed that they had not availed credit on input service for the period October, 2005 to March, 2007 therefore, they are eligible to abatement under Notification No. 1/06-ST dated-1/3/2006. We find force in his argument that merely because that they would be eligible to avail credit in future, would not disentitle them from availing the abatement under Notification 1/06-ST dated 1/3/2006, where the condition is specific on the availment of CENVAT credit and not laid down to eligibility of CENVAT credit in future. Regarding the demand for the period March, 2007 to April, 2008, prima facie, we find that the applicant had availed CENVAT credit on various input services which have nexus with convention service provided by them. Consequently, prima facie, we find that the applicant had not complied with the condition of Notification No. 1/06-ST dated-1/3/2006 relating to the period April, 2007 to March, 2008. No financial hardship has been pleaded - Conditional stay granted.
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2014 (6) TMI 241 - CESTAT NEW DELHI
Mandap Keeper service - Service provided to the Members in the club was brought to tax - Held that:- In view of the ratio laid down by Hon’ble High Court of Gujarat in the case of Karnavati Club Ltd. v. Union of India reported in [2009 (9) TMI 561 - GUJRAT HIGH COURT], the activities carried out by Safdarjung Club does not appear to be taxable service as Mandap Keeper. The relationship of client and employer is absent in the present case. Temporary parting with the facilities was not to the clients. Therefore, following the decision aforesaid Decided against Revenue.
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2014 (6) TMI 240 - CESTAT AHMEDABAD
Waiver of pre deposit - benefit of Notification No. 1/2006-S.T., dated 1-3-2006 - Non Payment of CENVAT Credit - Held that:- reversal of Cenvat credit if at the stage of appellate stage is sufficient compliance of the conditions of the notification. At this juncture, learned SDR submits that it has to be verified whether the amount which has been reversed by the appellant is the correct amount which was confirmed by the lower authorities on which credit was taken. At this juncture, as we find that the appellants have reversed the Cenvat credit taken due to which benefit of Notification No. 1/2006 had been sought to be denied, we allow the application for waiver of pre-deposit amount of Service Tax involved and direct the learned SDR to confirm to this Bench by 26-12-2011 as to whether the Cenvat credit amount has correctly reversed as claimed by counsel and recovery of the dues is stayed till the disposal of appeal - Stay granted.
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2014 (6) TMI 206 - CESTAT AHMEDABAD
Waiver of pre deposit - whether, when the entire service tax alongwith interest was paid by the appellant before the issue of show cause notice, there is a justification for imposing penalty - Held that:- prima facie, when the entire service tax alongwith interest is paid and there is no invocation of extended period on elements of fraud / suppression / misstatement, etc. then no penalty is imposable. Appellant has, therefore, made out a good case for complete waiver of the penalty imposed. Accordingly, it is ordered that there will be stay on the recoveries of the penalty till the disposal of this appeal - Stay granted.
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2014 (6) TMI 205 - CESTAT BANGALORE
Cargo Handling service - Support Service of Business or Commerce - whether all the activities undertaken by the appellant for M/s. RINL would come within the purview of ‘Cargo Handling Service’ or only a part of the activity would be covered within the definition of ‘Cargo Handling Service’ - Held that:- demand of ₹ 1.05 crore (approx) under the category of cargo handling services, the contract entered into by the appellant with M/s. RINL is for handling and internal transportation of stores materials within the Visakhapatnam Steel Plant site. The scope of the work included handling and internal transportation of stores materials such as plant, machinery, equipments, etc. at the plant site including crushing of coke breeze meant for Visakhapatnam Steel Plant, job contract for miscellaneous works awarded from time to time, supply of LCVs and packing of materials for transportation. Thus, a number of services are required to be provided by the appellant. While handling of stores materials along with internal transportation might merit classification under cargo handling service.
We have also pursued some of the invoices raised by the appellant on the service recipient which describes the activities as transportation and the payment is made to the appellant based on the quality of goods transported. Similarly, the appellant has provided labour for undertaking miscellaneous jobs and payment has been made to the appellant based on number of man-days involved. This service also would not come under the category of cargo handling service. Therefore, clubbing all the activities undertaken by the appellant under ‘Cargo Handling Service’ and levying service tax under the said category cannot be sustained in law. The adjudicating authority has to examine the individual activities carried out by the appellant and then classify the same, considering the definitions provided in the law, which has not been done - Matter remanded back - Decided in favour of assessee.
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2014 (6) TMI 204 - CESTAT BANGALORE
Waiver of pre deposit - CENVAT Credit - commercial/industrial construction services - Held that:- Definition of inputs service underwent a change on 1-3-2011 and because of the change, assessee became ineligible for Cenvat credit of Service Tax paid on input services used in relation to setting up of a factory which was available prior to 1-3-2011. The appellant had undertaken expansion of their cement plant and it was submitted that modernization, renovation or repair of the factory is covered and the activity undertaken by them is nothing but modernization of the factory. However, on going through the definition, we find that in clause A of the definition of ‘input service’ it has been specifically provided that the credit would not be available when the services are used for construction of a building or a civil structure or a part thereof. Prima facie, the appellants have taken credit on the services used for construction of the factory and therefore, the appellant is required to be put to terms to this extent at least. It has been submitted that the total amount payable within the normal period of limitation would come to about Rs. 6,00,000/-. The appellants are directed to deposit an amount of Rs. 6,00,000 within six weeks - Conditional stay granted.
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2014 (6) TMI 203 - CESTAT CHENNAI
Demand of Service Tax - profit earned on Ocean Freight Charges on exports and imports - Business Auxiliary service - Held that:- in regard to the demand of service tax on the profit earned on Ocean Freight Charges, the appellants and their counterparts in different countries do not prima facie appear to be taxable under the Head “Business Auxiliary Service”. As such, the pre-deposit of the demand relating to this issue is waived during the pendency of the appeal. As regards the other two issues at (ii) and (iii) above, learned counsel volunteers to pre-deposit the entire amount of service tax amounting to Rs. 6,90,702 - Conditional stay granted.
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2014 (6) TMI 202 - CESTAT AHMEDABAD
Service Tax liability - business auxiliary services - Revenue contends that appellant had shown miscellaneous income received as documentation charges during the course of high sea sales - Held that:- show cause notice proceeds on the ground that this activity will fall under the category of business auxiliary services without pin-pointing the correct head in the said BAS, will the income fall. First appellate authority has also not discussed this relevant point which was raised by the appellant before him during the time of appeal was filed. Prima facie, we are of the view that amounts received for the documentation charges for the sale made on high sea sale basis, may not be covered under the category of business auxiliary services. In view of this, we find that the appellant has made out a prima facie case for the waiver of the amounts involved. Application for waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeal - Stay granted.
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2014 (6) TMI 169 - CESTAT NEW DELHI
Business auxiliary services - Intellectual Property Right service - Procurement of master CD containing software opera - Held that:- demand of Rs. 64,11,347/- is covered by the earlier decision of the Tribunal in the case of Paul Merchants Ltd. [2012 (12) TMI 424 CESTAT, Delhi (LB)] and in the case of Gap International India Pvt. Ltd. [2014 (3) TMI 696 - CESTAT NEW DELHI] - As regards, the balance demand of Rs.31,78,587/- , we note that appellant admittedly started paying the service tax liability on such activities with effect from 16.5.2008, under the category of Information technology software. As such, the Revenue came to know about the activities of appellant at least with effect from 16.5.2008, the demand having been raised in the year 2011 is by invoking the longer period of limitation. The reasoning of the authorities below that appellant did not take the service tax registration and did not file any return cannot be adopted as the condition for invokation of longer period inasmuch as the question of limitation would admittedly arise in the case where no service tax has been paid. If non-payment of service tax is taken as one of the criterion for invokation of longer period of limitation, then the normal period would not be applicable, in any case of demand of service tax. As such, we prima facie agree with the applicant that longer period is not available to the Revenue - Reference made to Tribunal’s decision in the case of IBM India (P) Ltd. [2009 (7) TMI 487 - CESTAT, NEW DELHI] wherein Tribunal’s decision in the case of BCCI [2007 (5) TMI 24 - CESTAT, MUMBAI) and Glaxo Pharmaceuticals [2005 (7) TMI 25 - CESTAT, Mumbai] is relied upon - Stay granted.
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2014 (6) TMI 168 - CESTAT NEW DELHI
Service Tax demand - providing ‘franchise’ service to its dealers under a scheme of activity known as Maruti True Value Service - dealers are provided the right to use the proprietary system and business concepts owned and developed by the petitioner from time to time - Penalty u/s 77 & 78 - Interest u/s 75 - Held that:- Referring the earlier decision [2011 (1) TMI 729 - CESTAT, NEW DELHI] involving the simplifier issues of the same party, wherein it was observed that, Prima facie, the applicants are rendering the franchise services, appellant directed to pre-deposit an amount of Rs. 2,00,00,000/- (Rupees Two Crore) - stay granted partly.
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2014 (6) TMI 167 - CESTAT BANGALORE
Denial of refund claim - Resubmission of claim - Bar of limitation - whether resubmission of the refund claim by the appellant would be hit by limitation as provided under Notification No.41/2007-ST as amended by Notification No.32/2008-ST - Held that:- appellant had filed refund claim on 31/03/2009 on the last day when the refund claim needs to be filed for the period from July 2008-September 2008. Revenue has not challenged the refund claim on merits before the first appellate authority. This would mean that the appellants are eligible for the refund of the amount of service tax paid by them and claimed by them. On perusal of the clause 2(f), the said clause talks about submission of refund claim accompanied by the documents evidencing (i) export of goods, (ii) payment of service tax on the specified services for which claim for refund of service tax and (iii) wherever applicable, a copy of the written agreement entered into by the exporter with the buyer of the goods. The only proof, which the appellant could not produce or submit when they filed refund claim was in respect of payment of service tax. Subsequently it has been rectified and informed that the appellant had been able to submit proof of payment of service tax along with bank realization certificate, I find that the view taken by the first appellate authority is incorrect, unsustainable as substantive benefit should not be denied to an assessee if conditions are fullfilled. - Decided in favour of assessee.
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