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Service Tax - Case Laws
Showing 121 to 140 of 144 Records
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2014 (6) TMI 166 - CESTAT MUMBAI
Receipt of commission - Business Auxiliary Service - activity of preparing Octroi form and depositing the same before the authorities for their clients - Held that:- activity undertaken by the applicant is not covered under Business Auxiliary Services, therefore, the applicant has made out a case for total waiver of service tax, interest and penalties. Accordingly, we waive the requirement of pre-deposit of service tax, interest and penalty and recovery thereof stayed during tine pendency of the appeal - Stay granted.
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2014 (6) TMI 165 - CESTAT BANGALORE
Waiver of pre-deposit and stay of recovery - commercial or industrial construction services - Held that:- the proposed levy is on the amounts collected by the appellant from M/s. Andhra Pradesh Tourism Development Corporation for construction of certain guest houses and for providing electrical power and water supply to a certain religious shrine - work done by the appellant under the agreement with Tourism Development Corporation was in the nature of ‘commercial or industrial construction’. The appellant has failed to make out prima facie case on merits. They do not plead any financial hardships either. In these circumstances, there will be a direction to the appellant to pre-deposit the Service Tax amount within six weeks - Conditional stay granted.
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2014 (6) TMI 136 - CESTAT MUMBAI
Nature of services provided to group companies - Management Consultancy Services - adjudicating authority has dropped the demand on the ground that the activity of Liaisoning & Representation are not consultancy services - Penalty u/s 76, 77 & 78 - Invocation of extended period of limitation - Held that:- there is no agreement for providing various services. Similarly, there is no invoice to understand the nature of service. However, going through the list of various activities, we note that what is being done is not executory routine or operational functions but the management function wherein the respondent is advising their other group companies to handle a particular issue in a particular manner and they also undertake such discussion with various other organizations such as financial organizations, banks, BCCI, Govt. bodies etc. - activities covered under the definition of management consultant. - Decided against the assessee.
Respondents had not taken the registration with the Service Tax department during the said period and therefore, no returns or documents were filed. There was no reason for the respondents not to take the registration. Facts were suppressed from the department. In view of these facts, we find that the conditions stipulated under the proviso to Sec. 73(1) of the Finance Act, 1994 are fulfilled and we therefore hold that the extended period of limitation has been correctly invoked. In view of the said position, penalty under Sec.78 is imposable. We, accordingly, imposed penalty under Section 78, equal to the duty amount. Penalty under Sec.76 as per the provisions existing at that point of time would be leviable. Similarly, penalty under Sec.77 would also be leviable - Decided in favor of Revenue.
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2014 (6) TMI 135 - CESTAT MUMBAI
Business Support Service - Infrastructural Support Service - appellants have provided Concrete Pumps on Rental Basis - Held that:- during the period May 2007 to January 2008 the appellants were paying tax under Business Support Service and the definition of the said service includes the "infrastructure support service" and the appellants were providing equipment alongwith operator and prima facie it cannot be concluded that the appellants were not providing infrastructure support service. In fact they were also providing Manpower and it was their duty to ensure proper functioning of the pumps. Under the circumstances prima facie it cannot be said that the tax being paid by them was incorrect, just because from 2008 onwards a new, specific entry was introduced in the tariff.
Agreement very clearly states that the rate mentioned are inclusive of all taxes and levies. I have also gone through the invoices produced. It is seen that the appellants have been charging based upon the quantity of the concrete pumped through the equipment installed by them and the rate is fixed on that basis. Thus, the charges are not in the nature of rental for a particular day or particular period but with reference to the work performed. Invoices do not indicate any tax element separately. Under the circumstances, it has to be held that the rates quoted and amount collected are inclusive of service tax.
Since the charges were inclusive of all taxes which includes service tax and the appellant has not brought any evidence to indicate that they have refunded any service tax to their customers in my view the doctrine of unjust enrichment would be applicable in the facts and circumstances of the case. Appellant had no doubt about the applicability of tax during the relevant period. The fact that in the balance sheet for 2007-08, which was prepared after filing the refund claim, shows the amount as receivable will not make any difference in the peculiar facts and circumstances of the present case. The calculation sheets produced to prove that tax was not paid as cum tax basis will also not make any difference. - Decided against assessee.
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2014 (6) TMI 134 - CESTAT BANGALORE
CENVAT Credit - demand of interest towards amount paid using cenvat credit - omission in the return regarding cenvat details due to system error - Held that:-appellant had maintained the CENVAT credit account and they have taken the credit on the relevant dates and they have also made debit entries and they have also reflected the same in the column 4a and 4b. The only problem that has arisen is column 5a and 5b of the return could not be filled because of the difficulty in taking opening balance and difficulty in making entries. According to Rule 9 of CCR, what is required for availing CENVAT credit is, input service should have been received, the documents should be the one which are recognized as acceptable for availing CENVAT credit and input services should have been utilized for providing the output services. There is not even a whisper about any problem in these areas.
If there is substantive compliance with the law and in fact the services have been received and credit entries and debit entries are made in the returns, in our opinion, just because of some omission in the returns, there cannot be a situation wherein an assessee is to be treated as not having paid the service tax at all. Unfortunately, there is no penal provision invoked and no penalty has been imposed, which in our opinion could have been justified especially in view of the arguments advanced by the learned AR that the assessee is at fault since when they faced problems in filing the returns on system, they could have filed returns manually and in such a case legally they would have been perfectly correct. - Decided in favour of assessee.
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2014 (6) TMI 133 - CESTAT AHMEDABAD
Maintenance and repair services - CENVAT Credit - Held that:- warranty is provided by the appellant and a service provider is ensuring repairs and maintenance during the warranty period and the service provider has been engaged by the appellant only. The obligation to ensure smooth running of the machinery supplied by them during the warranty period is on the appellant only and not on the service provider. The service has been provided to the appellant only in view of the above position. Having regard to the facts and circumstances of this case which are similar to the facts and circumstances in the case of Danke Products [2009 (7) TMI 137 - CESTAT, AHMEDABAD], appellant is eligible for the Cenvat credit availed by them - Decided in favour of assessee.
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2014 (6) TMI 132 - CESTAT KOLKATA
Waiver of pre deposit - mining of coal service - Cargo handling service - Held that:- to attract levy of Service Tax for cargo handling, the service provider has to be a cargo handling agency which is to say the main business must be cargo handling. We are also of the view that the nature of the contract also has to be considered to come to the conclusion whether the service attracts levy of Service Tax or not. In this case the nature of transaction apparently is one of sale. It was vehemently argued by the learned Commissioner (AR) that in this case the service has to be segregated and it is a divisible contract. This according to him is because Silo charges are collected because of a different Notification of Govt. of India. Even though we find some force in this argument, because of the definition of the service and service provider which we have discussed above, we feel that whether consideration of these arguments would affect the main clause or not would also require an in depth consideration and detailed analysis. Further in view of the complex issues involved when the legal aspects which we have discussed above, the Appellant also has a strong case as regards limitation - Prima facie case in favour of assessee - Stay granted.
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2014 (6) TMI 130 - PUNJAB & HARYANA HIGH COURT
Condonation of delay - Whether there was sufficient cause for condonation of delay in filing the appeals before the Commissioner (Appeals) which were belated - Held that:- There was sufficient cause for condonation of delay. The adjudicating authority had decided the matter on 31.1.2011 and a copy thereof was sent to the appellant on the same day. However, the appeal before the Commissioner (Appeals) was required to be filed on or before 30.4.2011, i.e. within the stipulated period of limitation of three months. But the appellant filed the appeal before the Commissioner (Appeals) on 8.1.2013, after a delay of more than 20 months. In the other appeal, there is delay of 24 months in filing the appeal. The plea of the appellant is that the proprietor of the assessee-firm was not in a good state of mind and was going under medical treatment for the last three years and, therefore, could not pursue the matter. Such plea does not stand substantiated in the facts and circumstances of the present case. There has been an inordinate delay of more than 20 and 24 months in filing the appeals - no question of law much less a substantial question of law arises in these appeals - Decided against assessee.
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2014 (6) TMI 98 - CESTAT NEW DELHI
Waiver of pre deposit - Remittion of service tax consequent on under-disclosure of the total consideration received for providing the taxable ‘banking and other financial’ services - Held that:- so far as operating lease/ hire purchase transactions are concerned, on which demand of Rs. 35,47,359/- is confirmed, that Notification No. 4/2006-ST dated 01.03.2006 has exempted levy of service tax to the extent of 90% on financial leasing services including equipment leasing and hire purchase as defined in Section 65(12)(i) of the Act and on the interest component received on these transactions. The benefit of this exemption was claimed before the adjudicating authority, who adverted to the claim but failed to deal with the same and simply assessed tax on this aspect at the full rate. It is contended by ld. Counsel for the appellant and this contention is not disputed by that ld. DR that tax liability on operating lease/ hire purchase transactions, if taxable and after granting the benefit of exemption Notification No. 4/2006-ST would be about Rs. 40,000.
Prima-facie invocation of the extended period is not justified. We therefore grant waiver of pre-deposit and stay of all further proceedings for recovery of the adjudicated liability, on condition that the appellant remits Rs. 2 lakhs (comprising the interest demand on cenvat credit availed plus the service tax payable (after exemption benefit) on operating lease/ hire purchase) within four weeks - stay granted partly.
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2014 (6) TMI 97 - CESTAT MUMBAI
Waiver of pre-deposit of service tax - construction of complex service and commercial and industrial construction service - Held that:- land owner executed a power of attorney in favour of the applicants for entering upon the land for construction of the complex. The title of the land is not transferred to the applicants. In these circumstances, prima facie we find that the applicants are not the owner of the land on which the complex is constructed. As the applicants had undertaken construction of complex service which is taxable, therefore, prima facie the applicants have not made out a case for total waiver of the service tax - Conditional stay granted.
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2014 (6) TMI 96 - CESTAT AHMEDABAD
Waiver of pre-deposit of Service Tax liability - Port services - differential Service Tax - charge for the wharfage - water lee way charges - Held that:- agreement entered by GMB with various private parties in respect of minor ports in Gujarat State are similarly worded and the reduced rate of wharfage @ 20% of the normal wharfage charged by the appellant was given across the board to all the private parties who had constructed the infrastructures in the minor ports. We also note that the agreements in this case are the very same clauses as were in the agreements considered in the final order passed by this Bench on 01.08.2013 in as much as the infrastructure needs to be created by the private parties and same should be handed over to GMB on expiry of the lease agreement. The differences in the agreement and the facts as has been canvassed by the ld.Departmental Representative will not carry the case any further as in the case of M/s Dahej Harbour and Infrastructure Ltd, we find that the appellant therein was a special purpose vehicle created by private party, who constructed the infrastructure in the said minor ports.
GMB is an appellant before us and the Service Tax liability which has been adjudged against them is on an identical ground as was in their own case. We are of the considered view that for the purposes of waiver of the amounts involved, the ratio laid down by the Bench in their own case will apply. We also record that the reasoning adopted by this Bench for directing pre-deposit in the case of M/s Dahej Harbour and Infrastructure Ltd may not apply in the case in hand as in the appellants (GMB) own case we have held on an identical issue in their favour. appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved - Stay granted.
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2014 (6) TMI 95 - CESTAT KOLKATA
Condonation of delay - as data had to be collected from different collection centres and due to system failure assessee were enforced to calculate manually the exact receipt of Service Tax received from their customers and due to change of system in their software package, the Appellant could not file the Appeals in time - Held that:- Impugned Orders had been received by the Appellant on 31-10-2006 and they were required to file the Appeals on or before 31-1-2007. But they did not file the Appeals within the stipulated time and could only file the same before this Tribunal on 29-2-2008 with a delay of 394 days. The reasons for delay contended by the Appellant that there was a system failure in their software system, which got updated only in between September, 2006 to November, 2007. But the Appellant has not explained the cause of delay in filing the Appeals after November, 2007. It is also apparent on record that instead of filing the Appeals before this Tribunal on or before 31-1-2007, the Appellant approached before the Hon’ble High Court of Patna only on 15-1-2008, when the Department had commenced the recovery proceedings in November, 2007 itself, and by that time, they had not applied for clearance from the Committee on Disputes, to file the Appeals before this Tribunal.
Delay should not be intentional and day-to-day delay in filing appeals has to be explained upto the satisfaction of the Courts. In this case, the Appellant has not explained which factors caused them to challenge the impugned Orders by way of a Writ before the Hon’ble High Court of Patna, when their counsel himself had advised them that if the Appeals are to be filed, those should be filed before this Tribunal. Moreover, the preambles of the impugned Orders clearly stated that the appeals are maintainable before this Tribunal only. The Appellant has also failed to explain the delay of another three months after upgradation of the system in Nov. 2007. In these circumstances, we hold that the Appellant has failed to explain satisfactorily the cause of delay in filing the Appeals. Therefore, the Applications for condonation of delay are dismissed - Condonation denied.
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2014 (6) TMI 94 - CESTAT NEW DELHI
Waiver of pre deposit - management, maintenance and repair service - non existence of written contract - period from 16-5-2005 to 31-3-2008 - Held that:- for providing such service, the same must be provided under a contract. Admittedly, in the present case, there is no contract entered into by the appellant with Madhya Pradesh Government - The show cause notice for the period from 16-5-2005 to 31-3-2008 was issued on 10-11-2008 and as such the major part of the demand is beyond normal period of limitation. It is seen that the Commissioner, while confirming the demand, has not imposed any penalty on the appellant by holding that there was reasonable cause to entertain the belief that the service was non-taxable, by invoking the provisions of Section 80 of Finance Act, 1994. If there was reasonable cause for entertaining belief that the service provided by the appellant does not amount to taxable service, as held by the Commissioner, the same ground would be available to the appellant for pleading the limitation aspect. As such, at this prima facie stage, we are of the view that the appellant is not required to deposit any amount of duty as condition of hearing of their appeal. - Following decision of Ashoka Infraways (P.) Ltd. Versus Commissioner of Central Excise, Nashik [2011 (5) TMI 152 - CESTAT, Mumbai] - Stay granted.
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2014 (6) TMI 68 - CESTAT MUMBAI
Non deposit of service tax - Tax collected from customers - Held that:- In the show-cause notice dated 24.07.2005 the only allegation against the respondent is that the respondent has paid the service tax with a delay. Therefore, demand of interest and a penalty was also proposed for the period from April 2002 to October 2003. In the show-cause notice date d03.10.2007 also the demand is for the same period from April 2002 to October 2003, and the allegation is that the respondent has not paid the service tax in time. On perusal of the annexure to the show-cause notice, it appears that there is no short payment made by the respondent. In these circumstances, as there is no short payment of service tax, the show-cause notice dated 03.07.2007 was not required to be issued as for the same period, proceedings against the respondent has already been commenced through a show-cause notice dated 24.07.2005, In these circumstances, I do not find any infirmity with the impugned order and the same is upheld - Decided against Revenue.
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2014 (6) TMI 67 - CESTAT MUMBAI
Penalty u/s 76, 77 & 78 - Simultaneous penalty u/s 76 & 78 - Held that:- As held by the Hon'ble Karnataka High Court in the case of Motor World (2012 (6) TMI 69 - KARNATAKA HIGH COURT) penalties under section 76 and 78 cannot be imposed simultaneously. Therefore, penalty imposed under section 76 is dropped. Further I find that no option was given to the appellant to pay 25% of duty as penalty. As they have paid the service tax along with interest before the issuance of show-cause notice, as per the provisions of section 11AC of the Act, the penalty is reduced to 25% of duty which is to be paid within 30 days from today failing which they would be liable to pay 100% of the duty amount as penalty - Decided partly in favour of assessee.
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2014 (6) TMI 66 - CESTAT AHMEDABAD
Classification of service - whether the services provided by the appellant can be considered to be one of the Consulting Engineer services or whether the same has to be considered as Intellectual Property Service - Held that:- Even if it is presumed that the agreement for sale of knowhow also includes some element of consideration for imparting Consulting Engineer services then also the same is required to be quantified by the Revenue and brought out for making the demand which is not done by the Revenue. At the same time it is apparent from the relied upon judgments that an agreement for sale of technical knowhow has to be considered only as Intellectual Property Service under Section 65(55A) of the Finance Act, 1994 and cannot be considered as scientific or technical sale consultancy services as defined under Section 65(92) of the Finance Act, 1994 - service provided by the appellant belong to the category of Intellectual Property Service which was made effect from 10.09.2004. As the services by the appellant were provided during the period prior to 10.09.2004, therefore, no service tax is leviable upon the appellant in the present proceeding - Following decision of Kopran Ltd. Versus Commissioner of Central Excise, Raigad [2011 (3) TMI 224 - CESTAT, MUMBAI] - Decided in favour of assessee.
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2014 (6) TMI 65 - CESTAT NEW DELHI
Waiver of penalty u/s 80 - Penalty u/s 76, 77 & 78 - Banking and Other Financial services - Held that:- Respondent is a Government of Madhya Pradesh Undertaking and it is difficult to believe that nonpayment of service tax was on account of their intention to evade the service tax. Moreover, the Respondent’s activity became taxable in the budget of 2004-2005 and it is very much possible that they were not aware that their activity would attract the service tax. In view of this, we are satisfied that the non-payment of service tax by the respondent was not due to any mala fide intention on their part and, hence, this is a fit case for invoking the provisions of Section 80. Therefore, we do not find any infirmity in the impugned order setting aside the penalty on Respondent under Sections 76 and 78 of the Finance Act, 1994 - Decided against Revenue.
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2014 (6) TMI 64 - CESTAT NEW DELHI
Waiver of pre deposit - Short payment of Service Tax - Take over of company - Held that:- though M/s. Satcom Network had been taken over by the appellant, Service Tax liability in respect of the value of the services provided was not being fully discharged. However, if during the years in respect of which the exemption under Notification No. 6/2005-S.T. as sought to be denied to the appellant and Service Tax is demanded, they would be entitled for Cenvat credit in respect of input services. However, even if the Cenvat credit in respect of input service is allowed, there would be some net Service Tax demand. In view of this, this is not the case for total waiver - Conditional stay granted.
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2014 (6) TMI 34 - CESTAT NEW DELHI
Club or Association service - principle of mutuality - Held that:- In light of the judgment of Jharkhand High Court in Ranchi Club Ltd. vs. CCE & ST, Ranchi Zone reported in [2012 (6) TMI 636 - Jharkhand High Court] and of the Gujarat High Court in Sports Club of Gujarat Ltd. vs. Union of India reported in [2013 (7) TMI 510 - GUJARAT HIGH COURT], both of which had followed the judgment of the Supreme Court in Joint Commercial Tax Officer, Harbour Division, II - Madras vs. The Young Men’s Indian Association reported in [1970 (2) TMI 87 - SUPREME COURT OF INDIA], the position is no longer res-integra. The services provided by a club to its members is covered by the principle of mutuality and would not amount of rendition of service by one person to another and therefore would not amount to a taxable service - Decided in favour of assessee.
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2014 (6) TMI 33 - CESTAT AHMEDABAD
CENVAT Credit - GTA Service - Place of removal - Whether the appellant, could utilize CENVAT Credit for discharging its service tax liability on GTA service received in respect of inward transportation of inputs for the period from October 2005 to September 2006 beyond place of removal - Held that:- By the amendment made with effect from 1st April, 2008 substituting the word ‘from’ by the word ‘upto’ all that has been done is to clarify the issue. Neither the services rendered to the customer for the purpose of delivering the goods at the destination was covered by the definition of input service prior to 1st April, 2008, nor is the same covered after 1st April, 2008. If the definition provided in Section 2(l)(ii) is read a whole, if would appear that outward transportation charges or taxes paid in regard thereto is claimable only with regard to those transports which were made from one place of removal to another place of removal.
Therefore, it is held that the CENVAT Credit of service tax paid by the appellant on GTA service received in respect outward transportation of finished goods beyond the place of removal is not admissible to them. The lower authorities have thus correctly disallowed the credit of ₹ 5,02,949/- along with appropriate interest. On the aspect of imposition of penalties on the appellant on the second issue, I set aside the penalty of ₹ 1,00,000/- imposed upon the appellant under Rule 15(1) of the CENVAT Credit Rules, 2004 as the issue involved was one of interpretation of definition of ‘input service’ under Rule 2(l) of the CENVAT Credit Rules, 2004 and was under litigation - Commissioner of Central Excise, Kolkata-VI Vs. Vesuvious India Limited [2013 (12) TMI 1025 - CALCUTTA HIGH COURT] - Decided partly in favour of assessee.
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